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05/27/2009

Video: Your support's nice, governor. Your pen stroke would've been better

by Jeremy Hooper

Arnold Scharzenegger had the the chance to sign a marriage equality bill. Twice. Both times, he forfeited the opportunity to step up and become a civil rights hero.

But even though the California governor passed up his own moment to lead on this issue, he does seem confident that the ultimate outcome will be pro-equality:

True, Schwarzengger cited the courts as reason why he didn't sign, with his punting ultimately going in our favor. And true, Prop 8 could have happened even if the state had earned its marriage rights legislatively rather than judicially. But it's still a little annoying to see him being so confident that we on the side of equality will prevail when he twice relinquished his chance to stand up and clearly articulate to his constituents (and especially those within his own party) why civil fairness is a good thing for California, its economy, its traditions, and its peace. His lack of support in '05 and '07 undeniably weakened those who were hoping to move the public forward on this issue, while emboldening those whose desired course goes the other way.

Who knows if his mid-decade stand would have staved off the nightmare that is Prop 8. But one thing is for sure: His feet-dragging certainly will not, and should not, go down in history as a profile in courage. On an issue that needed (and still needs) leaders willing to put their genitals on the chopping block, he instead put on steel underwear. So while we will appreciate, and even celebrate, his support from here on out, we will not pretend that his past negligence was inconsequential.

Arnold Schwarzenegger Pro Gay Anti-Prop 8 [YT]

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Your thoughts

And this from a jackass who has suggested that eliminating state medical support from 35,000 medically indigent AIDS patients will help to alleviate the state's budget woes. I was almost ready to kiss-and-make-up with the flip-flop-inator, until he pulled that gem out of his ass.

He is supposed to be on CNN at 5pm. Hopefully they will grill the bastard on that this afternoon. Balancing the budget on the backs of those who are most vulnerable is the lowest form of vile. Even if it were to cut off more state benefits from the radical religious granny brigades who love to hate on us, it's still disgusting.

Posted by: Dick Mills | May 27, 2009 11:53:48 AM

My understanding is that the illegality of those legislative bills would've had negative effects on marriage equality in California. I don't know this for sure, as Arnold vetoed for those reasons, but at the same time it should be duly noted that signing those bills would not have made them lawful. In fact, the common thinking is that he prevented a lot of needless courtroom.

However, it would've been nice if he had said "despite these vetoes on technical grounds, I support marriage equality," which he did not do.

Posted by: Bruno | May 27, 2009 3:18:45 PM

Bruno: The idea that the marriage bills were "illegal" is mostly a right wing construct. Most on our side believe that a marriage bill would have in no way conflicted with prop 22.

This is how the ACLU put it at the time:

"California Family Code Section 308 states the general rule that a marriage contracted in another state that is valid under that state’s law will be recognized as valid in California.

Proposition 22 established an exception to this rule that prohibits California from recognizing same-sex marriages contracted in another state. However, Proposition 22 did not prohibit marriage between same-sex couples within California - such a prohibition already existed in Family Code Section 300, which was established by the legislature and defines marriage under California law as between a man and a woman.

Proponents of Proposition 22 themselves acknowledged that the initiative was merely meant to "close a loophole" between California's marriage law and the law of other jurisdictions that were considering proposals to permit same-sex marriage."
http://ga1.org/aclu_sc_action/alert-description.html?alert_id=1677085

Yes, a marriage bill would've surely gone to court, has Schwarzenegger signed it into law. But I'm convinced that the court would have upheld it.

And yes, even with his vetoes, he could've voiced support. But he did not.

Posted by: G-A-Y | May 27, 2009 3:39:15 PM

Actually, I disagree. Proposition 22 had the same wording as proposition 8 "only marriage between a man and a woman is valid or recognized in the state of California." The same language the judges agreed usurp even the court itself legally regarding marriages performed WITHIN and WITHOUT the state.

I think based solely on the legality of the legislative bill vs. the people's vote, the people's vote would have won. That's a narrow judgment not dissimilar to what the judges are saying about prop 8's validity. The question of the legality of denying marriage equality based on the equal protection clause is what would have in either case overturned proposition 22. The legislative bill was by definition not capable of being legally enacted, the way the legislative system (including initiative) is set up in California. Perhaps that's just an incorrect reading on my part...however I believe Schwarzenegger when he said it was a court's decision. I of course still agree that he could have signed the bill anyway.

Posted by: Bruno | May 27, 2009 9:01:36 PM

By all means disagree, Bruno. I'm just telling you what the working logic was at the time. What I quoted you from the ACLU was the stock answer for the "Does the marriage equality bill conflict with Prop 22?" question. It was common belief that if put to a test, the court would've determined that 22 spoke only to recognition of out-of-state marriages, not whether same-sex unions could be performed in CA. Whether or not that would have been the case is up for debate.

While 8 has the same wording as 22, the diff. is that Prop 8 is a constitutional amendment, whereas 22 was only a statute.

Now, the matter of whether or not the people could have still invalidated a legislatively-enacted (as opposed to judicially-enacted) marriage law via Prop 8 is a separate question. And yes, based on the court's determination yesterday, it's likely that Prop 8 would have still been upheld under that set of circumstances. However, has the governor led on this issue and signed the bill either time that it hit his desk, I firmly believe that he could have had some positive effects that would have kept 8 from ever passing. Plus it would have taken away that pesky "activist judges" argument that the far-right so effectively (and frustratingly) uses against us. The "activist legislature and governor who you elected" argument is not nearly as effective as the judges one.

Posted by: G-A-Y | May 27, 2009 10:04:56 PM

What I don't understand then is...why did 22 only speak to out of state marriages and 8 to all? Just because the people who put 22 on the ballot said it was a gap-filler? I'd be curious if the intent of the ballot providers would have been enough to convince the justices that the language was limited only to out of state marriages.

Posted by: Bruno | May 28, 2009 1:20:13 PM

Well, as stated in the cited ACLU snip: Prop 22 established an exception to California Family Code Section 308, which applied to the recognition of out of state marriages. But that's not the code that spoke to same-sex marriages being banned in the state. That section was Family Code Section 300, wherein the legislature chose in 1977 to limit California marriage law as applying only to that which exists between a man and a woman. So since it affected ONLY section 308 and not section 300, the working belief was that it had no effect on the ability of the legislature to amend section 300 so that marriage would be open to same-sex couples. But keep in mind that some of 22's issues, like whether or not it would have eliminated legislative-enacted marriage, were never really tested.

Then, of course, 22 was mooted by the May '08 ruling. So the anti-gays pass Prop 8, which, as a constitutional amendment (complete with a higher threshold for getting on the ballot), speaks not only to one section of state law or another, but rather to state law in general. It's a sweeping alteration to the governance of CA.

Posted by: G-A-Y | May 28, 2009 1:45:02 PM

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