Constitutional Amendment to Ban Same-Sex Marriage

The recent California Constitutional Right to Marry case calls into question the currently proposed “Limit to Marry” Voter Initiative Constitutional Initiative. If Secretary of State Debra Bowen places it on the ballot, she would be wise to have the Legislative Analysts’ opinion consider the following cited cases and also discuss the issue with Attorney General Jerry Brown to inquire whether or not the proposed initiative can even be legally placed on the ballot. California Governor Arnold Schwarzenegger, Assembly member Mark Leno, San Francisco Mayor Gavin Newsome, and Equality California Executive Director Geoff Kors, and one of the main attorneys on the winning side of the marriage case, David Codell would be wise to immediately contact Bowen and Brown to raise the issue of the legality of the proposed initiative so that the voters of California are properly informed that there may be a potential problem in enacting the initiative if it passes this November (assuming it qualifies for the ballot). As noted in McFadden v. Jordan (1948) 32 Cal.2d 330, 333: “The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.” The proposed initiative appears to now attempt to revise the California Constitution to remove the fundamental right to marry and equal protection that gays and lesbians are now afforded under the California Constitution.With that in mind, the Secretary of State must be aware of the following case: Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313: Article XVIII of the California Constitution allows for amendment of the Constitution by the Legislature, or initiative and revision of the Constitution by the Legislature, or a constitutional convention. There is no other method for revising or amending the Constitution. (Livermore v. Waite (1894) 102 Cal. 113, 117, 36 P. 424 (Livermore).)