Louisianan's ballot measure overturned!

[Left Hand of Dorkness]

Them crazy activists judges are at it again.

A state judge Tuesday threw out a Louisiana constitutional amendment banning gay marriage, less than three weeks after it was overwhelmingly approved by the voters.

District Judge William Morvant said the amendment was flawed as drawn up by the Legislature because it had more than one purpose: banning not only gay marriage but also civil unions.

Can anyone talk about the meaning of this? Is this really just a procedural issue--that is, if the measure had been divided in half, would both halves have been copacetic? Or is the problem specifically with the banning civil unions part?

I'm happy at the result, but not clear on why it happened.

And hopefully this won't get buried under the veep debate.
Daniel

[John Mace]

This will almost certainly go to the state Supreme Court. But if it gets overturned at that level, it'll get spun back out as either 2 seperate initiatives, or one that deals exclusively with SSM. And the SSM part will pass again, probably by an even bigger margin since some of the voters might have objected to the anti civil union aspect. In most states, SSM just isn't an issue that is going to fly. Not for a long while yet.

[Julius Henry]

I am not a lawyer, definitely not a constitutional scholar, but I can search the Internet a little and found the Louisiana State Constitution of 1974. Here is the relevant paragraph, with the important phrase bolded (by me, of course):

ARTICLE XIII. CONSTITUTIONAL REVISION

§1. Amendments

(B) Form of Proposal. A proposed amendment shall have a title containing a brief summary of the changes proposed; shall be confined to one object; and shall set forth the entire article, or the sections or other subdivisions thereof, as proposed to be revised or only the article, sections, or other subdivisions proposed to be added. However, the legislature may propose, as one amendment, a revision of an entire article of this constitution which may contain multiple objects or changes. A section or other subdivision may be repealed by reference. When more than one amendment is submitted at the same election, each shall be submitted so as to enable the electors to vote on them separately.

Obviously, this comes down to whether or not the amendment as passed was confined to one object or not. It seems to me the problem is procedural, but this topic is rarely covered on Law & Order, so you shouldn't go by my opinion.

Mmmm. I should get in touch with Dick Wolf. Law & Order: Constitutional Crises could be a pretty good series.

[John Mace]

Dorkness: You might get some more comments from real lawyers if you ask the mods to change your title to specifically ask for their input. I will expect that Bricker will be along shortly since he started a thread on this topic not long ago.

[JRDelirious]

Originally Posted by John Mace

This will almost certainly go to the state Supreme Court. But if it gets overturned at that level, it'll get spun back out as either 2 seperate initiatives, or one that deals exclusively with SSM. And the SSM part will pass again, probably by an even bigger margin since some of the voters might have objected to the anti civil union aspect. In most states, SSM just isn't an issue that is going to fly. Not for a long while yet.

Right.

However let's remember that a lot of the anti-SSM legislation, including the blessedly failed Federal Marriage Amendment, explicitly incorporates into the restriction any form of contract that grants "the legal effects of marriage". This, because the anti-SSM bunch views civil union as a foot-in-the-door move. If this establishes in any way a trend towards forcing a separation of the issue, it could get interesting.

This will have, at best, the effect of the Court having said: "Hold it... take a deep breath, are you sure you know what it means to do what you just said you want to do?"

[Polycarp]

Note the text of the Louisiana State Constitution which Julius Henry courteously and helpfully quoted.

A state Constitutional amendment, duly and properly enacted and ratified, trumps any state statute and governs any court decision. But to get to that point, it must comply with the provisions for amending the state constitution. And in the opinion of the court, this one did not.

To erect some parallels, contemplate these two hypothetical legal documents:

1. Proposed Amendment to Louisiana State Constitution

The constitution of the State of Louisiana shall be amended as follows:

Section One. Whenever the Governor shall declare a State of Disaster for all or part of the State of Louisiana, and the Legislature shall determine by simple majority vote that such state of disaster is sufficiently widespread as to require extensive reconstruction and rehabilitation work, the limitation on maximum state indebtedness called for by [cite of provision here] shall be superseded for a period to be specified by statute and not to exceed ten years to the extent that the legislature shall be entitled to authorize a special bond issue for the explicit purposes of rebuilding after natural disaster or aiding victims of such natural disaster to rebuild by loans and/or grants in aid from the state.

Section Two. No marriage or other legally recognized arrangement giving the right and privileges of marriage shall exist between two persons of the same sex within the state of Louisiana.

2. Proposed Article of Amendment to the Constitution of the United States of America

Section One. No marriage or other legally recognized arrangement giving the right and privileges of marriage shall exist between two persons of the same sex within the United States of America, or any state thereof.

Section Two. This amendment shall take effect upon passage by simple majority in the Senate and House of Representatives and by ratification by a majority plus one of the states.

There are innate flaws in both these hypothetical amendments: the first is a blatant violation of the single subject provision of the State Constitution; the second enables itself to be passed by a means contrary to the existing provisions for amending the Constitution.

This is a case where procedural due process comes into effect: neither law, no matter how well liked they may be, can be duly passed because both violate the consensually agreed and constitutionally defined means whereby amendments to a given constitution may be adopted.

Split #1 into two pieces, and it could be adopted. Drop Section Two from #2 and substitute the usual seven-year clause, and it could be adopted. (Whether it should be is a different debate.) But as it stands, neither can be validly adopted because both violate the existing procedural rules for enacting amendments.

I think someone familiar with the text of the proposed Louisiana amendment and with Louisiana law (which has a few quirks compared to the rest of the U.S., thanks to its partial ancestry in French civil law) would have to examine the situation and explain how the voted-down amendment violates the single subject provision of the Louisiana constitution. But presuming that the judge is not completely out to lunch, it's as much a violation as is my example #1.

[Bricker]

An update:

The Louisiana Supreme Court ruled on January 19 that the enactment of the Marriage Amendment approved overwhelmingly by the voters on September 18, 2004, does not violate Louisiana’s constitution, so the amendment will go into effect.

Link.