Monday, September 12, 2005

Governor Girly Man

In an historic first, the legislature of California recently passed a bill legalizing same-sex marriage. Sadly, Governor Schwarzenegger sided with the bigots and vetoed the bill. The governor claimed he did this because the law was unconstitutional. How can that be, you ask?

It turns out that California grants primacy to statutes passed via voter initiative. Contrary statutes passed by the legislature must be put to a new popular vote before they can become effective. In 2000, Proposition 22 won a sizeable majority (about 61 %) by offering the following language to California voters:
Only marriage between a man and a woman
is valid or recognized in California.

This would be fairly straight-forward but for the historical context. First, California already prohibited gay marriage under section 300 of the Family Code:
Marriage is a personal relation arising out of a
civil contract between a man and a woman...
This blunt denial of gay equality was added to California law only in 1977. Prior to that time, the California marriage law was gender neutral. Nevertheless, Section 300 already prohibited gay marriage in California. So why was Prop 22 needed?

In the years just before passage of Prop 22, it looked as if Hawaii would legalize gay marriage. And that just wouldn't do, now would it? If Hawaii, or some other state recognized gay marriage rights, it was feared that California would be required to recognize them, as well. Section 308 of the California Family Code declares:
A marriage contracted outside this state that would be
valid by the laws of the jurisdiction in which the
marriage was contracted is valid in this state.
Thus, Prop 22 was offered to the voters as an amendment to the existing section 308 (Prop 22 created a new section: 308.5) that would explicitly plug the gap in the state's defenses against the intolerable threat of gay marriage. Its intent was to block recognition of "foreign" gay marriages. And that was all that was needed since California law already limited marriage to one man and one woman.

So when the Governor claimed he had to veto the legislature's gay marriage bill, he was relying on a single possible interpretation of the state's laws -- one that conveniently matched his desire to run for office again as a Republican. He could have just as easily accepted the legislature's own declaration that the new gay marriage bill did not amend Section 308.5 (that is, Prop 22's denial of recognition to gay marriages in other states). Home-grown gay marriages would thereafter be legal in California even if foreign ones would not. He could have simultaneously announced that he was leaving it up to the courts to figure all of this out -- an appropriate gesture given the legislature's explicit statement.

Nevertheless, we have moved forward. The increasingly desparate anti-gay marriage industry can no longer claim that no American legislature has ever voluntarily passed a law allowing true gay marriage. It's been done. One of these days, the largely indifferent majority will tire of the scare tactics of the religious right and its allies. And history will record who was on the side of the bigots.