Truth in labeling

A gay old time in California

Voters in California can write new state laws or amend the state constitution by means of the initiative process. Each general election ballot typically offers several measures that were placed there by the signatures of registered voters on initiative petitions. The November 2008 ballot is no exception, featuring in particular Proposition 8, an attempt by the religious right to overturn the recent decision by the California Supreme Court to allow same-sex marriages.

The state attorney general has the job of providing a legal description for each proposed initiative. This official description must appear on the petitions that are circulated for signatures. It also appears on the ballot so that voters are reminded of the content of the measure as they make their decisions. Attorney General Jerry Brown has recently created a fuss by altering Proposition 8's legal description. Supporters of Proposition 8 are terribly upset and claim that Brown's action is politically motivated, since the attorney general is believed to be planning a return to the governor's office (which he previously occupied from 1975 to 1983).

While it was being circulated, the initiative bore the description “Limit on Marriage. Constitutional Amendment.” No one said anything to either praise or decry this description. Then the state Supreme Court issued its landmark ruling, establishing the right of same-sex couples to be married in California. Shortly thereafter, the California secretary of state's office announced that Proposition 8 had qualified for the ballot. Attorney General Brown issued a new description: “Eliminates Right of Same-Sex Couples to Marry.”

The hue and cry erupted immediately. McClatchy News columnist Dan Walters, grand old man of the Capitol news beat, called Brown's relabeling “a pretty cynical act” and claims that now any defeat of Proposition 8 at the ballot box “will carry an asterisk of illegitimacy,” since the attorney general is our “referee” and “shouldn't misuse the rules of the game to favor one side over the other.”

Frankly, I'm shocked that any politics should be involved in an election campaign, but I'll set that aside for the moment. The question is not simply whether Jerry Brown has political motives (he's a politician; of course he does), but whether his position is rationally defensible. And it is. After all, circumstances have changed. Before Proposition 8 qualified for the ballot (before it even had a number, in fact), same-sex couples had no right to marry in California. Now they do. Passage of Proposition 8 would now eliminate an existing right, a right reflected in hundreds (thousands?) of same-sex marriages performed since the Supreme Court ruling became effective in June.

Gareth Lacy, a spokesperson for the attorney general, provided Brown's perspective: “We carried out our statutory duty to accurately summarize the measure. In this case, we take into account an extremely important Supreme Court decision that affirms the right to same-sex marriage.”

Does the new description hurt Proposition 8's chances of passage? Almost certainly. Did Jerry Brown try to make the language as inflammatory as possible? If so, he didn't try very hard. I would have suggested “Promotes discrimination and cruelly invalidates existing marriages.” (Perhaps that's why I'm not attorney general. Not enough nuance. And no law degree, either.)

Proposition 8 would eliminate the right of same-sex couples to get married. That is its intention. That is its description.

Jerry Brown hit the nail on the head. The pain rippling through the ranks of the state's homophobes is merely a side benefit.