Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

September 7, 2005
By: Kevin Drum

GAY MARRIAGE IN CALIFORNIA....A couple of hours ago, the California Assembly passed AB 849, the nation's first same-sex marriage law not prompted by a court order. We may have our problems, but this is one reason I love living here. Assemblyman Dennis Mountjoy (R-Paleolithic) provided the opposing argument:

It's not about civil rights or personal rights, it's about acceptance. They want to be accepted as normal. They are not normal.

Well, apparently they are, at least in California. Mountjoy, of course, is free to move elsewhere if he disagrees.

The bill now moves to the governor's office, where Arnold will have to decide whether to sign it or not. Will he stick with his peculiar suggestion that the legislature is the wrong place to decide questions like this and we should leave it up to the courts? Or will he make up some other excuse for vetoing it even though he almost certainly has no personal objection to gay marriage? At the very least, his squirming should be entertaining. Stay tuned.

BONUS LEGAL ADDENDUM: What's the legal deal with this measure? Does it violate the California constitution? That's a good question. As near as I can tell, here's the skinny.

In 2000, California passed Proposition 22, which stated that "Only marriage between a man and a woman is valid or recognized in California." That seems pretty clear, but it turns out that things are murkier than they seem.

First, at the time it passed, California already defined marriage as a civil contract between a man and a woman. The point of Prop 22, then, wasn't to define marriage in California, it was to make sure that California didn't recognize same-sex marriages performed in other states. The ballot argument made this point, and so did the attorney general, who renamed the initiative from "Definition of Marriage" to "Limit on Marriages," a change that was upheld by a state court. Needless to say, though, this interpretation of Prop 22's text remains controversial.

Second, Prop 22 was passed as a statutory initiative, not a constitutional initiative. This means that it might be found to violate the state constitution's equal protection and privacy clauses, something that would obviously be impossible if it were itself a constitutional amendment. (The state Supreme Court had a chance to rule on this a couple of months ago in a case related to California's domestic partnership law, but it punted and ruled on different grounds.)

Bottom line: if Arnold signs AB 849, it will be up to the courts to decide if the legislation is constitutional, and it's anyone's guess how they'll rule. However, there's also a possibility that gay marriage opponents will place another initiative measure on the 2006 ballot regardless of what Arnold or the courts do and this time they'll be more careful about how they word it. Prop 22 passed with over 60% of the vote in 2000, but there's no telling how a more blatantly anti-gay-marriage measure would fare today.

UPDATE: Actually, it turns out there are three separate anti-gay-marriage initiatives already circulating. There's one to eliminate domestic partnerships, one to eliminate domestic partnership rights, and one that specifically makes same-sex marriage unconstitutional. The homophobes are definitely trying to cover every possible contingency.

Kevin Drum 12:53 AM Permalink | Trackbacks

Bookmark and Share
 
Comments




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly