McFreedom

Well, it looks as though it's not quite as cut and dried as I'd thought on the legality of the legislature passing a law that conflicts with Prop 22. Prof. Volokh notes that the California constitution provides that "The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." Which would seem to pretty clearly indicate that the legislature can't simply pass a new law.

In this case, though, things are a little more complicated than that. Prop 22 created Section 308.5, which says, in its entirety, "Only marriage between a man and a woman is valid or recognized in California." Which would seem to be pretty clear. Except California Family Code is in heirachical sections. The whole marriage section is pretty approachable, but we'll concentrate here on the parts that are germane:

CALIFORNIA FAMILY CODE 300. Marriage is a personal relation arising out of a civil contract between a man and a woman, 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).

301. An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.

It then continues in that vein for quite a while, discussing things like ages of consent, how people too young to marry can marry anyway with the correct permissions, and a bunch of details of licenses. It then reaches section 308:

308. A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state. 308.5 Only marriage between a man and a woman is valid or recognized in California.

It seems pretty clear to me that section 300 defines who may get married in California while sections 308 and 308.5 defines which out-of-state marriages are recognized in California. The legislature just voted to change section 300 (which was not touched by Proposition 22) and to leave alone section 308.5 Unfortunately, this does result in the somewhat nonsensical distinction that gays may marry in California and have their marriages recognized here, but not marry in another state, move here and have their marriages recognized (presumably they'd have to remarry here).

While it is a rare occurrence for me to disagree with Prof. Volokh - especially on legal matters, since he knows so much more than I do - it doesn't seem to me that the legislature did anything at all improper in changing section 300 to change "a civil contract between a man and a woman" into "a civil contract between two persons."

All of this, I suppose, is moot, since the Governor appears to agree with the Professor and is going to veto it. I don't for a moment believe his Constitutional justification - that's a much too abstract basis for his action given his personality. If he thought it was politically expedient, I have no doubt he'd happily sign any bill that was guaranteed to be overturned by the courts. But I'm quite dismayed he didn't use this opportunity to reach out the opposition and cement his popular appeal. To say nothing of his failure to do what's right.