Current Prop. 8 Description to Stay

Proposition 8 supporters got a setback on Friday when a Sacramento judge ruled that the proposed constitutional amendment will appear on the November ballot in words that could level the playing field in favor of gays. And it all turned on a word.

At issue was the legal language known as Title and Summary -- the headline and short explanation prepared by the state attorney general and printed on the ballot. As submitted by California attorney general Jerry Brown, the title of Prop. 8 is "Eliminates the Right of Same-Sex Couples to Marry." Now it will stay that way, and in turn it will provide the best test yet of whether voters are really willing to see LGBT citizens deprived of their rights.

In a petition filed on July 29, Prop. 8 proponent Mark A. Larsson protested that Brown’s description is “extremely argumentative” and could prejudice voters against the measure. The remedy: Brown should be compelled to restore the same language that garnered 1.2 million signatures to put the original 2007 petition on the ballot, starting with "Limit on Marriage. Constitutional Amendment."

But thanks to the California supreme court’s ruling in favor of same-sex marriage, that ship has sailed, as superior court judge Timothy M. Frawley affirmed in rejecting Larsson’s suit.

Shannon Minter of the National Center for Lesbian Rights, who was present in the Sacramento courtroom, said that to keep the "Limit on Marriage" title would have been “extremely misleading” in the wake of the landmark decision. “The prior Title and Summary said the measure would have no effect on existing law and have no fiscal impact. And both of those things are untrue.”

Since the right to same-sex marriage now exists in law and has already been exercised by thousands of same-sex couples, the court reasoned, Prop. 8 would not simply limit marriage -- it would in fact eliminate an existing legal right.

Now, if they vote for the measure, voters will fully understand that they are voting to take away rights from their fellow citizens. This could in turn force proponents of Prop. 8 and other such initiatives out of their preferred guise as defenders of tradition and recast them as bigots.

Far from standing on significant legal grounds, Larsson’s challenge actually rested largely on Brown’s grammar, saying that the attorney general showed prejudice by “selecting a ballot title that begins with a negative, transitive active verb.”

This led to a series of rebuttals that lifted the court documents to the level of entertainment. “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,” wrote Frawley in his decision.

Spokesman Gareth Lacy declined to comment on how the attorney general actually arrived at the Title and Summary language, citing office policy not to elaborate on Brown’s defense as set forth in the court documents. “We defended the Title and Summary strongly, and the court agreed,” said Lacy.

But are Prop. 8’s proponents getting a fair shake? Even if eliminates were a loaded word, is the attorney general required to choose something more neutral? No, wrote Judge Frawley, saying that “as a general rule, the title and summary prepared by the Attorney General are presumed accurate” and that legal standards “require substantial deference to the Attorney General's actions.”

While Brown has been guarded in discussing issues surrounding Prop. 8, few would take him for a friend of the measure. He has already predicted that if passed, Prop. 8 would not retroactively invalidate marriages performed since June 17 -- a worry for many same-sex couples.

But Brown’s most dramatic role could be yet to come.

“If Prop. 8 passed, which it won’t,” said Minter, “we very likely would challenge it. And in that case, the attorney general ordinarily would defend the measure -- although the attorney general always does have the option of agreeing that a measure is invalid. It hasn’t happened very often, but it has happened at least a couple of times before.” (Anne Stockwell, The Advocate)