« Mad Cash for Katrina Victims | Main | Stuntz on Judicial Nomination Hearings »

Thursday, September 08, 2005

More on the Legislature vs. Prop. 22

Andrew Sullivan writes:

Schwarzenegger's argument is that Proposition 22 already settled the question. No, it didn't. When Proposition 22 was passed, there were no marriage rights for gay couples in California: they were already banned. Prop 22 was not about legalizing marriage rights for gay couples in California. The point and origin of Prop 22 was to prevent marriages in other states being automatically recognized by California. In the official arguments for and against the Proposition, the proponents argued:

When people ask, "Why is this necessary?" I say that even though California law already says only a man and a woman may marry, it also recognizes marriages from other states. However, judges in some of those states want to define marriage differently than we do. If they succeed, California may have to recognize new kinds of marriages, even though most people believe marriage should be between a man and a woman.

In the same document, they even underlined this point in capital letters:

THE TRUTH IS, UNLESS WE PASS PROPOSITION 22, LEGAL LOOPHOLES COULD FORCE CALIFORNIA TO RECOGNIZE "SAME-SEX MARRIAGES" PERFORMED IN OTHER STATES. That's why 30 other states and the federal government have passed laws to close these loopholes. California deserves the same choice.

The debate at the time centered entirely around that question. You can see that from the actual legal code that added Prop 22. Section 300 defines civil marriage. Section 308 defines recognition of out-of-state marriages. Proposition 22 was inserted at Section 308.5.

(emphasis added)

If he is correct, and I do not know whether he is, it sounds like a pretty reasonable argument on legislative construction.  At the very least, it supports Ethan's point (contra Kate) that some people might not have known what they were voting for.

If anyone wants to review the public arguments made regarding Prop. 22 at the time, I'd be very interested in seeing it.

Posted by Hillel Levin on September 8, 2005 at 03:13 PM in Hillel Levin | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d834a1ae7869e2

Listed below are links to weblogs that reference More on the Legislature vs. Prop. 22:

Comments

But if Prop 22 bans the recognition of out of state marriages, how could that survive a Full faith & credit challenge if California recognizes the same domestic marriages? Which means that signing the new statute, would directly negate the will of the voters.

Posted by: sklein11 | Sep 8, 2005 9:49:33 PM

Hillel wrote, (1) elect different legislators (isn't this the whole basis of the counter-majoritarian difficulty--that legislators are responsive to the people because their jobs depend on it?);

But that essentially forces the voters to become single-issue voters. Like I said earlier, I hate it when politicians enacts "morals" legislation. But I care more about fiscal conservatism than I care about gay marriage. Essentially, I'd be forced to a) vote against the representative based on his vote on one matter or b) stomach it. Putting me in that situation seems calculated to frustrate, rather than carry out, my will.

(2) hold a referendum to undo it. Oh, they could also amend the constitution.

I never liked this argument in the sepration of powers context either. ("We interpret the statute in this way, even though no one in Congress thought it would be interpreted this way. After all, if Congress doesn't like it, they can change it.") Anyhow, the same criticisms against that model of adjudication is analogous here, and I hereby incorporate them.

Also, here the representatives - who are supposed to represent the voters, after all - are placing the burden on the people. Telling the people, "Yeah, I know I'm supposed to represent you, and that you probably don't want this policy. But I'll enact it anyway. If you don't like it, do something about it." Again, it seems that in close calls, the legislature, as representatives of the people, shouldn't place the burden on the voters to fix undesirable laws.

I'm reminded of mandatory-seat belt laws. One headline (5-years later) proclaimed: "Police set goal of 50% compliance with seat belt law." Obviously, then, most people didn't want the seat belt law, but it was enacted anyhow. Yet the law was enacted because legislatures knew they could get away with it.

Anyhow, I'm all for letting lazy voters sleep in their own crap-filled nests. But that is visceral. If we're talking about an ideal democracy, then that would be one where the representatives didn't play sneaky games - and burden-shift - in an attempt to frustrate the will of the voters.

Posted by: Mike | Sep 8, 2005 8:30:50 PM

Mike:

It is not the legislator's business to tell the people what to do with their referendums. Whatever you think of such referendums (and I support the idea when it comes to major social issues, so long as some of the problems are addressed), the very nature of such referendums is that they come at the will of the people. The legislator is not in the business of threatening the people, particularly as referendums are the exception to the norm.

In any event, if the legislators enacted a disfavored law, the people have two recourses: (1) elect different legislators (isn't this the whole basis of the counter-majoritarian difficulty--that legislators are responsive to the people because their jobs depend on it?); or (2) hold a referendum to undo it. Oh, they could also amend the constitution.

But I do not see why the legislators must threated the people, when the people themselves can take care of themselves.

Posted by: Hillel Levin | Sep 8, 2005 5:01:32 PM

To solve the problem, the bill backers - before potentially frustrating the will of voters - should say this to the anti-gay marriage crowd: "Have the people vote directly on the issue whether they want to ban gay marriage by the next election. If you can't muster the support to get this on the next ballot, then we will enact this bill." That the legislatures want to bypass putting the issue directly before California is telling.

Posted by: Mike | Sep 8, 2005 4:54:40 PM

I know; I was just joking.

The thrust of my argument was that the other side would be wrong, if AS is right, insofar as it might argue that Prop 22 is unambiguous on its face.

Posted by: Hillel Levin | Sep 8, 2005 3:56:22 PM

I wasn't disagreeing with you--just pointing out what the other side would say.

Posted by: Ethan Leib | Sep 8, 2005 3:50:07 PM

Ethan:

Given the placement of Prop 22 in the code, as reported by Andrew Sullivan, there already is an ambiguity. Why would it be in the section concerning recognition of foreign marriages rather than in the section defining marriage? Thus, it is reasonable to look at legislative history.

I certainly agree that it was Arnold's choice to veto the bill. But that does not resolve the question of what Prop. 22 means, an open and reasonable question (assuming AS is right).

Besides, I was agreeing with you for heaven's sake!

Posted by: Hillel Levin | Sep 8, 2005 3:43:37 PM

As Volokh has suggested, the problem with this argument is that courts can't really look at legislative history if the face of the text is clear. There are other arguments available, however, about the placement of Prop 22 in the family law code. All this is besides the point now, alas: it is perfectly within AS's discretion to veto. I would argue that his "constitutional" arguments are very misguided; but he is entitled to his opinion--and I wouldn't want to suggest that the courts have the only say on constitutionality.

Election law superblogger Rick Hasen blogged this morning (http://electionlawblog.org/archives/003964.html) on a point I made yesterday: if the courts found Prop 22 unconstitutional, that would give effect to the new law passed by legislature even if one were sure that the new bill repeals or amends Prop 22. I would argue that there would be nothing unconstitutional about enacting Prop 22--it merely would be prevented from becoming effective under Art 11, sec 10(c) until it went out to the voters for approval. But this still presumes that Prop 22 would be clearly amended or repealed by the new law, something that remains an open question.

Posted by: Ethan Leib | Sep 8, 2005 3:36:28 PM

The comments to this entry are closed.