Opinion: Unfair to Arnold?

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A readers and some bloggers have faulted The Times for saying, in a Jan. 3 editorial, that ‘if Gov. Arnold Schwarzenegger had signed a bill in 2005 legalizing same-sex marriage instead of vetoing it, the California Supreme Court would have been spared the task of deciding, as it probably will this year, whether a voter-approved ban violates the state Constitution’s guarantee of equal protection under the law.” Even if the governor signed the bill, the argument goes, the high court eventually would have to rule on the constitutionality of Prop. 22.

Not necessarily. Schwarzenegger could have signed the bill with a clear conscience, and if he had done so the Supreme Court might have stayed on the sidelines instead of agreeing, as it did in December, to review a lower-court ruling upholding the limitation of marriage to opposite-sex couples. With a Schwarzenegger signature, same-sex marriage would have been legalized in California by the governor and the legislature, not by “activist judges.”

But what about Proposition 22, approved by the voters in 2000, which says that “only marriage between a man or a woman is valid or recognized in California’? In enacting the bill Schwarzenegger vetoed, didn’t the legislature concede that “the California Supreme Court is the governmental body that has authority to make a final determination regarding the meaning, validity, or invalidity of [Prop 22]?

It did. But, as The Times noted in an editorial published in 2005 after Schwarzenegger said he would veto the same-sex marriage bill, Prop 22 can (and should) be interpreted as barring the recognition of same-sex marriages performed in other states.

That was the legislature’s view as well. It’s based partly on history and partly on the fact that Prop 22 is codified in Section 308 of the Family Code, which used to say, without respect to gender, that “a marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.” Thanks to Prop 22, Section 308 now says (in 308.5) that “only marriage between a man and a woman is valid or recognized in California.”

Having concluded that Prop 22 referred to out-of-state same-sex marriages, the legislature took aim at another part of the Family Code, Section 300, which defines marriage as “a civil contract between a man and a woman.’ The vetoed bill would have changed that wording to ‘a civil contract between two persons.’ Section 300 was written by the legislature, and could be rewritten by the legislature.

Had Schwarzenegger signed the bill, the gay and lesbian Californians who brought the suit now before the Supreme Court would have gotten what they wanted – the right to marry in the state. Of course, opponents of same-sex marriage could have challenged the law in court, citing judicial opinions that have assumed that Prop 22 covered more than out-of-state marriages. Even then, the Supreme Court could have decided that the legislature was right to construe Prop 22 as referring only to out-of-state marriages. That would finesse the constitutional question.

Does The Times editorial page owe the governor an apology? Not for suggesting that he would have changed the dynamic around same-sex marriage by signing the bill. But some readers took the editorial to say that we thought his signature would have averted all future lawsuits over same-sex marriage. In litigious America – and initiative-happy California – that would be way too much to hope for.