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Monday, November 17, 2008

Under California Constitution, Proposition 8 Should Stand

SACRAMENTO, California, November 17 /Standard Newswire/ -- With their vote under attack by liberal county governments, homosexual activists and the ACLU, many Californians are wondering whether they've lost the right to amend the constitution. The answer is no, according to the constitution itself and the legislative and legal history regarding the difference between an "amendment" and a "revision."

"An amendment is when the voters make changes to one or more of the provisions of the constitution," said Randy Thomasson, president of Campaign for Children and Families, a leading California pro-family organization. "In contrast, a revision is when the legislature and the voters both agree to make numerous, sophisticated changes to the entire constitution. If the constitution were a house, a revision would be an extensive remodel where you knock down all the inside walls and repaint everything; an amendment would be a minor change, like replacing a lamp or a chair in the family room."

Proposition 8, approved by the voters, added Article 1, Section 7.5 to the California Constitution, reading, "Only marriage between a man and a woman is valid or recognized in California."

The City of San Francisco alleges Prop. 8 was a constitutional revision requiring two-thirds legislative approval. Yet in July, the California Supreme Court refused to hear these same arguments when the City of San Francisco urged the court to strip Prop. 8 from the ballot. "This summer, the Supreme Court unanimously refused to hear the claim that Proposition 8 was a revision," said Thomasson, who is seeking to intervene in the Prop. 8 lawsuits on behalf of the voters. "The Court disagreed that Prop. 8 is 'a substantial alteration of the entire constitution.'"

"The Supreme Court knows the difference between a single-subject, voter-initiated amendment and a multi-issue, legislature-initiated, whole-scale revision that alters many sections of the state constitution," said Thomasson. "The first clue is revisions always require a two-thirds legislative vote, but voter-initiated amendments such as Prop. 8 are directly added to the constitution by the people. Thank God that the state constitution tells us 'all political power is inherent in the people,' that 'they have the right to alter or reform it when the public good may require'" (California Constitution, Article II, Section 1).

In 1978, the California Supreme Court distinguished between a revision of the constitution and a mere amendment of the constitution, stating that a revision referred to a "substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions" (Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208).

The California Supreme Court last ruled on this issue in 1991, rejecting similar arguments that the City of San Francisco is using now. The Court ruled that Prop. 140 was not a revision:

"As previously noted, petitioners contend that the combined effects of the foregoing term and budgetary limitations on California's 'basic governmental plan' will be as devastating and far reaching as those involved in the provision of Proposition 115 invalidated by us in Raven v. Deukmejian, supra, 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077. They thus assert that Proposition 140 has achieved a qualitative revision of the Constitution. We disagree.

"Raven invalidated a portion of Proposition 115 because it deprived the state judiciary of its foundational power to decide cases by independently interpreting provisions of the state Constitution, and delegated that power to the United States Supreme Court. (Ibid.) By contrast, Proposition 140 on its face does not affect either the structure or the foundational powers of the Legislature, which remains free to enact whatever laws it deems appropriate. The challenged measure alters neither the content of those laws nor the process by which they are adopted. No legislative power is diminished or delegated to other persons or agencies." (Legislature v. Eu 54 Cal.3d 492)

The California Constitution itself states that the people may amend the Constitution by the initiative process, where they collect signatures, qualify an amendment to the Constitution, and pass it. No legislative "permission" is required for voter-initiated amendments such as Proposition 8. "The electors may amend the Constitution by initiative" (Article 18, Sec. 3).

Explaining the clear distinction between an amendment and a revision is University of California, Berkeley Department of Public Science Chairman Emeritus Dr. Eugene C. Lee, who, in 1991, wrote:
"Specific changes to the California constitution may be proposed by amendment. Substantial changes may be proposed by a constitutional convention or by the legislature as constitutional revisions. Regardless of their origin, all changes must be approved by a majority of the electorate voting on the issue. Legislative amendments, the method most commonly used, require a two-thirds vote in each house of the legislature. Initiative amendments may be placed on the ballot by a petition of registered voters equal in number to 8 percent of the total vote cast in the preceding gubernatorial election. By explicit language in the constitution concerning initiatives and by court interpretation with respect to measures arising in the legislature, amendments are required to be limited in scope. As far back as 1894, the California Supreme Court distinguished between a revision of the constitution and a mere amendment thereof (Livermore v. Waite, 102 Cal. 113). As reiterated in 1978, the court held that a revision referred to a 'substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions' (Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208)." -- Eugene C. Lee, "The Revision of California's Constitution," April 1991, commissioned by the California Policy Seminar, UC Berkeley

CAMPAIGN FOR CHILDREN AND FAMILIES (CCF) is a leading West Coast nonprofit, nonpartisan organization representing children and families. CCF stands for marriage and family, parental rights, the sanctity of human life, religious


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