Readers of Patterico, Boi from Troy and others are aware of a recent moronic editorial that ran in last week’s L.A. Times with regard to Ass. Bill 849 and the ongoing court challenges to Proposition 22. In that moronic editorial, the L.A. Times staff argues that Governor Schwarzenegger could have headed off the court challenges to Prop 22 by signing AB 849 rather than vetoing it. These legal eagles write:

IT COULD have been different. If Gov. Arnold Schwarzenegger had signed a bill in 2005 legalizing same-sex marriage instead of vetoing it, the California Supreme Court would have been spared the task of deciding, as it probably will this year, whether a voter-approved ban violates the state Constitution’s guarantee of equal protection under the law.

Apparently, the Times staff’s opinions were too important to be sullied by Article II, Section 10(c) of the California Constitution, which says this:

… or even to read Section 8 of AB 849 itself, which says this:

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.

Thus, by Leno’s own written admission, passage of AB 849 would have resulted in two dueling statutes in the California Family Code, reading as follows:

300. (a) Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).
(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.

308.5 Only marriage between a man and a woman is valid or recognized in California.

Put those two statutes together, and you’re left a California law defining single-sex unions as “marriages” that are neither “valid” nor “recognized” in California, hardly a result any SSM advocate would be proud of. The Dog Trainers make a really, really lame attempt to dodge this problem, noting the alleged constitutional infirmities of Prop 22:

But Schwarzenegger said he had to respect Proposition 22, approved in 2000, which states: “Only marriage between a man and a woman is valid or recognized in California.” Whether committed same-sex couples will be relieved of second-class status now depends on the state Supreme Court. And as Superior Court Judge Richard A. Kramer’s ruling notes, the state Constitution trumps any ballot question and entitles same-sex couples to what he called “the last step in the equation: the right to marriage itself.”

Kramer’s opinion was reversed on appeal, so I’m not sure why the legal eagles see fit to cite it as authority, but even so, neither his opinion nor any other published or unpublished opinion of which I am aware authorizes the legislature to usurp the role of the courts in determining the constitutionality of any statute, let alone an initiative statute they do not like. Even Ass. Bill 849’s author, Mark Leno, was not that brazen, writing further in Section 8 of the bill that:

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.

Thus, whatever merit there may be to the view that Governor Schwarzenegger should have signed a blatantly unconstitutional (and therefore meaningless) bill, there is none whatsoever to the notion that doing so would have mooted the court challenge rather than complicating matters further. I alerted “Readers Rep” to the error, which – surprise, surprise – was deemed not correctable. The email exchange appears below the fold.

Thanks for writing regarding Jan. 3 Times editorial, “Let no judge put asunder.”

The item you are writing about doesn’t appear to warrant correction, as it reflects an expression of opinion. I get that you have a different take on the same-sex marriage bill, though, and that you believe strongly that the editorial’s premise is false in its take on the facts.

It occurs to me that you may wish to state your view in a letter to the editor, for possible publication in the opinion section where the editorial ran. (The readers’ rep office is in the newsroom, which is a separate operation from the opinion pages.)

Here are the instructions that editors there provide:

If you would like to make a comment about a specific news article, editorial or commentary and have it considered for publication in the newspaper as a Letter to the Editor, please send it to letters@latimes.com — send well-written individual letters only; no group e-mails. Do not send attachments.

Letters should be brief, and may be edited. They become the property of The Times and may be republished in any format. Please include your full name, mailing address and daytime phone number (your number will not be published). For complete guidelines, call (800) LATIMES, Ext. 74511.

By mail:

Los Angeles Times
202 W. 1st St.
Los Angeles, CA 90012
By fax: (213) 237-7679
E-mail: letters@latimes.com

Thank you,

Kent Zelas
Asst. Readers’ Rep.

I responded:

With all due respect, opinions are opinions and facts are facts. Whether Governor Schwarzenegger should or should not have signed AB 849 is a matter of opinion. The notion that doing so would have mooted the constitutional challenges against Prop 22, which AB 849 does not amend, is a question of fact, and one your staff simply got wrong. Is it your policy that factual errors are not correctable, solely because they appear in editorials rather than news stories?

To which Kent responded:

Thanks for your further thoughts.

Factual errors are correctable when they appear in editorials; however, from what I’m hearing about this, the facts are not as clear and unquestionable on the constitutional issues you are writing about. In other words, I’m seeing that there are differences of opinion about what the same-sex bill might have brought had it been signed into law by the governor.

Kent Zelas

Uh, huh. I then responded one last time, and have yet to receive a response:

There is reasonable debate over whether or not the California Supreme Court will ultimately uphold Prop 22 as constitutional. There is NO reasonable debate, however, over your staff’s spurious claim that AB 849 would have mooted the issue and “spared” the courts the trouble of having to rule on it. Even the bill’s author, Mark Leno, knew the Legislature had no power to repeal Prop 22 without a popular vote, and that any challenges to that statute would have to be resolved by the courts. He admits as much in Section 8 of the bill in question, which states in relevant part:

The Legislature further finds that the constitutional infirmities of Section 308.5 of the Family Code [Prop 22], 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.

Yet the LA Times staff claimed the opposite, namely that the Legislature, not the California Supreme Court, is the government body that has the authority to end inquiry surrounding Prop 22, and that AB 849 would have accomplished exactly what it says it would NOT have accomplished. That’s not a “difference of opinion.” It’s arguing from a position of ignorance, both with regard to Article II, Section 10(c) of the California Constitution, and with respect to the plain language of the bill itself.

Thus far, no response, no correction, and no published letters to the editor challenging this idiotic premise. Will keep you posted if any of that changes. Don’t hold your breath.