October
2, 2005
In California, Democracy vs. Gay Marriage
By Steve
Chapman
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 to
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,
you see, 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."
Article
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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 governor
is disingenuously claiming that the Legislature had overturned
the intent of the voters," jeered an editorial in the Los Angeles
Times, while 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. The fact 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. At this stage, the battle
is more about terminology than substance.
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. 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.
©
Copyright 2005 Creators Syndicate
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