CA Senate Votes For Same-sex Marriage

Great Debates
101

Assume AB 849 does not directly override Prop 22. Assume both AB 849 and Prop 22 co-exist peacefully under state law and state law challenges have been exhausted. AB 849 allows intrastate SSM, and Prop 22 prohibits recognition of interstate SSM in CA.

I haven’t done the research, but my understanding of the US full faith & credit clause (FF&C) is that it is uncertain whether FF&C will force all states to recognize SSMs from other states. Generally, under FF&C, all states must recognize the official acts of all other states unless “State A” can show that the act of “State B” violates the public policy of “State A”.

As an example, let’s say CA is asked by a gay or lesbian couple to recognize a valid SSM performed in MA, an official act of MA. CA points to Prop 22 and says it doesn’t recognize interstate SSMs, so sorry to the couple. The couple sues CA under FF&C, arguing Prop 22 is unconstitutional, and CA must recognize the official acts of MA.

Under the full faith & credit clause, CA would have to recognize the MA SSM unless CA can show that recognition of the MA SSM would the violate the state public policy of CA. If CA can show recognition SSMs violates CA public policy, then CA won’t have to recognize interstate SSMs under Prop 22, and the feds can’t force CA under FF&C.

The argument is that Prop 22 will stand up as a sufficient legal barrier to an attack under the full faith & credit clause, but only if CA can show that SSMs violate CA state public policy (i.e., the “public policy exception” to the full faith & credit clause).

CA would not be able to argue convincingly that its own public policy supports Prop 22 because, even though Prop 22 is in effect, CA recognizes SSMs pursuant to AB 849.

Since CA state public policy favors SSM under AB 849, CA does not have an internal state public policy sufficient to defend Prop 22 against an attack under FF&C, and Prop 22 falls.

If Prop 22 falls under this federal FF&C attack, thanks to AB 849, then this opens the door to a new attack on AB 849 under the state constitution because AB 849 would suddenly violate the state constitution as a legislative statute that serves to void a state initiative statute.

102

Which, I presume, would re-instate Prop 22, making it impossible for the MA gay couple to have their marriage recognized in CA. But all of this would only happen if a gay couple sues to have their marriage recognized in CA. So long as no gay couple files that suit, both laws coexsist, and the same MA couple could just come to CA and get a CA marriage, which amounts to the same damn thing, so who’s ever going to bother to sue?

Except, of course, Arnie’s going to veto, the rat bastard. Oh, well. Try again next year, after we’ve bounced this asshole. Latest polls give him about 30% of the vote.

103

Agreed!

104

Governor Schwarzenegger is offering the same rationale offered up earlier in this thread by Big Whistle: that this action by the legislature contravenes the will of the people based on the proposition passed five years ago.

While I respect Schwarzenegger’s exercise of his judgement as an elected official, I think this is an unsupportable move, for the reasons I stated earlier. Five years is a long time in the world of public perception, and the legislature NOW is presumed to represent the will of the people NOW.

I would be more sanguine about Schwarzenegger’s action if he didn’t hide behind a five-year-old vote as rationale.

105

For Schwarzennegar to sign the bill would have been an act of political courage, something that is all too rare in this day and age.

106

Arnold’s popularity has waned tremendously since the recall election, and unfortunately this issue is bound up in his desire to run a successful re-election campaign. I could see a veto being justified if the the governor thought the bill was bad social policy, but to say that the legislature doesn’t represent the will of the people makes no sense at all. Sure, we have an initiative process, but that’s a once every 4 years event (or 2 years at the most), while the legislature represents the will of the people in real time.

If the people want to kick out the legislators and bring in new ones that pass another bill countering this one, then so be it. That’s how the political process works. Legislators like Salinas (per my reference above) were clearly voting their conscious, as they had ample political reasons to duck this issue.

I’m afraid that Arnold’s action here is pure politics. Of course, little goes on in government that isn’t tainted to some extent by politics, but this one stinks.

107

Agree completely.

108

Arnold’s camp is saying that Prop 22 represents the will of the people now because it is the law now. Until Prop 22 is overturned by the courts or by the people, not the legislature, it continues to be valid law, and he is bound to uphold the law.

The legislature can’t undo an initiative. This is a good thing if you support the initiative process. There should be no time limit on an initiative. The whole purpose for the initiative process is that the legislature does not always represent the will of the people, and the people should be able to do an end run around the legislature. If the goal is to undo an initiative, the way to do it is with a new initiative, not through a legislative enactment.

As much as I support SSM, AB 849 is unconstitutional on its face, and I don’t fault Arnold too much for the veto.

However, if I was Governor, I would have signed the bill. I would argue that it is really Prop 22 that is unconstitutional. The CA equal protection clause represents “the will of the people” and Prop 22 violates the will of the people.

109

AB 849 does not violate the California Constitution. The code sections it amends (Family Code §§ 301, 302, 303 and 412) are not the code section added by Proposition 22. The amendments made do not directly conflict with the wording of the section added by Proposition 22 (Family Code §308.5).

Nevertheless, there should be no disagreement that AB 849 is an attempt to undo the application of Proposition 22 to marriages made in the state of California. The assertion that Proposition 22 was intended only to apply to marriages made outside of California is disingenuous. California law at the time required a man and a woman for a marriage and the addition of §308.5 was intended to reinforce that requirement. I’ve already indicated that California’s Legislature should not attempt to overturn that expression of will by the people of the state; please note that Proposition 22 wasn’t even a close vote (61% in favor).

To this point, not one person has replied to my assertion that the attempt to amend Family Code §§301-303 is unwise because it would result in passage of an amendment to the California Constitution. Conservatives are just salivating at the chance to push such an amendment. The Guvernator, whatever his other faults, isn’t being stupid in vetoing the bill.

110

I would let the courts sort this out. It’s not the Governor’s job to determine which laws are constitutional and which aren’t; that’s one of the functions of the Court. I have no doubt that the vast majority of people voting for Prop 22 thought they were voting to ban all SSM, not just those SSM licences from out of state. But, that’s where the proposition sits in the Family code.

The only valid reason for the Governor to veto the bill is that he thinks the bill itself is really bad public policy. He hasn’t made a case for that, and I doubt he actually thinks it qualifies as “veto-type” bad public policy.

111

I disagree. All of our elected officials have the duty to uphold the constitution. Pushing that responsibility onto the courts is an abdication of their roles as our leaders.

That said, I don’t think that Arnie is vetoing this bill because he considers it unconstitutional.

112

I dunno. It seems that if the people adopt an initiative statute as Whatever Code section 101 to say “X” and the legislature comes along later and adopts Whatever Code section 102 that says “Not X” then the legislative statute would be unconstitutional because the effect is to undo the initiative, even though the legislation does not specifically amend or repeal the initiative as Whatever Code section 101.

As far as the assertion that it is unwise to attempt amend sections 301-303 now, unfortunately, you may be right. The backlash to legislative SSM might be too strong now, and the state Supreme Court is probably too conservative to overturn Prop 22 on equal protection grounds. It’s a crying shame.

Arnold’s veto may be a blessing in disguise. Hopefully, in 5 years, the people of California will be able to look to Canada and see that the nation hasn’t fallen apart because of SSM, and the electorate will undo Prop 22 by initiative. It’s sad to see California is not boldly leading the world on this issue.

113

I like the way **Bricker **describes this situation: Acts of the legislature should have a strong presumtion of constitutionality, and it’s incumbent on the opponents to demonstrate any unconstitionality. The governor’s veto process is not set up to take this into account-- the process of review by the SC is.

114

Still, does anyone really think that Arnie cares about the constituionality of this bill? He knows that by signing it, it will anger the Republican Right and he’ll need their money and votes. If he signs it, he still has to fight the unions and he won’t gain much in the way of gay or liberal support. A veto is the only thing that makes political sense. If Arnie had an 75 percent approval rating, he’d sign this bill. With an approval rating of 36 percent he needs to hold onto his base to have a chance in 2006.

Of course, this does mean that Arnold is below George W Bush in my opinion. I know George W Bush would veto this bill. Arnold has shown himself to be just another politician.

115

No, I don’t think anyone here does. See my post #106.

116

The authors of the bill are trying an insteresting tactic: They won’t send the bill to Arnold for 2 weeks. The idea is that they won’t let him veto the bill until its supporters have the chance to voice their opinions. They seem to think that he’ll be swamped with e-mails, faxes, etc in support of the bill and possibly change his mind. I think they underestimate the organization of the opposition, and that Arnold will get swamped with input supporting his veto. But, it’s still a good idea nonetheless-- they have nothing to lose since Arnold would definitely veto the bill if they sent it to him immediately.

117

We have initiatives whenever there is an election which is every six months.

Fucking Arnold. I am very disappointed that this will be vetoed. I am going to call the Statehouse right now and tell them that I want him to sign it.

You can too. Arnie’s info.

118

Hmmm.

I am trying to find turnout numbers for two elections: the prop 22 election vs. the most recent California assembly/senate elections.

During the 2000 primaries, 4.6 million voted for and 2.9 million voted against prop 22.
http://primary2000.ss.ca.gov/returns/prop/00.htm

During 2004 general elections (for apparently are for all assembly and half of the senate seats) California had a 75.9% turnout. cite: http://vote2004.ss.ca.gov/Returns/status.htm
A total of 11.4 million voters voted in the various assembly elections (over 12 million voted for president).

I think a fair case can be made that the will of the people is better expressed through their selection of legislators in 2004 than through their legislative initiative in 2000. IF not, then I assume that bum-throwing will be all the rage in the next general election…

119

Interesting argument. I think Arnold’s response would be that the initiative is a better reflection of the will of the public than the legislature because all of the legislative districts were gerrymandered by the Dems.

120

I imagine one could tote up those voting for the majority of legislator who approved the SSM bill and those who voted for those who opposed the bill and there would probably be a sizable pro-SSM to anti-SSM vote majority, though understated if gerrymandering is as alleged, but I would bet that a plurality would be people who are represented by abstainers, who voted against the pro-SSM or against the anti-SSM crowd, which obviously would be claimed by both.

Still, I would have thought that the quickest way to get it to the courts as Arnie says he wants would be to sign the bill and let the lawsuits begin.