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Marriage for all

September 08, 2005

CALIFORNIANS CAN TAKE PRIDE in the fact that their Legislature is the first in the nation to pass a law expanding the right to marry to gay couples. It's in keeping with the state's progressive heritage, and the American West's respect for individual freedom, to take government out of the business of passing judgment on the lifestyle choices of its citizens. If the state of California, as opposed to a church, is going to award licenses to couples who make a commitment to each other, it should do so on a nondiscriminatory basis.

Alas, Californians' pride will be fleeting because Gov. Arnold Schwarzenegger announced Wednesday afternoon that he will veto the bill. The governor is disingenuously claiming that the Legislature has overturned the intent of voters who, in 2000, passed Proposition 22. That measure had to do with recognizing same-sex marriages performed in other states. Schwarzenegger has also indicated that this is an issue best left to voters and the courts, not mere lawmakers. Does he not believe in the American system of representative democracy?

Among opponents of gay marriage, there are two basic strains of argument: Some people don't like gays, and some don't like gay marriage. The argument against gays is best exemplified by Assemblyman Dennis Mountjoy (R-Monrovia), who told the Washington Post that gays do not deserve the right to marry because "they are not normal." Reduced to its essence, this is a rationale for bigotry.

To his credit, Schwarzenegger rejects this reasoning. Instead, he favors a more respectable but less coherent argument: Gay marriage has been foisted on an unsuspecting public by a) liberal activist judges; b) liberal activist lawmakers; c) liberal activists. When given the opportunity, as they were in California in 2000 and in 11 other states in 2004, voters opposed state-sanctioned gay marriage. Even if they favor gay marriage personally -- as Schwarzenegger is said to -- politicians are wrong, so goes the theory, to get too far ahead of public opinion.

The notion that gay marriage is being foisted on anyone is dubious; until early Wednesday morning, in fact, opponents were fond of pointing out that no legislature had ever approved same-sex marriage. California has now taken that argument away from them, and so they are reduced, like the governor himself, to demanding the intervention of those same courts that just a few days ago were supposedly stacked with liberal activists.

In reality, no one branch of government has "final say" on an issue. Legal decisions can be overruled (or rendered meaningless, in some cases, by a new law). Laws can be vetoed or declared unconstitutional. Vetoes can be overridden. Even the majority, as the founders recognized, must be prevented from tyrannizing the minority; just because most voters agree on something doesn't mean it's right.

Which brings us back to the role of judges in resolving this debate. Separate from the Legislature's move this week, California courts are considering challenges under the equal protection clause of the state constitution to any ban on same-sex marriage. So Schwarzenegger will get his forum, though probably not the outcome he wants. The outcome here is inevitable; it's only a question of timing.

And once the highest court does order the state to stop discriminating, it will be harder for critics to complain about activist judges getting ahead of the political process. In this case, judges will be reaffirming the Legislature's intent.

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