New Developments regarding California Marriage Equality

Did the California Supreme Court Pre-Empt the anti-gay initiative?

This legal analysist shows us how they may have done just that.

A Daily Kos diary breaks it down for us.

California citizens can amend the Constitution by ballot initiative, but they cannot change the fundamental parts of it (such as fundamental rights granted, and fundamental workings of the government) by ballot initiative. Changes of that scale are called revisions, and revisions can only be accomplished by a constitutional convention and popular ratification of the changes made by the convention, or by the Legislature passing the change and submitting it to the electorate for popular ratification.

With the CA Supreme Court ruling on May 15th, marriage was reaffirmed as a fundamental right in California, and furthermore, sexual orientation was placed into a protected category, subject to strict scrutiny. Therefore, a ballot initiative cannot take away that fundamental right, because that kind of a change is a revision of the Constitution, necessitating a constitutional convention. Additionally, any attempt to do so will come under the heading of strict scrutiny, which means that the government must show a compelling reason why it is excluding people from marriage. That cannot be done; there is no compelling reason. Ron George and his fellow justices made sure that they eliminated those arguments in their majority opinion.

And now there's a NEW POLL showing that a majority of Californians support marriage equality and oppose the anti-gay initiative.

The Field Poll result, released today, shows the highest level of support in more than three decades of polling Californians on the hot-button issue of same-sex marriage laws. The poll found 51 percent of registered voters favor the idea of allowing gay and lesbian couples to wed, while 42 percent disapprove.

An almost identical result was recorded in the random survey of whether voters favor an amendment to the state constitution that will likely appear on the November ballot, which seeks to define marriage as between a man and a woman: Fifty-one percent opposed that proposal, the survey reported, while 43 percent approved of the restrictive amendment.