Cal. AG's Prop 8 language upheld

The struggle over marriage equality in California continues to be an interesting one. There were the 2004 San Francisco marriages, and the court decision nullifying them. There was the long-running Marriage Cases, that concluded with a state supreme court protecting same-sex couple's right to marry. And since then, there's been litigation seeking to stop that ruling from going into effect; litigation trying to keep Proposition 8 (which would overturn Marriage Cases) off the ballot; and now, litigation over the official language for Prop 8.

The state's official summary for Prop 8, at the time it was first circulated to get it on the ballot, said that it "Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." But last month, the AG published the official summary for the ballot states that Prop 8 "Changes the California Constitution to eliminate the right of same-sex couples to marry." Prop 8 supports sued, saying the summary was unfairly argumentative.

A superior court judge has now rejected that argument (PDF). The judge noted that state law creates a high standard for challenging prejudicial ballot language, and judges will normally defer to the Attorney General. The petitioners argued that the statements "(i) use a strongly negative, active tense verb to characterize the effect of the measure; and (ii) focus too narrowly on the measure's effect on same-sex couples." The court said pithily,

There is nothing inherently argumentative or prejudicial about transitive verbs, and the Court is not willing to fashion a rule that would require the Attorney General to engage in useless nominalization.

Nor is the Court persuaded that the Attorney General's title is argumentative because the term "eliminates" is "negative." It is noteworthy that the ballot title recommended by Petitioner in his moving papers – "Limit on Marriage" – also begins with a "negative" term. Petitioner has failed to explain why the term "eliminates" is inherently argumentative, while the term "limit" is not.

Next, the Court rejects Petitioner's argument that the title is argumentative because it states as fact that same-sex couples have a "right" to marry. This statement is not argumentative, prejudicial, or controversial, in light of the California Supreme Court's decision in the Marriage Cases, which recognized the right. This Court is bound to follow the Supreme Court's decision.

Finally, Petitioner argues that the title is argumentative because it is under-inclusive, focusing narrowly on one of the measure's "effects," rather than the measure's "purpose." However, this argument fails because the Attorney General is not required to distinguish between a measure's intended consequences (purpose) and its actual consequences (effects). Rather, the Attorney General's mandate is to state the chief "purpose and effect" of the measure.

On similar grounds, the court rejected arguments that the summary is misleading.

The court also rejected challenges to the sample arguments for the ballot. As to the opponents' argument's contentions about the affect on public school curricula, the court said:

There is at most a reasonable difference of opinion as to whether Proposition 8 will have any effect on what may or could be required teaching in schools. Further, under current California law, children cannot be required to attend any health-related instruction, including instruction on the subject of marriage, against their parents' will.

Petitioner's also said it was misleading to include the argument that marriage and domestic partnerships don't provide couples the same security. The court observed that this argument was essentially accepted by the supreme court in Marriage Cases.

This all seems pretty straightforward to me. Of course, the petitioners are right to be concerned that the new wording could bias voters against Prop 8; it seems obvious to me that the wording is a victory for Prop 8 opponents, because it focuses on the existing constitutional rights of same-sex couples. What seems critical to me is that the state law on ballot language does not prohibit language that might give some slight advantage to one side or another. Rather, it requires a high standard of blatant argument or inaccuracy, which is a far more workable standard. Since whether a particular framing of an issue favors one side or is simply more accurate is to some degree in the eye of the beholder, a high standard is needed to provide an administrable rule of law that won't mire judges in political disputes. The seemingly inevitable downside is that the AG will get mired in those disputes to some extent, and may give some slight (or at least perceived) advantage to one side.