Via Opine Editorials, I recently learned of a blog called Marry in Massachusetts, whose blogger in chief calls himself/herself/itself Mass Marrier and uses the royal “we.” As his/her/its/”their” gay-marriage-obsessed name might suggest, Mr. Marrier was not happy with the recent California appellate decision upholding Proposition 22. He was even less thrilled with California Governor Arnold Schwarzenegger’s decision to veto Ass. Bill 849, which would have violated it. In a manner that would make Goebbels proud, MM wrote in a comment:
Give it a rest. We have representative government, allegedly. Schwarzenegger was so off-base in that veto, I can only hope the high court there jumps all over him in their decision.
Apparently, MM thinks that courts can overrule vetos, which somehow violate “representative” democracy when a democratically elected governor vetoes a bill narrowly passed by a gerrymandered Legislature because it violates a democratically enacted initiative. When I pointed out the Prop 22 problem, he responded by making up nonexistent California law:
Proposition 22 amended the Family Code. It can be challenged in court on a variety of legal bases, as well as overturned by the legislature. That’s California law, and typical of most states.
It’s also a crock. California law – more specifically, Article 2, Section 10(c) of the California Constitution clearly states that the Legislature may amend or repeal an initiative statute only by putting the issue to a popular vote, unless the initiative itself says that they can amend it on their own (which very few initiatives do, and Proposition 22 is no exception). Even Mark Leno, the author of the blatantly unconstitutional bill in question, understands this. That’s why Section 8 of that turkey says this:
SEC. 8. The Legislature finds and declares that this act does not amend or modify Section 308.5 of the Family Code, as enacted by an initiative measure, to the extent that Section 308.5 addresses only marriages from other jurisdictions. The Legislature further finds that Sections 300 and 308.5 of the Family Code have been declared unconstitutional by a state coordination trial judge appointed by the Judicial Council, and the Legislature declares that the purpose of this act is to correct the constitutional infirmities of Section 300, which was enacted by the Legislature. The Legislature further finds that the constitutional infirmities of Section 308.5 of the Family Code, which was enacted through the initiative process, cannot be corrected by the Legislature and that the California Supreme Court is the governmental body that has authority to make a final determination regarding the meaning, validity, or invalidity of Section 308.5.
… rather than this:
SEC. 8. Section 308.5 of the Family Code is repealed.
I alerted MM to the infirmity of his argument thusly:
Wrong again. Can’t speak to “most states,” but in California, initiative statutes cannot be amended or “overturned” (I think the word you’re looking for is “repealed”) by the Legislature without a popular vote. The only exception is where the initiative specifically provides that it can be amended or repealed by the Legislature (very few initiatives do, and Prop 22 is no exception). The California Constitution (more specifically, Art. 2, Sec. 2(c), but who’s counting?) is very clear on that point.
To which MM responded:
Whoops, you got me there. That’ll teach me to spout off about laws I know nothing about without researching them first. Thanks for the tip!
Yes, the legislature can make a law that conflicts with and supersedes an initiative. Also, if you nose around here, you’ll find that we are in the camp that finds ballot initiatives much abused. They are like law suits, in which people can sue for almost anything. An initiative can pass that courts rule violates various laws and constitutions. One can pass that a legislature changes.
The smugness of we-passed-an-initiative-so-there is part of the process and larger picture. Initiatives are not absolute, even in California.
You are welcome to make your points on Opine.
On the one hand, the guy is a real ass to repeat a frivolous legal theory even after being shown the citation to the specific law that makes that theory frivolous. On the other, it sure was nice of him to “welcome” me to a blog he has nothing to do with. It’s too bad that the fact that California has a constitution, and that the words contained in such constitution might actually mean something, is a point that he’d rather not be confronted with there.
