NEWS FLASH: Battle of Prospective v. Retroactive Application of Proposition 8 Raised in Latest Legal Challenges To Changes In Initative
Two separate actions have been filed in the in the never-ending drama of Proposition 8 Marriage-Go Round.
The first, Jansen v. Bowen No. 34-2008-00017351 the petitioners seek to have the current title that only eliminates the right of same gender couples to marry, which appears to be prospective in scope, with the original wording, which implies that the amendment is retroactive in scope (which I constitutionally doubt. See my other entries on the issue of the potential unconstitutionality of a retroactive amendment along with my most recent OPED piece in the Met-News and my recent article in OpEdNews.com).
In the second, Jenkins v. Bowen, No. 34-2008-00017366, the petitioners seek to strike the language of the proponents’ argument in favor of the amendment and the rebuttal to the opposition because the language incorrectly states California law. MORE IMPORTANTLY, IT REAISES THE ISSUE OF THE PROSPECTIVE VERSUS RETROACTIVE EFFECT OF THE INITIATIVE AS TO THOSE WHO ARE CURRENTLY MARRIED. (See my other entries on the incorrect analysis of the law regarding the forced teaching of same gender marriage in kindergarten (false) along with my most recent OPED piece in the Met-News).
I surmise that the original In re Marriage Cases (2008) 43 Cal.4th 757. 799, inadvertently triggered this pre-election review. In the Marriage case, the Supreme Court, stated, in addressing Proposition 22, which banned same gender marriages by an initiative statute, “Nothing in the ballot materials or other background of the initiative indicates that its proponents intended to limit its scope. . .” “Indeed, in view of the thrust of the measure as explained in the ballot arguments supporting the proposed initiative and rebutting the argument against it, it would be unreasonable to conclude that the measure was intended (and should be interpreted) to leave the Legislature free to revise California law to authorize the marriage of same-sex couples.” My conclusion, drawn from Supreme Court precedent, is that the Court will look to the victor’s ballot statements in order to determine the legislative intent. Consequently, I am not surprised by the vigorous challenges to the ballot statements at this time. The Supreme Court has opened the door to this new preemptive strike that may potentially be used in the future for other initiative challenges. I guess one could say that the Court, in this staggering economy, inadvertently gave birth to a “Pre-election Ballot Challenge Industry.”
The oppositions are due by August 4, 2008 at 12 NOON.
The hearings will be held in Department(s) 29 and 31 of the Sacramento Superior Court on August 7, 2008 at 1:30 PM (pending the cases being deemed related).