Prop 8 Description Upheld in Court
August 8th, 2008
When the proponents of Proposition 8 distributed petitions to change the California Constitution to ban same-sex marriage, the title and summary prepared by the Secretary of State rightly noted that such an initiative would impose a limit on marriage to exclude same-sex couples from being added to the classes recognized.
Limit on Marriage. Constitutional Amendment.
Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state.
However, in May the California Supreme Court ruled that the state cannot restrict its recognition of marriage to opposite-sex couples and offer a separate and lesser recognition to same-sex couples. By doing so, they changed the fact pattern.
It is no longer true that “there would be no change to the manner in which marriages are currently recognized by the state.” It is no longer true that this proposed amendment would place a limit on which classes can have their marriage added to recognition status but rather it removes recognition from a class already recognized.
So the Attorney General rewrote the description to reflect the current situation:
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT.
Changes California Constitution to eliminate the right of same-sex couples to marry. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.
Gays and anti-gays both recognized that this change of description worked in the favor of those who oppose the initiative. The public is much less likely to remove a right from a class of citizens than it is to deny extending such a right in the first place.
Proponents of the amendment sued to have the language changed. They argue that “eliminates” is a “negative verb” and thus should not be used. They wanted language that did not discuss married same-sex couples at all or make any reference to the change in circumstances that would occur to such couples.
They did not succeed. Today Judge Timothy Frawley ruled that the language can stay (SF Chronicle):
“The attorney general did not abuse his discretion in concluding that the chief purpose and effect of the initiative is to eliminate the right of same-sex couples to marry,” Fralwey right. “The attorney general’s title is an accurate statement.”
The judge also restricted the language of arguments that Prop 8 supporters wish to place in the election pamphlets, though not as far as opponents sought. Supporters wished to state
“In health education classes, state law requires teachers to instruct children as young as kindergarteners about marriage … If the gay marriage ruling is not overturned, teachers will be required to teach young children there is no difference between gay marriage and traditional marriage.
“We should not accept a court decision that results in public schools teaching our kids that gay marriage is okay,”
According to the Bay Area Reporter
In his ruling, Frawley said, “As petitioners have established, current state law does not require school districts to teach anything about marriage or same-sex marriage at any grade level. Moreover, for those school districts that choose to include instruction about marriage as part of a health education curriculum, Education Code [section] 51240 requires that they allow parents to excuse their children from any such instruction conflicting with the parents’ religious or moral convictions.”
But the judge allowed the Proposition 8 supporters to claim that such conditions “could” or “may” occur. He also required other minor language changes.
Anti-gays have indicated that they will appeal the judge’s decisions.
UPDATE: (SF Chron)
The state’s official description of Proposition 8 on the November ballot will remain as is, a statement that the measure would eliminate same-sex couples’ right to marry in California.
Sponsors of the measure argued that the title and summary drafted by Attorney General Jerry Brown were argumentative and designed to encourage voters to oppose Prop. 8. But after two defeats in court last week, the Yes on 8 campaign said today it would not appeal to the state Supreme Court.