California Legislature Violating Calif. Constitution?
On Tuesday the California legislature voted to to allow gay and lesbian couples to marry, making the state’s legislature the first in the nation to deliberately approve same-sex marriages. However California Family Code sec. 308.5, enacted by the voters as Prop. 22 in 2000, provides:
Only marriage between a man and a woman is valid or recognized in California.
This is an initiative statute, not a constitutional amendment, and therefore may be challenged as violating the state constitution. (In fact, it is before the state courts now.) But in order to be overturned the initiative must be proven to be unconstitutional or repealed by a vote of the people, not just a vote of the legislature. California Constitution article II, section 10(c) provides:
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.
Prop. 22 did not permit such an amendment.
