A challenge to the Defense of Bigotry Initiative has been lodged. I think it should be rejected, for some of the same reasons that Eugene Volokh suggests.

A “revision” to the Constitution is something that changes the basic structure of the government — requiring tax bills to originate in the Assembly instead of either in the Assembly or the Senate, for instance; or splitting the functions of the Supreme Court into multiple bodies (like the way Texas does it with one Supreme Court for criminal appeals and another Supreme Court for everything else, something I kind of like). It cannot be done only through the initiative process; it requires, instead, a series of constitutional conventions held in the various counties, reporting the results of their deliberations to the Legislature, followed by confirmation of the revision by initiative.

So the question is whether adding this clause: “Only marriage between a man and a woman is valid or recognized in California” is a “revision” because it effectively takes away the power of the Supreme Court to interpret that state’s Equal Protection Clause, or in the alternative, whether such a language “revises” the scope of that clause, such that it would require the more elaborate, expensive, and politically challenging process of constitutional conventions to be put on the ballot in the first place.

I just don’t see it. We can create entire new executive offices, including new Constitutional officials, by initiative — for instance, the California Department of Insurance, headed by an independently-elected Constitutional officer, the Insurance Commissioner, was created by initiative. We created the lottery by initiative, modifying the prior Constitutional prohibition against lotteries to permit the state to run one. Although I disapprove of and will vote against the Defense of Bigotry Initiative, its proponents seem to have gathered enough signatures to qualify it for the ballot, and it therefore has earned the right to an up- or down-vote by the people in November.

Whichever side loses the vote will have to live with the results, because that’s how democracy works. With that said, I urge my fellow Californians to vote “no.” How would you like it if the voters came along and rendered your marriage void, especially if they did it because they were prejudiced against you for religious reasons? Just consider that before you fill in or punch the circle for “yes.”

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I’m against same sex marriages but not for relious reasons. I’m not sure why I’m against it, so I’ll have to ‘search my soul’ (a little joke there)to figure it out.Part of it I think is that I don’t feel same sex relationships are necessarily long term. I don’t know how true this is though (backed by statistics). I think one issue also is that it would allow more people to get into insurance progroams via their spouses. Insurance can be considered in one perspective as socialism. Why can’t I as a healthy individual get insurance on my own but someone who is a same sex mate, get it? I’m not sure how to resolve the quandry.It’s a little like riding a motorcycle w/o a helmet. It’s risky behaviour. IS same sex marriage risky behaviour? Could be that’s where some of my prejudice is too.I admit I’m prejudiced on this subject, but also, I am tolerant. I am not in a position to judge nor do I wish to be. I’m just throwing this out there to discuss and hear a point of view that may enlighten me.

  2. Some of resistance to the idea of SSM may come from not knowing many people in same-sex relationship. (You probably do know some gay people, although some of them may not be “out”.) I would speculate a little further that in a very conservative or heavily-churched social environment, gays may feel a lot of pressure to stay closeted. So it would take a high degree of trust for someone to not only come out to you but also participate in a social event where his or her mate would come along. Both The Wife and I have been fortunate enough to have openly gay friends and we’ve both found that gay couples are not so different from straight couples — they have have history together, communicate with looks, tease one another, probably have disagreements about money, things they like to do together and things they like to do with their other friends, and so on. No gay person I’ve ever known has ever eaten a baby in front of me, engaged in outrageous and lascivious behavior in public, or tried to “recruit” me. I’ve only ever been hit on once, and the guy stopped when I told him I was straight. I took it as kind of a compliment. A gay friend once told me that I’d make a good gay guy “except for that whole liking girls thing”, which I found endlessly funny.

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