Gay Marriage in the Golden State

Looks like Gov. Arnold is going to have to decide whether he's for gay marriage or not, and soon:

The California Legislature yesterday became the first legislative body in the country to approve same-sex "marriage," as homosexual rights advocates overcame two earlier defeats in the Assembly.

The 41-35 vote sends the bill to Gov. Arnold Schwarzenegger, who had no comment on the bill when it cleared the Senate last week, in what was widely seen as a symbolic vote at the time because of lower house's earlier rejections.

His office did not immediately respond late last night to a call seeking comment.

Although Mr. Schwarzenegger generally favors homosexual rights and domestic partnerships, he said in a 2003 interview with radio talk-show host Sean Hannity: "I think … marriage is something that should be between a man and a woman."

Whole Washington Times coverage--replete with scare quotes around marriage (even in the story's headline)--here.

Will the famously tolerant Arnold get a pass if he vetoes the bill? A reverse Nixon Goes to China? If he signs the bill into law, will the Wash Times still use the scare quotes? Will gay marriage, once approved by voters somewhere, retreat into oblivion, sort of like the dread '70s debates over girls playing in Little League?

More on the Cali situation and links to relevant Reason pieces here.

Comments

[Jennifer]

I heard on NPR this morning that Schwarzenegger said this was a matter for the courts, not the legislatures, to decide. But then when courts rule in favor of gay marriage, it becomes a matter best left to the legislatures.

The moral: the gay marriage decisions must remain in the hands of those who oppose it.

[dpotts]

Marriage viewed in it's proper perspective is a matter of contract law, and should rightly remain an issue for the courts. If we are to truly have equality before the law, the court should not permit restriction to the entry into a contract between two consenting adults.

[Akira MacKenzie]

Dear Gov. Schwarzenegger:

Just a reminder: WE OWN YOU!

Sincerely,
The Republican National Committee,
A "holy" owned subsidary of the Christian Right

[dpotts]

I guess I just think that it's not necessarily a great thing for the legislature to vote on gay marriage, especially in a place like CA which is so beholden to the whims of the majority through passage of proposition x,y, or z.

[Mr. Nice Guy]

I really like Arnold the same way I admired Jesse Ventura. However, if he vetoes this bill, I'm done with him.

[thoreau]

The fate of gay marriage now rests in the hands of a guy who used to parade around in his underwear, showing off his toned muscles.

[Mike Kole]

Really, I don't want either the courts or the legislature deciding who can or cannot enter into agreements and contracts with one another, marriage and the conferrence of benefits being just one aspect of contractual relationships.

Better to get government out of the business of marriage licenses, and leave it to the churches. The marriage ceremony is a sacrament, separation of church & state and all. Those denominations that wish to marry gay couples will. Those that don't, won't.

Don't forget the sordid history of marriage licenses. The purpose originally was to block interracial marriage.

[thoreau]

Mike-

That's a nice sentiment, but in order to remove some or all restrictions on marriage, somebody will have to, you know, pass a bill or strike down a law or something.

[cdunlea]

Don't forget the sordid history of marriage licenses. The purpose originally was to block interracial marriage.

In this country, yes. Elsewhere it was to create a legal record for a host of still-relevant family, property and contractual issues.

[fyodor]

Someone more lawyerly than me set me straight. Isn't it up to the legislature to make contract law, and only up to the courts to interpret it? Doesn't the legislature get to define what is or isn't a valid contract? Or is contractual law mainly based on English Common Law and doesn't depend on legislation? Either way, thoreau's right, the legislature has to decide who if anyone gets to get these marriage license thingies.

[dpotts]

Don't forget the sordid history of marriage licenses. The purpose originally was to block interracial marriage.

But there are strong arguments for maintaining some sort of governmental licensing or oversight. It becomes especially important in the case of spousal abuse, if there is no license or contract to dissolve, it then becomes very difficult to legally prevent an abusive spouse from gaining access to their spouse or financial and medical records.

[fyodor]

(I should add that yes I'm aware that the courts can and do strike down legislative decisions when they deem them to be unconstitutional; this is considered interpreting constitutional law.)

[Nikos A. Leverenz]

I noticed how the Wash Times still uses "homosexual" instead of "gay" or "same-sex," where the use of "homosexual" is otherwise absent in other manifestation's of Steve Lawrence's AP story.

The typical California legislator views the initiative process in much the same way as they view the court system -- it is usually right, except when it's wrong. However, a politician is less likely to decry a democratic mob than a cadre of "judicial elites."

My somewhat lengthy "instant analysis" of the gay marriage saga may be found at http://www.tothepeople.com (see post titled "Gay Marriage Bill on Arnold's Desk"). I take particular issue with the lack of internal (and external) debate within the California Republican Party.

[Akira MacKenzie]

Better to get government out of the business of marriage licenses, and leave it to the churches. The marriage ceremony is a sacrament, separation of church & state and all. Those denominations that wish to marry gay couples will. Those that don't, won't.

In the immortal words of Jayne Cobb, "An' If wishes were horses, we'd all be eatin' steak." Like it or not, government has its filthy mitts all over marriage, so it has to be an issue that is either settled in the courts, the legislature, what have you. While they might not have all that much sway in CA or with Schwartzenegger, the religious right still runs the GOP in these matters and Ah-nold knows who holds the purse strings. He won't sign the bill if he thinks it will endanger his campaign coffers and would rather let the "liberal activist judges" take the heat if they approve same-sex unions.

[trotsky]

I'm looking forward to Arnold's signing the bill, thus alienating the final 31 percent of the electorate that supports him.

[Steve]

Trotsky has it right. The California Legislature is only doing this in an all out assault to get the majority of voters angrier with the gubernator.

Much as I disagree with the majority, over 60% of [voting] Californians voted NO on this issue.

Expect more gun control legislation as well.

Governor Scharzenegger,

Do the right thing to get your ballot measures past in November. Veto this bill and gun control legislation.

Steve

[Mike Kole]

Sure, I know that you can wish in one hand and all. The important thing here is to show the danger of majority rule as affects individual rights, and to offer suggestions for more sensible models. In particular, this is an opportunity for Libertarians to show the gay community the slippery slope of the common good and majority rule, and to begin bringing them to our side.

It floors me that Log Cabin Republicans can exist so long as there is a Libertarian Party.

[Captain Awesome]

Log Cabin Republicans are closet Libertarians.

[dead_elvis]

Will gay marriage, once approved by voters somewhere, retreat into oblivion,

Ich don't think so. It seems to have died down a bit since the election, but one state approving it is going to revive the whole "see, we need a constitutional amendment" crowd.

[mk]

Captain Awesome,

That was, um, awesome, funny and probably true.

[Dave W.]

Fyodor,
Good article in Wikipedia that sort of answers your question.

Excerpt:

"Under the principle of church-state separation, libertarians criticize the government regulation of and the state's involvement in marriage, because many now consider marriage a religious institution. The libertarian view is that if government must recognize marriage at all, it should be treated as a contract like any other between two freely consenting parties, which would essentially reduce family law to a subset of contract law. The religious aspects should remain the province of one's church and that church's ecclesiastical courts (if it has them). Relatively new legal developments like palimony have already tilted certain governments slightly in this direction."

[Seamus]

"I heard on NPR this morning that Schwarzenegger said this was a matter for the courts, not the legislatures, to decide. But then when courts rule in favor of gay marriage, it becomes a matter best left to the legislatures."

It's pretty clear that Arnold is no constitutional scholar, and that he just wishes he could duck responsibility in this matter.

"The libertarian view is that if government must recognize marriage at all, it should be treated as a contract like any other between two freely consenting parties, which would essentially reduce family law to a subset of contract law."

Well, that would certainly be an improvement over the current situation, where marriage is the one contract one can breach without making the other party whole.

[Daniel Montiel]

Arnold says he'll veto.

[James Anderson Merritt]

The whole gay marriage thing seems to be more about tapping into spousal benefits and tax breaks (if any), than it is about human rights and respect. The gay marriage movement seeks to force employers, governments, and other benefits-granting agencies to recognize and confer benefits upon same-sex spouses.

I am in complete sympathy with anyone who wants an easy way to designate legal "next-of-kin" status or delegate power of attorney to a same-sex partner. But the only tenable reason I have ever seen for granting tax breaks to married couples or benefits to spouses is to promote the stability of families that produce and/or raise children (future wage- and tax- slaves :-). If employers feel that granting benefits to same-sex couples will make the workforce happier and make gay workers more productive (at work!), then they will offer those benefits without any prodding by the law. Otherwise, why should they be forced to do so?

[DB]

It's pretty clear that Arnold is no constitutional scholar, and that he just wishes he could duck responsibility in this matter.

Maybe, but people who ARE constitutional scholars seem to think that the bill violates the California state Constitution.

A referendum established that gay marriage may not be legally recognized in California. The state constitution states that the legislature cannot override a referendum except via constitutional amendment. So when Arnie says this is "up to the courts to decide", he's right -- until the courts rule that Proposition 22 is unconstitutional, no law can be passed establishing gay marriage in California. The Democrats know this; they're just passing this law for the same reason Republicans pass school prayer and anti-flag-burning laws -- to rile up their base.