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Amendment or revision?
Marriage initiative’s fate may depend on a single word
In a press release issued last week, the National Center for Lesbian Rights, Lambda Legal, the American Civil Liberties Union and Equality California claimed that a November ballot initiative that would define marriage as a union between a man and a woman is unconstitutional. The four groups filed a petition with the state Supreme Court on June 20, asking it to remove the initiative from the ballot because, “the rules for revising the California Constitution were not properly followed.”
[Volokh062808.jpg]]The argument of the four groups against the initiative turns on the distinction in constitutional law between an amendment and a revision. The California Constitution allows voters to amend the Constitution by initiative, but not to revise it. A revision of the Constitution requires a two-thirds majority in both houses of the state legislature to submit to the voters either a proposal to call a constitutional convention or to place the proposed revision before the voters directly. In the latter case, the voters need only approve the revision by a majority vote for it to become law.
What is the difference between a constitutional amendment and revision? The state constitution does not say. But, in a June 23 entry on his blog Volokh.com, UCLA law professor Eugene Volokh referred to the 1990 case, Raven v. Deukmejian, in which the state Supreme Court struck down a ballot initiative, not only, said the court, because it “unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution…”
The initiative, said the court, would revise rather than amend the Constitution, not by restricting a specific right of the judiciary, but because it “involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution.”
The pro-homosexual marriage groups that filed the lawsuit against the November marriage initiative have argued that it is revision because it would undermine the “basic principle of equal protection of the laws.” But Volokh points to two other state courts that have faced identical challenges to proposed marriage amendments (Bess v. Ulmer, Alaska Supreme Court, 1999; and Martinez v. Kulongoski, Oregon Court of Appeals, 2008.) These courts concluded that the proposals were amendments, not revisions. The decision in Bess, which relied, said Volokh, on California precedents, concluded, “few sections of the Constitution are directly affected, and nothing in the proposal will ‘necessarily or inevitably alter the basic governmental framework’ of the Constitution.”
The Rest Here
Marriage initiative’s fate may depend on a single word
In a press release issued last week, the National Center for Lesbian Rights, Lambda Legal, the American Civil Liberties Union and Equality California claimed that a November ballot initiative that would define marriage as a union between a man and a woman is unconstitutional. The four groups filed a petition with the state Supreme Court on June 20, asking it to remove the initiative from the ballot because, “the rules for revising the California Constitution were not properly followed.”
[Volokh062808.jpg]]The argument of the four groups against the initiative turns on the distinction in constitutional law between an amendment and a revision. The California Constitution allows voters to amend the Constitution by initiative, but not to revise it. A revision of the Constitution requires a two-thirds majority in both houses of the state legislature to submit to the voters either a proposal to call a constitutional convention or to place the proposed revision before the voters directly. In the latter case, the voters need only approve the revision by a majority vote for it to become law.
What is the difference between a constitutional amendment and revision? The state constitution does not say. But, in a June 23 entry on his blog Volokh.com, UCLA law professor Eugene Volokh referred to the 1990 case, Raven v. Deukmejian, in which the state Supreme Court struck down a ballot initiative, not only, said the court, because it “unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution…”
The initiative, said the court, would revise rather than amend the Constitution, not by restricting a specific right of the judiciary, but because it “involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution.”
The pro-homosexual marriage groups that filed the lawsuit against the November marriage initiative have argued that it is revision because it would undermine the “basic principle of equal protection of the laws.” But Volokh points to two other state courts that have faced identical challenges to proposed marriage amendments (Bess v. Ulmer, Alaska Supreme Court, 1999; and Martinez v. Kulongoski, Oregon Court of Appeals, 2008.) These courts concluded that the proposals were amendments, not revisions. The decision in Bess, which relied, said Volokh, on California precedents, concluded, “few sections of the Constitution are directly affected, and nothing in the proposal will ‘necessarily or inevitably alter the basic governmental framework’ of the Constitution.”
The Rest Here
