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1, 2, 3, Not It! : How The Separation
Of Powers Is Helping California
Avoid Gay Marriage

By Andrea K Rufo

17 September, 2005

Sometimes the separation of powers can be harsh. Take gay rights efforts in California – a state with takes pride in just how close it's willing to treat gay unions like marriages but refuses to take that final step to make them legal. Though it is not scheduled to appear on his desk immediately, Governor Arnold Schwarzenegger has already stated clearly that he will veto Bill AB 849, the recently passed legislation that makes the law defining marriage gender neutral, thus allowing same sex marriage. The bill passed the state congress on September 6th by a slim but successful margin (41-35), making California the first state to legalize same sex marriages by legislature. The bill also comes in the aftermath of a series of court battles reacting to San Francisco Mayor Gavin Newsom's decision last year to issue same sex marriage licenses – an act the California courts ultimately determined was an overstep of his authority as mayor.

In his announcement of his decision to veto, Gov. Schwarzenegger argued that the bill was unconstitutional because in 2000 the California voters approved a DOMA-like ballot measure defining marriage as between a man and a woman, although, the legitimacy of that ballot measure is still being challenged in the courts. In a released statement, the Governor's office stated: "The people voted, and the issue is now before the courts. The governor believes the matter should be determined not by legislative action - which would be unconstitutional - but by court decision or another vote of the people of our state. We cannot have a system where the people vote and the Legislature derails that vote."

As gay rights advocates and the affirmative voting members of the California legislature wait for the official veto to derail AB 849, they find themselves stuck between a rock, a hard place, and, um, another hard place. The California courts, in reaction to the marriage licenses handed out in San Francisco show an unwillingness to uphold gay marriages, specifically those sanctions by members of the Executive branch. Reciprocally, Governor Schwarzenegger, as head of the Executive Branch in California shows an unwillingness to uphold gay marriages when such efforts to secure them are done through the legislature. It appears then that in California you can't turn to your mayor or Governor to secure gay marriage. You can't turn to the Courts. And, after October 9th (the deadline for the Governor to veto AB 849) you can't turn to the legislature either. What's a gay rights activist to do?

The real problem in California is not so much that the branches of government have conspired against gay citizens to preclude them from every receiving equal rights such as marriage, but rather that the excuse Gov. Schwarzenegger has proffered for his impending veto is flimsy if not fallacious. Granted he's under no obligation to give a compelling reason at all, and even if he were they are several he could come up with, including that not a single member of his party voted for the bill. But to place the blame outside of himself or his party and on to the presumed will of the people is to misunderstand and abuse democratic theory in an effort to save face and convert a failing term into a re-election bid. (According to RollCall, Schwarzenegger will announce his candidacy for re-election in the upcoming weeks.)

Gov. Schwarzenegger rests his veto on the presumed will of the people, but, given the means by which he secured his current job, he should be acutely aware that the will of people change. The ballot measure he speaks of is four years old, passed in 2000 while Governor Davis was still in office and supported, and was passed prior to the Lawrence v. Texas decision granting rights of privacy to homosexual couples. Even ignoring the potential changes four years can bring (from demographic to ideological shifts in the populace) the Governor is also glossing over the history of the ballot measure he's referring to.

The measure, better known as Proposition 22 states that "Only marriage between a man and a woman is valid or recognized in California." The Proposition was designed as a reaction to gay marriages in other states, although the federal Defense of Marriage Act had already removed the full faith and credit requirements that force one state to recognize the legal unions of another state. Not only did DOMA eliminate the potency of Proposition 22, but California Family Code Section 300 already defined marriage as between a man and a woman (it was Section 300 et seq which the California Supreme Court cited in ordering San Francisco Mayor Newsom to cease issuing marriage licenses to gay couples). To a large extent then, Schwarzenegger is really basing his veto on the will of the California representatives to Congress circa 1996 and the will of the legislation even earlier than that. Not to mention that in the debate surrounding it, Proposition 22 was incredibly controversial and passed by a slight majority of the vote with 61.4% support. And, as previously mentioned, the constitutionality of Proposition 22 has yet to be conclusively determined by the courts.

Certainly we can't entirely base future legislation on the presumption that the voters can't make up their minds, or that they are subject to change. And in fact, there would be less reason to doubt Gov. Schwarzenegger's assertion of Proposition 22 as the definitive evidence of the will of the people, had the people not also voted for the legislature which has passed AB 849.

A proposition is a ballot measure proposed to the citizens for their approval. It's a form of direct democracy in a system which is otherwise representative. So which is more important? Which vote trumps the other: the vote for your representative who is then instilled with the power to pass legislation on behalf of their constituents or your vote on a ballot initiative pre-written and handed down to you by either the same legislature or a minimum number of citizen signatures? And where in that debate does the Governor get the power to definitively answer that question for you? And one must wonder, if Gov. Schwarzenegger derives the power to make such a decision from his position of elected official then isn't his ability to decide proof that the vote for elected officials outweighs the individual vote on a ballot measure?

As direct and representative democracy principles find themselves clashing over the constitutionality of AB 849, citizens of California find themselves in a complicated position. Gov. Schwarzenegger claims the vote on the ballot initiative preempts the voting of the legislature, but the legislature is imbued with the power to pass or deny legislation based on the will of their constituents. Thus, for some citizens, their voting power is rendered either meaningless or moot. They are likely to have voted for a representative who voted for a measure their Governor will veto on account of a vote they may have cast four years earlier on a ballot initiative. And had they not been one of the privileged few to have voted on or for that initiative, their vote for Congressional representative has, at least on the issue of gay marriage, been permanently preempted.

This would be the opportune time to turn to the judicial branch for guidance, but the California courts are equally indecisive on how to treat gay partnerships. As mentioned earlier, California really is one of the top states in the union for extending marriage-like privileges to gay couples. The most recent such endeavor came in the California Supreme Court's decision a few weeks ago to grant full parenthood rights to former same sex couples, even where there was no legal adoption. While the decision (which came down in response to three different cases) was more a nod to the new role of technology over biology in reproduction, its effect is to extend full benefits to a homosexual parent that would not have otherwise been afforded unless the couple had been legally married (rights like survivorship and benefits). The decision follows much of the reasoning that lead to the passage of California's Domestic Partnership Law, which requires state contracts to offer benefits for employees' same sex partners. And the decision raises that troubling question the Court has yet to answer: if same sex couples are afforded almost all the same privileges as heterosexual couples, why continue to deny them legal marriages?

Indeed the Court has chosen to remain unclear on that question. In response to the activities in San Francisco, the California Supreme Court ordered an end to permitting same sex marriage licenses. In an August 2004 decision the court found that the Mayor had overstepped his legal authority and then voided the marriage licenses issued during the time. But they did not make a decision on whether or not the California constitution allowed same sex marriages as a civil right. But it's a decision made in March of this year which befuddles the issue and Gov. Schwarzenegger's veto the most. In March, San Francisco Superior Court Judge Richard Kramer struck down Proposition 22, finding that it is a "basic human right to marry a person of one's choice." Citing the laws and rulings which have extended privileges to same sex couples, Judge Kramer argued that "California's enactment of rights for same-sex couples belies any argument that the State would have a legitimate interest in denying marriage," concluding that "there is no rational state interest in denying them the rites of marriage as well." He also concluded that Proposition 22 was wrong, irrational and outdated. The decision is now on appeal, so Judge Kramer's decision has of yet no actual effect. But sadly, the California Supreme Court announced last week that it would not immediately decide the issue. Thus turning to the Courts to determine the possibility of gay marriage promises to be a long and confusing process.

But then again, turning to the legislature would remain ineffective in the wake of the Governor's veto. By virtue of the Governor's reasoning, and the slow procedural hesitancy of the courts, California citizens advocating for gay marriage find themselves being tossed around from one branch of government to another like a hot potato no one wants to end up holding. Though designed to prevent any one person or branch from gaining too much power, in California, the separation of powers has made it possible for no one branch to make a decision at all. Their deflection of responsibility onto each other has instead left the issue of gay marriage in limbo and the California people without power to affect it.











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