Gay marriage vs. democracy in California

October 05, 2005|By STEVE CHAPMAN

CHICAGO -- California Gov. Arnold Schwarzenegger has vetoed a bill legalizing same-sex marriage, and as someone who thinks matrimony should be open to gays, my first impulse is to say he's dead wrong. But my second and lasting impulse is to conclude the governor did the right thing and stated the right reasons. Sometimes, how you get where you're going is more important than the destination itself.

The bill marked the first time gay marriage was approved by a state legislature rather than a state court, as in Massachusetts. Supporters say opponents of judicial activism should be pleased that the decision came through democratic processes rather than judicial fiat. But as it happens, the legislature's action, far from being a triumph of democracy, was a repudiation of it.

California has an unusually liberal system of ballot initiatives, which makes it easy for citizens to bypass the legislature and approve new laws by popular referendum. Five years ago, 61 percent of them voted for Proposition 22, which stated, "Only marriage between a man and a woman is valid or recognized in California."

The supporters of gay marriage, however, are not content to respect the will of the people. A few weeks ago, they persuaded the California Assembly to override Proposition 22.

But the governor refused to go along, saying the issue should be resolved either by the voters or by the courts, which are now considering a lawsuit arguing that the ban violates the state constitution. "We cannot have a system where the people vote and the legislature derails that vote," said a statement issued by the governor's press office.

This argument brought a chorus of boos from liberal commentators. The New York Times accused him of hiding behind "a fig leaf."

A fig leaf? Is that what you call it when 4.6 million people go to the polls to enact a law expressing their preference? Is it "disingenuous" to say that what California voters approved actually demonstrates their intent?

When the state constitution allows the voters to decide an issue themselves rather than through their elected representatives, the least their elected representatives can do is defer to their judgment. Otherwise, what is the point of ballot initiatives? To reverse a popular referendum suggests that California legislators are not only out of touch with their constituents but disdainful of them.

The critics insist that is not the case. They say Proposition 22 is hopelessly obsolete because public sentiment has changed since 2000. In a recent survey, Californians were evenly divided on same-sex marriage, with 46 percent in favor and 46 percent against.

But if public sentiment has really evolved, the supporters shouldn't go to the legislature to repeal Proposition 22 - they should go to the voters. That they chose not to push for a new referendum suggests a fear they would lose again.

The other argument against the governor's veto is that while democracy is fine, the majority should not be allowed to deprive a minority of its rights. But it's hard to see what, exactly, gays are being deprived of. Though they are barred from formal marriage, the state does have a domestic-partner law that, as the gay-rights group Lambda Legal notes, has been expanded "to include nearly all rights and also the responsibilities of spouses under state law."

In practice, the domestic-partner system is a close facsimile of civil unions, which are a close facsimile of marriage.

Whether the remaining deprivation violates the state constitution is up to the California Supreme Court, which will have to decide what "equal protection of the laws" means in this context.

Governor Schwarzenegger's detractors say it's hypocritical for him to say the issue should be decided only by the voters or the courts.

But in California's distinctive context, that reasoning makes perfect sense. The voters passed a law, which the legislature has a moral obligation to respect. Like all laws, though, it may not violate rights guaranteed by the state constitution.

In time, I expect, Californians will come to see that they gain nothing by excluding gays from marriage. When that day comes, they will know how to change the law. Until then, supporters of same-sex marriage should support their democratic right to be wrong.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun.

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