An appellate lawyer has filed a brief before the Ninth Circuit in San Francisco that argues same-sex-marriage banning Prop 8 should be struck down because all ballot propositions are illegal.
As Arthur Kirkland (Al Pacino) put it in ... And Justice for All, "You're out of order! You're out of order! The whole trial is out of order! They're out of order!"
The rationale of Jon Eisenberg, a partner at Eisenberg & Hancock in Oakland, is that the whole ballot initiative process was improperly voted into law in 1911, reports the National Law Journal.
That year, both houses of the California Legislature and the people voted for "Senate Amendment 22.″ But, according to Eisenberg, the process should have been put into law as a "revision" rather than an "amendment" to the state constitution.
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A revision would have required a super-majority of both the Assembly and state Senate as well as a constitutional convention.
Eisenberg's brief argues the gaffe has had significant ramifications, with the initiative process having morphed California "from a republican form of government into a direct democracy, which the Chief Justice of California describes as 'dysfunctional.'"
Exhibit A: Prop 8.
"A simple majority of voters," Eisenberg's brief notes, "overturned the California Supreme Court's earlier decision that the California Constitution protected gay men and lesbians with respect to the right to marry."