This post is by Dafydd, not Patterico; I have no idea where Patterico stands on Proposition 22. [Patterico says: read the UPDATE below and find out!]
[And yet another update below, as of 7 September 2005]
This vote is simply breathtaking in its arrogance.
California Senate approves bill allowing gay marriage
By Steve Lawrence, Associated Press Writer
Thursday, September 1, 2005
Handing gay rights advocates a major victory, the California Senate approved legislation Thursday that would legalize same-sex marriages in the nation’s most populous state.
The 21-15 vote made the Senate the first legislative chamber in the country to approve a gay marriage bill. It sets the stage for a showdown in the state Assembly, which narrowly rejected a gay marriage bill in June.
What truly separates this apart from other issues is that in 2000, the people of the state of California voted overwhelmingly for Proposition 22, the California Defense of Marriage Act, which flatly and unequivocally bans same-sex marriage: “Only marriage between a man and a woman is valid or recognized in California.” You will not see a single word about this in the SFGate story linked above… it was all a dream; it never happened.
In February of this year, a San Francisco judge struck down the law enacted by Proposition 22:
At issue were a 1977 law that defined marriage as “a personal relation arising out of a civil contract between a man and a woman,” and a voter-approved measure in 2000 that amended the law to say more explicitly: “Only marriage between a man and a woman is valid or recognized in California.”
The state maintained that tradition dictates that marriage should be limited to opposite-sex couples. Attorney General Bill Lockyer also cited the state’s domestic-partners law as evidence that California does not discriminate against gays.
But Kramer rejected that argument, citing Brown v. Board of Education — the landmark U.S. Supreme Court decision that struck down segregated schools.
“The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts — separate but equal,” the judge wrote.
But a ruling by a single superior-court judge is not sufficient to toss out a law in California; you need an appellate-court ruling to that effect, and the whole shebang is currently on the docket of the California Supreme Court, which is expected to issue a ruling sometime next year. This is important: note this. As of right now, the California Defense of Marriage Act remains the law, not having been struck down by the appellate courts.
Kramer ruled that “No rational purpose exists for limiting marriage in this state to opposite-sex partners,” which has been the law in Western civilization for the last several thousand years. What he meant, of course, was that since he himself considered same-sex marriage fundamentally rational, that must mean that any argument against it is — by definition — irrational.
But surely a judge’s test for rationality of a law is whether there are any rational arguments that can be made for it — not whether the judge himself finds those rational arguments convincing. And indeed, there are many rational arguments to be made for restricting marriage to a union between a single man and a single woman. Let’s start with the most basic one: it is in society’s interest that children be raised with both a (male) father and a (female) mother; therefore, we encourage anything that tends to lead in that direction, such as traditional marriage, and discourage that which denies it, such as same-sex marriage.
Here are a few others:
- We believe that traditional marriage empowers women and civilizes men.
- If laws against two men marrying are held to be unconstitutional, and there is thus a “constitutional right” for any two adults to marry, then what is the argument against allowing any three adults to marry?
- Cultures have the right to define themselves by enacting values into law, so long as there is some secular reason for such values; one such secular reason for rejecting same-sex marriage is that men and women are biologically distinct and complimentary, and that a union between a man and a woman is required to propagate the species… thus, such unions should be encouraged in the law and alternatives that do not serve to propagate the species (and civilize the young; see first argument supra) should be discouraged in the law.
As a judge, you do not need to accept these arguments; that is not your job… the people of the state of California already made that decision. You simply must admit that they are rational, secular reasons to support traditional marriage… and that means the people have the right to so vote. Kramer’s decision was judicial activism, pure and unadorned.
Back in August of 2004, the California Supreme Court struck down the sham “marriages” of same-sex couples ordered by Gavin Newsom, the mayor of San Francisco. But in cowardly fashion, despite the obvious fact that the court must have secretly been holding that the laws banning same-sex marriage were constitutional — else why not simply strike them down and have done with it? Newsom had, in fact, raised the supposed unconstitutionality as his primary argument — the court refused to come out and simply say so, instead explicitly denying that they were making any ruling at all on the constitutionality of the 1977 legislative definition of marriage to include only opposite-sex couples and the resounding, 61.4% vote on Proposition 22 to do the same.
What they did hold, however, was that absent an appellate-court ruling striking down a law, “a local executive official” cannot simply decide on his own that it’s unconstitutional and refuse to obey it.
We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue — whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.
Note, the court, in its zeal to supply no guidance whatsoever to anyone anywhere in the state of California as to the law, even restricted its ruling to local executive officials. They wouldn’t even go out on a limb to say that state or local legislative officials also had to follow the law. Just mayors and city councilmen.
And now we have exactly that nightmare situation: the state senate has decided, on its own, that the ban on same-sex marriage is unconstitutional… and therefore, they needn’t obey the express will of the people who enacted Proposition 22 by a margin wide enough to have passed as a state constitutional amendment — thus putting it beyond the reach even of the state supreme court — if only the drafters hadn’t chickened out and offered it only as an amendment to the State Family Code.
The state assembly has already succeeded in attaching it to an unrelated bill (despite itself having voted against the bill earlier!), so it will probably pass there, too. And it will land on the desk of Governor Schwarzenegger… whose position on same-sex marriage is not easy to fathom: he seems to be one of those who opposes SSM itself but supports civil unions that are the same in all but name; but given the reality of a bill on his desk and Schwarzenegger’s lack of any firm moral position on SSM, there is an excellent chance he will sign the bill to curry favor with the legislature, in order to gain support for his economic package.
According to Article II, Section 10c of the state constitution, the legislature can only overturn initiatives if the voters subsequently vote in favor of overturning them:
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 10. (c) The Legislature may amend or repeal referendum statutes. It
may amend or repeal an initiative statute by another statute that
becomes effective only when approved by the electors unless the
initiative statute permits amendment or repeal without their
Although it’s possible that the various state initiatives banning same-sex marriage that have already qualified for circulation will all get less than the 60% needed to amend the constitution, there simply is no way that 50% + 1 of the voters will approve an initiative recognizing same-sex marriage; support for traditional marriage is about as strong now (or perhaps stronger, after Newsom’s defiance and the legislature’s colossal arrogance) as it was five years ago.
A legislature dismissive enough of the will of the people to enact such a law in the first place, flatly contradicting the Defense of Marriage Act, will surely be impatient with that inconvenient constitutional provision. They will demand local officials begin issuing marriage licenses to same-sex couples immediately the bill is signed by the Governator. Therefore, this will all end up in court.
So it all boils down to two questions: first, is there a constitutional right for any two or three or group of adults who “love each other” to have their unions recognized by the state as marriages?
And even more fundamentally, who rules the state of California — the legislature, or the express will of the people themselves, as the constitution explicitly states? Absent a court ruling (finally sustained) striking down a law enacted by a vote of the people, can the legislature simply brush aside initiatives it doesn’t like?
Can the politicos tell the voters to drop dead?
UPDATE BY PATTERICO: I voted against Proposition 22. But I think this post raises an interesting question in the abstract: is it ever proper for a legislature to pass a law that contravenes an initiative? I’d have to think about that one; a knee-jerk “no” might open oneself up to all sorts of persuasive counter-hypotheticals. What do you folks think?
UPDATE x2 BY PATTERICO: Duh. I should have read the whole post rather than just skimming it (well, it was kinda long). Dafydd provides the authority in the post that what the legislature is doing is just flat-out illegal — unless, of course, they are simply planning on submitting the bill to the voters for approval. If they are just planning on ramming through legislation without submitting it for a vote by the people of the state of California, then I obviously don’t support that — even if I am sympathetic to the policy that they are trying to enact.
UPDATE x3 BY DAFYDD: How now, brown cow? Anybody want to cover my bet that the legislature has no intention in the world of submitting their bill to the people for ratification, but intend rather to get some pet judge to throw out Proposition 22 — and tell the people to just drop dead.
If they intended to abide by the overwhelming vote of the people, they wouldn’t have passed a bill to make same-sex marriage legal; they would have passed a bill to put it on the ballot for us to vote upon. But that’s not what they did, is it?
It’s all right, though. I’m sure it’s for our own good.