Overlooked Legal Option Would Let Schwarzenegger Sign Gay Marriage Bill

[kweerwolf]

Last week, California Governor Arnold Schwarzenegger, through a spokesperson, asserted that "respect for the will of the people" compels him to veto the legislature's recently-enacted bill that attempts to recognize same-sex marriage for in-state residents.

The Governor's reference to "the people" is apparently to Proposition 22, an initiative passed by California voters in 2000 that placed into the statute books the following single sentence: "Only marriage between a man and a woman is valid or recognized in California." On account of this initiative statute, Schwarzenegger believes the legislature's measure is foreclosed. Although Schwarzenegger undoubtedly has the right to veto the bill, his claim that respect for the "will of the people" requires him to flatly reject the legislative proposal is, as we will explain, overstated.

For starters, more than five years have passed since Californians adopted Proposition 22. The reality is that we don't know what California voters think today -- what their current will really is. The voters have elected new state legislators since 2000, and the electorate of 2005 is itself different from the electorate of 2000 in many ways.

Particularly on the question of gay families, much has changed nationally and in the Golden State. In the past year, for example, California implemented one of the most extensive domestic partnership laws in the country. And recent polls show that although 61% of those who voted favored Proposition 22 in 2000, about half of the state electorate today is supportive of full-fledged gay marriage.

http://writ.news.findlaw.com/commentary/20050916_leib.html

[LeftCoast]

1. Interesting article. More people should read about this idea...

I doubt Arnold will backtrack on his plans to veto the bill at this point, but this would be a very interesting option. It probably would have let the Governator escape a lot of criticism he's now facing and kept his base reasonably happy at the same time.

:kick: and :recommend:

[AntiFascist]

2. What about a 4th option?

Not doing anything with the bill one way or another? The bill would then pass by default without the Governator having to take a stand.

It would seem clear to any lawyer that Proposition 22 only applies to out-of-state marriages with respect to its definition of marriage. The cited article provides an excellent argument as to why Proposition 22 may then be unconstitutional, Federally, in light of the people of California's changing opinion. Maybe, in this case, the question SHOULD BE left up to the courts?

It should also be clearly explained why the voters opinions are changing over time: polls show a big difference in opinion between older voters and younger voters. Over time, as older voters die off and younger voters become more politically active and reach the age to vote, it only makes sense that the "tide is turning" on this issue. Schwarzenegger should not fight this tide if he wants any hope of keeping his political career afloat.