The article in the SJ Merc today, Historic OK for gay vows, says that it becomes law if the governor signs it. Nothing about not being valid because of Prop 22…
Interestingly, though, Assemblyman Salinas, whom I referenced in my first post in this thread, ended up voted for the measure. The article credits him with casting “the deciding vote”, although anyone who voted for it could be so described.
Note that the measure passed both Houses of the CA legislature by only 1 vote. My guess is that the legislature is a bit ahead of the people on this one, and that a ballot initiative in '06 will overturn this piece of legislation. But it’ll be close-- a lot closer than it was last time (Prop 22).
John, I think the President of Freedonia is saying that the majority of the public will not be out in the streets advocating for gay marriage, and might even be inclined to oppose it if they are given a free choice, but that, presented with a fait accompli (whether judicial or legislative) authorizing it, they will accept it as an element of society, one that they may not personally agree with but which they can live with, much as a Baptist personally opposed to gambling can endure Nevadan, riverboat, and Indian casinos with no major dudgeon expended towards them.
A “family values” organization sues to invalidate AB 849 on the ground that AB 849 is unconstitutional. The argument will be that AB 849, a legislative statue, is in conflict with Prop. 22, an initiative statute, and AB 849 has not been approved by the electorate;
The legislature puts AB 849 before the electorate, and the electorate votes it down;
A right-wing group gets an initiative passed that amends the California Constitution to prohibit SSM, making AB 849 moot;
The pending SSM lawsuits rooted in California’s equal protection clause work their way up the the California Supreme Court, consisting of mostly Republican justices, and the court holds that SSM is not a protected right.
Unfortunately, my faith in the electorate and the system to do the right thing on this issue, at this time, is lacking.
I think the SJ Merc article overlooked the Prop. 22 unconstitutionality issue. While AB 849 becomes law upon signing by the governor, it is an unconstitutional law that will not be enforced. The legislature cannot run roughshod over an initiative like that. If AB 849 is valid law, it would completely gut the initiative process.
I am open to other opinions on the issue if someone else has another take on it.
That’s a very good point, and I was thinking about that exact possiblity earlier today as I was reading the paper. I’m not sure SSM is in that category, yet. It might very well be in 10 - 20 years, but I don’t think we’re there now.
I do believe, however, that CA will get to that state of mind before the rest of the country does. Just not right now.
It is possible that either they did a roll call vote or that the they have a system that shows the votes as they are cast and his was the final aye. Or it could just be hyperbole.
**Bearflag **got it right, and I should have been clearer in my original post. There were 4 abstensions in the Senate. A bill needs a majority in favor to pass, not just a plurality. Sorry for the confusion.
Yes, I do agree with you that basic human rights like marriage should not be up for a vote. But surely if you were a legislator in that situation you would have voted for the bill, wouldn’t you? The California Supreme Court has not risen to the challenge.
With O’Connor gone and the Stevens being 87 years old, I think the days of relying on the Courts to protect our rights is hanging by the barest of threads and may soon be coming to a close. It’s an extremly safe bet that Bush will be appointing Anti-Roe and Anti-Lawrence Justices to the bench. What will happen if these are overturned? Liberals in this country will be forced to turn to the legislatures of the blue states as safe havens.
This is not an optimal situation, since people are born who are born into Red States won’t have the same basic rights merely due to an accident of geography. But with the way things are going, if we are to have any rights anywhere in this country we must take the legislative path.
You’re right. It’s not technically the correct way to do this, and I fear that it carries an implication that the elecorate would also have the authority to take this right away, but we have to take what we can get. At least we can revel in the potential irony of a Republican trophy governor signing a gay marriage bill.
Not to beat a dead horse, but the electorate most certainly does has the authority to take away this “right”. I don’t buy the idea that marriage* is a right in the first place, but even if it were, the electorate would still have that authority. Unless you want to argue semantically that a person still has a right even if he cannot exercise that right. Either way, the electorate can prevent that person from exercising any right he might think he has.
*Marriage, in the civil sense, is a set of arbitrary priviledges bestowed upon the married couple (or group) by society. One could easily conceive of a society in which marriage was an entirely religious affair with absolutely no civil aspect at all. In fact, any state in the US could create that situation. Where would that “right” be then?
Theoretically, a state could dispense with all the laws concerning marriage. But in reality it is as close to permanent as any law can be. All these proposals to do away with all marriage in light of this gay marriage movement remind me of communities in the South that chose to pave over all their swimming pools in preferance to letting blacks use them as well.
This is incorrect analysis. An initiative that does nothing more than change the wording of California statutes can be modified immediately by the Legislature. Statutory amendments are no more sacrosanct as part of an initiative than they are as part of legislation.
What will happen is that the long-threatened initiative to amend the California Constitution will be passed around for signature and placement upon the ballot. Frankly, I expect that the social “conservatives” who oppose the concept of same-gender marriage are licking their chops at being handed a great reason to claim a need for an amendment to the state constitution.
I just read in interesting arument. I will try to summarize:
AB 849 arguably creates a dichotomy between in-state and out-of-state SSM and peacefully co-exists with Prop. 22, where AB 849 allows in-state SSM and Prop 22 only prohibits recognition of out-of-state SSM in CA.
Someone could then bring a federal Full Faith & Credit clause case to try to force CA to recognize an out-of-state SSM in CA, arguing that Prop 22 is unconstitutional under Full Faith & Credit unless CA can show that CA has a strong public policy to uphold by not recognizing SSM.
CA will not be able to show it has a strong public policy against SSM because CA allows in-state SSM pursuant to AB 849. Accordingly, the court would strike down Prop 22 as an unconstitutional violation of Full Faith & Credit.
The ultimate effect of AB 849 then would be to cause Prop 22 to be unconstitutional and void. Thus, AB 849 would violate the state constitution because the legislature cannot cause a state intiative to be void by passage of a legislative statute.
One way out of this is for CA to argue that the federal Defense of Marriage Act (DOMA) is constitutional and insulates Prop 22 from a Full Faith & Credit challenge. Accordingly, AB 849 does not cause Prop 22 to be void and, thus, AB 849 does not violate the California Constitution.
Conclusion: In an effort to preserve SSM in CA under AB 849, supporters of SSM in CA may end up arguing in favor of the DOMA, which is designed to undercut recognition of SSM.