Governor's reply about marriage bill

Some weeks ago, I sent a message to Governor Schwarzenegger through his official web site, urging him to sign AB 849, the gender-neutral marriage bill. The governor decided in the end to veto the bill, and finally last week got around to sending me a boilerplate reply:

Thank you for emailing to express your position regarding Assembly Bill 849 (Leno). I understand the importance of this piece of legislation and the outcome it would have on our State and nation as a whole. After extensive consideration and thorough deliberation from proponents and opponents of this issue, I have decided to veto this bill.

I am proud California is a leader in recognizing and respecting domestic partnerships and the equal rights of domestic partners. I believe that lesbian and gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationships. I support current domestic partnership rights and will continue to vigorously defend and enforce these rights and as such will not support a rollback of these rights.

California Family Code Section 308.5 was enacted by an initiative statute passed by the voters as Proposition 22 in 2000. Article II, section 10 of the California Constitution prohibits the Legislature from amending this initiative statute without a vote of the people. This bill does not provide for such a vote and I do not believe the Legislature can reverse an initiative approved by the people of California.

The ultimate issue regarding the constitutionality of section 308.5 and its prohibition of same-sex marriage is currently before the Court of Appeal in San Francisco and will likely be decided by the Supreme Court. If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective.

While I was not able to sign this bill in particular, I did sign legislation to extend the rights of domestic partners. Last legislative session I signed SB 1234 (Kuehl), the most comprehensive extension of domestic partner rights. This sessions I signed AB 1400 (Laird), which clarifies that marital status and sexual orientation are among the characteristics that are protected against discrimination by business establishments under the Unruh Civil Rights Act. I also signed AB 1586 (Koretz) which adds additional language to already existing anti-discrimination provision to clarify that State law prohibits insurance companies and health care service plans from discriminating on the basis of gender in the creation or maintenance of service contracts or the provision of benefits or coverage.

Thank you again for taking the time to voice your opinion. Taking the time to communicate your opinions and concern shows that California's people are engaged in issues that affect the well being and future of our State.

Sincerely,
Arnold Schwarzenegger

The governor has a strong point that AB 849 conflicts directly with CFC §308.5, and on that basis it would have been subject to an immediate court challenge. However, the remainder of the governor's reasoning is flawed.

The currently pending court case argues that there is a constitutional right to marry, and that excluding same-sex couples is in violation of the state constitution. If that view prevails, then California will have same-sex marriage by judicial fiat. If the courts do rule that marriage must be gender-neutral, there will undoubtedly be protests and yet more wrangling on the ballot. If the courts ruled in favor of gender-neutral marriage and we had a law passed by the legislature and signed by the governor, then the issue would be much more difficult to resurrect.

The sensible course of action, to respect the will of the people as expressed both by Proposition 22 (a.k.a. CFC §308.5) and by a vote of their elected representatives, would have been to sign AB 849 (or at least allow it to become law without the governor's signature) and then leave it for the court to sort out. If there is no state constitutional right to same-sex marriage, then Prop 22 remains in force and AB 849 is invalid; if there is such a right, then Prop 22 is gone and AB 849 would be law.

Of course, one could also argue that the sensible course of action would have been for AB 849 to include a provision for a popular vote, except that it would have been difficult and costly to win, and losing the referendum would've made it more difficult for the courts ultimately to rule in favor of same-sex marriage.