Wednesday, September 07, 2005

The Constitutional Question

Savvy reader MS asks whether the legislature has the authority to pass AB 849 since it could be said to amend what was enacted by Prop 22 - Family Code Section 308.5. We'll return to this shortly. In the meantime, read the code section linked about, the text of AB 849 (this link, I believe, reads as it was passed, though this isn't the enrolled version yet), and, of course, the relevant Constitutional provisions are always nice.

More soon.

Update: According to a legislative counsel source, the likely answer is that Leno's bill is, in fact, unconstitutional. From reading the text of the bill, it seems that the author takes a rather tortured approach to Prop. 22's Family Code Section 308.5. Section 3(k) of the bill reads:

(k) It is the intent of the Legislature in enacting this act to end the pernicious practice of marriage discrimination in California. This act is in no way intended to alter Section 308.5 of the Family Code, which prohibits California from treating as valid or otherwise recognizing marriages of same-sex couples solemnized outside of California.
Section 3 lists the findings and declarations of the Legislature, which, while helpful and nice, are not binding unless deemed so (or accepted by the court) if an ambiguity exists in the actual text of the statute giving rise to the court's ability to turn to outside evidence on the legislative intent of the measure.

Section 4 of the bill, the operative language, provides in subsection (b):

b) Where necessary to implement the rights and responsibilities of spouses under the law, gender-specific terms shall be construed to be gender-neutral, except with respect to Section 308.5.
It would seem then that Leno is attempting to change every reference to gender in the relevant code section save the one that specifically limits the relevant defining language to one man, one woman.

Here's where it gets slightly arguable.

Though the numbering of the code isn't really part of the code itself (get meta with me here), it's still guiding insofar as definitions are taken to govern at least the articles in which the term is used, if not the division, chapter, or whole code, unless specifically stated otherwise.

Analyzing from the plain code (as opposed to the Lexis-added titled versions, etc), Section 308.5 is part of the Family Code, Division 3 (Marriage), Part 1. Part one is titled "Validity of Marriage." Marriage is not defined in Division one which contains general definitions we can reasonable conclude are meant to govern the whole of the Family Code.

Prop. 22's proponents made some odd choices when they placed the "Defense of Marriage" measure in front of voters. First, they didn't change the State Constitution, which I would maintain still prohibits the DOMA's selective language. Second, they chose (and I'm think they chose and not the AG, but I could be wrong and welcome correction - DR, are you reading this?) to insert the DOMA within Division 3 and specifically directly below Section 308 which reads:

308. A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.
And, if you recall, historically, California's DOMA was passed in direct response to actions in - was it - Vermont (or Mass or Hawaii). The fear was that some other state would allow men and men or women and women to marry and that California would have to recognize that marriage as valid.

So now we get into broader questions of interpretation - if the court even gets that far. Does it matter what was intended at the time? Or does it just matter what's actually written down? Mr. Justice Scalia, what do you think? And on this topic specifically?

It would lead to an absurd result then, if same-sex California couples could marry legally within the state, but a same-sex couple from another state could not marry in their home state and move to California and still have a legally recognized marriage within the State of California. Wouldn't they have to get remarried here, according to Leno's bill's contention?

The broadest theme here, of course, is that this is what happens when people get to much around in the code and add things wherever they want them added. The position of Section 308.5 within an Article shouldn't matter, but I bet you someone will make that argument. Its position within the Division or Code should matter, but who knows.

Of course, in the last few hours, we've received confirmation from the state's chief executive that he has no idea how laws actually are made, nor any diehard need to safeguard the lawmaking process for the branch constitutionally tasked with making them. Clearly, the theme of his entire administration has been to remove as much power from the legislative branch as possible (and yes, they are responsible for allowing some of that themselves, via bad press alone). The moral of the story: California lawmaking is so far from the ideal it's not even funny. And the man elected to govern all of it doesn't seem to care and is, in fact, responsible for a lot of it, and probably a lot of the bad that is to come.

Back to the Leno bill: with the courts acting the way they are (Prop. 77 and the death of the substantial compliance doctrine comes to mind), who knows how this would play out in court. Since I started this update, I've convinced myself it's less open-and-shut than I thought when I opened the "edit posts" page.

Time to seek out more expert commentary . . . .

Side note: It may be valuable to check out the ballot pamphlet from March 2000 when Prop. 22 was presented to voters. Note that while the pro-argument says it is the "Protection of Marriage Act," the actual text calls it "Defense of Marriage." The court only gets to the ballot arguments if there's ambiguity in the text. The pro-22 argument does cite actions in other states raising concerns, but doesn't say the measure is aimed solely at out-of-state marriage. And while I'm tempted to get all lit-major on the difference between "protecting" and "defending" something (I'd say the former implies pro-action; the latter, re-action), I won't right now. Also - I am far from an expert on the Prop. 22 litigation, which could/would shed light on that angle of this debate, though it's not done winding its way through the courts quite yet.


Anonymous said...

In your earlier post you wrote:

"That means the voice of the legislature is equal and able to override voter-enacted statutes."

Sorry but that is incorrect.

Leno's bill specifically doesn't strike Family Code Section 308.5 because if it did it would have to go to a statewide vote. Supporters of the bill don't believe they would be successful in a statewide vote which is why they artfully defined what that section of code means.

Unfortunately, the bill just isn't very well written and gives the governor plenty of reasons to veto it.

Leno would have been better off striking section 308.5 from the code. That would have forced the Governor to decide whether or not to send it to an electoral vote. It may not pass, but it would put Schwarzenegger in a tougher position since he said he had no objection to gender neutral marriage if voters agree.

cd said...

Anon -

If you note, the entire update section of this post acknowledges that I spoke too soon when I previously stated the legislature could change parts of initiative statutes. they may only change referendums or change initiatives when specifically allowed by the prop itself.

the question then becomes whether Leno's bill amends the section. which I address here - though admittedly, not completely and probably not wholly correctly either. but i'm working on it.

whether or not the bill is, in fact "well written" is debatable. depends on the goal, i suppose.

Devin said...

Frankly, I'm confused ... I was cheering when I read the news this morning, now I'm scratching my head. I was wondering how how Leno was getting around prop 22.

It seems that the idea is just to force the issue into the courts.

Anonymous said...

I agree with you Devin. I think that Leno and all know that the state supreme court has been very reluctant to tackle the question of gay marriage and the constituionality of denying the right. Now this bill, I guess if it were signed, would have been sent to the Supreme Court for how it impinges on Prop 22. Then we would finally have a showdown.

Anonymous said...

If the idea is to create a showdown in court, then should Schwarzenegger sign it? Schwarzenegger has stated (at least through his spokesperson) that he thinks the issue should be decided by the courts. What better way to get the question to the courts than to sign the law that creates a direct conflict.

I guess the court might be able to dodge it procedurally, saying that this law altered Prop. 22 and they could throw the law out. But I can't see how they don't get to the merits. Prop. 22 is inoperative if it's unconstitutional and then the law could take effect because it would act as if Prop. 22 weren't on the books.

Can we hold out hope that Schwarzenegger will sign it?

cd said...

sure, you can hope for whatever you want. I hope george bush will wake up with a sense of responsibility tomorrow.

as far as i understand it, as of today, prop 22 is out, pending appeal. i'm not sure how this bill would be litigated.

there's a good comment on AS's motivations in indicating a veto over at - basically, character-wise, Arnold's true colors are way out there now. he's just another of the politicians he claims to hate.

Devin said...

man, that would be so cool. That would be trippy, though. I mean, how would we react if GW all of a sudden started acting responsible. I mean, would we trust him? Would we take him seriously?

I guess we'll never know, but it would have been incredibly interesting to watch the fallout from Arnie signing the bill. I think with that act alone he could have almost completely resurrected his maverick image ....