CA Joint Legislative Resolution Opposing Prop 8 Introduced

On the second day of the new California legislative term two openly gay lawmakers (State Senator Mark Leno and Assemblymember Tom Ammiano) have introduced resolutions in their respective legislative chambers opposing the enactment of Proposition 8:

Both resolutions are sponsored by Equality California and were drafted by EQCA and the National Center for Lesbian Rights, plaintiff and lead counsel, respectively, in the marriage case brought before the California Supreme Court.

Leno’s Senate Resolution 7 and Ammiano’s Assembly Resolution (number to be assigned) specify that significant revisions to the Constitution mandate distinct procedures and require a two-thirds vote of each house of the Legislature before going to voters. The resolutions are co-authored by Sen. Christine Kehoe and Assemblymember John A. Perez, both members of the LGBT Legislative Caucus, and Senate Pro Tem Speaker Darrell Steinberg.

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“Proposition 8’s revision to the California Constitution violates key structural checks and balances built into our legal system,” said Sen. Leno. “Overnight, the constitutional protections of thousands of tax paying, law abiding California citizens were stripped from them by a simple majority vote, without a prior two-thirds vote by both houses of the legislature, thereby trampling on their fundamental right to equal protection.”

"Any major revision to the state Constitution should not be allowed to circumvent the legal system,” said Assemblymember Ammiano. “The fact is, Proposition 8 was improperly instituted through the ballot process without legislative involvement. I am proud to author this crucial resolution urging the courts to right the social travesty of Proposition 8 and ensure any similar future measures are approached in an appropriate and legal manner."

If it stands, Prop 8 would be the only California initiative to successfully change the California Constitution to take away a right from a targeted minority group.

Here is the text of the resolution:

WHEREAS, Article XVIII of the California Constitution mandates
distinct procedures for revision and amendment of the California
Constitution; and
WHEREAS, Article XVIII provides that, while a proposed amendment
to the California Constitution can be accomplished through the
initiative process, a proposed revision of the California
Constitution must originate in the Legislature and must be approved
by a two-thirds vote of each house of the Legislature before being
submitted to the electors; and
WHEREAS, The California Supreme Court, in Livermore v. Waite
(1894) 102 Cal. 113 and subsequent decisions, has held that a
revision is a substantial change to the "underlying principles" of
the California Constitution or to the structure of our "basic
governmental plan"; and
WHEREAS, Subdivision (a) of Section 8 of Article II of the
California Constitution defines the initiative power as the ability
to propose and pass statutory laws and constitutional amendments, but
not constitutional revisions; and
WHEREAS, Article III of the California Constitution establishes a
separation of powers between the legislative, executive, and judicial
branches of California's government; and
WHEREAS, Under the separation of powers doctrine established by
Article III of the California Constitution, the courts have the
ultimate authority to interpret and enforce the principle of equal
protection, particularly where government discrimination on a suspect
basis or the selective denial of a fundamental right on a suspect
basis is at issue; and
WHEREAS, The distinct procedures mandated for revision and
amendment of the California Constitution, and the crucial
deliberative role of the Legislature in any proposed revision of our
Constitution, constitute key structural checks in the system of
checks and balances mandated by Article III of the California
Constitution; and
WHEREAS, The distinction between revision and amendment, and the
distinct procedures assigned to each, in Article XVIII of the
California Constitution, as well as the separation of powers mandated
by Article III, are entitled to the highest respect as the
expression of the people's will; and
WHEREAS, The principle of equal protection, which prohibits
unequal government treatment of historically targeted minority groups
and ensures that laws enacted by a majority must apply equally to
all people, is a foundational principle underlying our Constitution
and our democratic system of government; and
WHEREAS, The requirement of equal protection of the laws plays an
essential structural role in our basic governmental plan by providing
a necessary check on the exercise of majority power and, in
particular, by prohibiting the enactment of measures that facially
single out a historically targeted minority group for adverse
treatment and selective exclusion from an important right; and
WHEREAS, The Legislature is specially suited to examine and debate
significant changes to the principles and structure that underlie
the California Constitution, and is structured for precisely such a
task; and
WHEREAS, Proposition 8, which was titled "Eliminates the right of
same-sex couples to marry," was put forward as an initiative measure
and enacted by the electors by a bare majority of the vote in the
November 4, 2008, general election; and
WHEREAS, Proposition 8 purports to amend the California
Constitution to eliminate a fundamental right only for a particular
minority group on the basis of a suspect classification, while
permitting the majority to retain that fundamental right; and
WHEREAS, Proposition 8 would severely undermine the foundational
principle of equal protection by establishing that any disfavored
minority can be targeted to have its fundamental rights stripped away
by a simple majority vote; and
WHEREAS, Proposition 8 would substantially alter our basic
governmental plan by eliminating equal protection as a structural
check on the exercise of majority power and by permitting majorities
to force groups defined by suspect classifications to fight to
protect their fundamental rights under the California Constitution at
every election; and
WHEREAS, Proposition 8 would violate the separation of powers
doctrine by stripping the courts of their core, constitutionally
mandated function and traditional authority to enforce equal
protection to prevent government discrimination against minority
groups and the selective denial of fundamental rights on suspect
bases; and
WHEREAS, Proposition 8 would also violate the separation of powers
doctrine by intruding on the vital role of the Legislature in
vetting revisions to the California Constitution and by sidestepping
the constitutionally required rigors of the legislative process; now,
therefore, be it
Resolved by the Senate of the State of California, That the Senate
opposes Proposition 8 because it is an improper revision, not an
amendment, of the California Constitution and was not enacted
according to the procedures required by Article XVIII of the
California Constitution; and be it further
Resolved, that the Secretary of the Senate transmit copies of this
resolution to the author for appropriate distribution