Issue:  Vol. 44 / No. 40 / 2 October 2014
 
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Breaking news: Prop 8 ballot title, summary to remain

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s.hemmelgarn@ebar.com

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A Sacramento Superior Court judge Friday denied a petition to have Proposition 8's ballot title and summary changed from "eliminates right of same-sex couples to marry."

Prop 8 proponents had argued that the title and summary prepared by Attorney General Jerry Brown "differs radically from the circulating title and summary, swapping 'Limit on marriage'" for the current language, "so as to be extremely argumentative and create prejudice against the measure."

However, in his tentative ruling, Judge Timothy M. Frawley said, "The title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California. The California Supreme Court unequivocally held [in a May 15 decision] that same-sex couples have a constitutional right to marry under the California Constitution."

"It is undisputed that if Proposition 8 is approved, marriage would be limited to individuals of the opposite sex, and individuals of the same sex would no longer have the right to marry in California," the ruling said.

The Prop 8 campaign and ProtectMarriage.com, a group backing the measure, will seek an appeal today, according to a statement.

“The language in the ballot title and summary for Proposition 8 is argumentative and seeks to negatively affect voters,” said Andrew Pugno, legal counsel for Prop 8, in the statement. “Since the superior court would not exercise its authority to protect voters against misleading language, we will ask the appellate court to do so.”

Backers of Prop 8 had filed the lawsuit over the title and summary July 29.

Geoff Kors, executive director of Equality California, a group that's part of the No on 8 – Equality for All coalition leading efforts to defeat Prop 8, said, "We're pleased that the judge upheld the title and summary, which describes the key thing this would do ... change the constitution to eliminate the right of same-couples to marry. The proponents don't want voters to know that."

Frawley also ordered softening language in other parts of the ballot measure that had been the subject of a lawsuit by Prop 8 opponents, also filed July 29.

Brown issued a statement in response to the ruling that said, "This lawsuit was more about politics than the law. The court properly dismissed it."

As proposed, language in the proposed argument in favor of Prop 8 said, "In health education classes, state law requires teachers to instruct children as young as kindergarteners about marriage ... If the gay marriage ruling is not overturned, teachers will be required to teach young children there is no difference between gay marriage and traditional marriage.

"We should not accept a court decision that results in public schools teaching our kids that gay marriage is okay," the argument states.

Frawley ruled that that passage should be changed to "State law may require teachers to instruct children as young as kindergarteners about marriage ... If the gay marriage ruling is not overturned, teachers could be required to teach young children there is no difference between gay marriage and traditional marriage.

"We should not accept a court decision that may results in public schools teaching our kids that gay marriage is okay."

In his ruling, Frawley said, "As petitioners have established, current state law does not require school districts to teach anything about marriage or same-sex marriage at any grade level. Moreover, for those school districts that choose to include instruction about marriage as part of a health education curriculum, Education Code [section] 51240 requires that they allow parents to excuse their children from any such instruction conflicting with the parents' religious or moral convictions."

Frawley also ruled that Prop 8 supporters' argument that the measure doesn't take away "any rights" from same-sex couples is false and misleading.

"The California Supreme Court held that same-sex couples have a constitutional right to marry under the California Constitution ... Proposition 8 would take away that right," he wrote.

However, he said in his ruling, "Because Proposition 8 would not take away any of the substantive rights or benefits afforded under existing domestic partnership legislation, the argument simply needs to be amended to provide that Proposition 8 doesn't take away any rights or benefits from gay or lesbian domestic 'partnerships' (rather than 'partners')."

Frawley also chimed in on the measure's potential effect on couples who have already married.

The judge ruled that the statement that same-sex marriages will be invalid "regardless of when or where performed" if Prop 8 passes is not "conclusively and objectively false or misleading."

"Even if this court is inclined to agree that the 'better view' is that the initiative, if passed, will not be given retroactive effect, it is not the role of this court to decide that issue in the context of an emergency election writ heard on shortened notice ... Because the question of retroactivity is unclear and subject to dispute, the statement is not "conclusively and objectively" untrue," Frawley stated in his ruling.

Brown has indicated he thinks that same-sex couples who have married since June 16 would not be affected by the passage of Prop 8.






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