Arnold's Legacy

Commentary: OutRight

There’s no putting lipstick on this pig. Unless he changes his mind, California Gov. Arnold Schwarzenegger will become the first executive anywhere in the world to veto a law allowing gay couples to marry. In 50 years, when the gay-marriage controversy will be history, nothing he has done as governor will be remembered more than that.

Make no mistake: the passage of a gay-marriage law by the California Legislature was momentous. Even five years ago, having a legislative body in the United States approve gay marriage was unthinkable. Legislators fret about re-election and until now even the most liberal of them have justifiably worried that a vote for gay marriage would be the kiss of electoral death. If the brave California legislators who voted for the bill survive the next election, politicians around the country will finally have some evidence that they can safely support gay marriage.

Then there’s Schwarzenegger, who came to office with the panache of a movie star, the swagger of a former body-builder, and the moral authority of a man unsullied by politics. He was refreshing. He could say what he thought and do what he wanted. He skillfully used his popularity to reshape politics and policy, for the better, in a state with 10 percent of the population of the country.

Predictions that he would be an anti-gay governor, that he would support repealing domestic-partner benefits, and even that “our very lives” depended on defeating him (as one gay Democratic state legislator warned), were unfounded and proved untrue.

Instead, Schwarzenegger has signed pro-gay legislation. Just last week his spokesperson declared that he “believes that gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationship.” Schwarzenegger, she continued, “is proud that California provides the most rigorous protections in the nation for domestic partners.” These are revolutionary statements for a Republican; indeed they’re miles ahead of many Democratic politicians around the nation.

Schwarzenegger opposes “discrimination” against gay couples. Now, with history and equality staring him in the face, he is about to blink. Why?

The coy explanation given by his spokesperson last week was this: “Five years ago the matter of same-sex marriage was placed before the people of California. 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.”

There are several things to unpack here. First note what this explanation does not say. It does not say that the governor will veto the marriage bill because he opposes gay marriage. Opposition to gay marriage itself would have been the most obvious — and defensible — reason to veto the bill.

But Schwarzenegger could not oppose gay marriage and be true to his publicly stated commitment to “full protection” for gay couples. Until he tells us otherwise, we must therefore presume that he supports gay marriage or at least that he sees no very good reason to oppose it.

So, again, why the threatened veto? The governor’s spokesperson claims that the new marriage law would undo an initiative passed by California voters in 2000 declaring only heterosexual marriages “valid or recognized” in the state. Now, in principle, the fact that “the people” voted on an issue five years ago does not preclude them from reconsidering it, this time through their elected representatives. But under the state constitution the legislature cannot “amend or repeal” a popular initiative.

Whether the gay-marriage law would really do that is an interesting legal question. There are decent arguments both ways.

On the one hand, the 2000 initiative was passed to prevent the recognition of out-of-state gay marriages and is located in a section of the state code that deals with out-of-state marriages, not in-state marriages. The new gay-marriage law would not “amend or repeal” the prohibition on recognizing out-of-state gay marriages.

On the other hand, the 2000 initiative broadly declared that only male-female marriages are “valid.” It was passed with the commonsensical background assumption that gay marriages would also not be validly performed within California.

Yet the parts of the state family code that actually define marriage were adopted in the 1970s by the legislature, not by popular initiative. So the legislature is presumptively free to change them.

My point is not to resolve this state constitutional issue, which the California courts can decide later. My point is that the issue is a debatable one and that where the issue is fairly debatable it is the responsibility of a leader to lead in the direction his heart and mind tell him is right.

If Gov. Schwarzenegger truly believes that gay couples deserve the same legal protection and support given to other couples, then it is his moral obligation to resolve reasonable doubts about his constitutional power in their favor. If he does not believe gay couples deserve marriage, then he should come out and say so, not hide behind courts and legalisms.

Around the country they are taunting Schwarzenegger with the “girlie man” label he used against his political opponents last year to accuse them of cowardice in the face of duty. He was right then about his enemies. It would be a shame if his epithet becomes his epitaph.

Dale Carpenter is a law professor. He can be reached at OutRight@metroweekly.com.

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