Marrying the law and leadership

TOBIAS BARRINGTON WOLFF teaches law at UC Davis and is on the Equal Justice Society's board of directors.

IF GOV. ARNOLD Schwarzenegger follows through with his planned veto of the historic “marriage equality” bill enacted by the California Legislature, it will be a defining moment in his legacy.

A public official who acts as a mere cipher for public opinion has not met the test of leadership. Leadership sometimes calls on officials to challenge us all to recognize principle, and to overcome fear and prejudice in favor of what is right. On Tuesday, the Legislature showed such leadership when it passed the first law in the nation extending marriage equality to gays and lesbians. The governor has yet to answer the call. Instead, his unconvincing initial statement abdicates leadership and takes cover in rhetoric about the “will of the people.”

There is no question that the legal situation is complicated, a fact that Schwarzenegger is using to avoid the real issue. First, there is Proposition 22, enacted by the people of California in 2000 (hence the governor’s reference to “the will of the people”). The proposition reads: “Only marriage between a man and a woman is valid or recognized in California.” It was a response to fears that the issue of marriage for gay couples would be decided in other states, with California forced to recognize marriages performed elsewhere with no chance for local input. Because it was passed by popular initiative, it is a “super statute”: The Legislature cannot touch it.

The bill enacted, in contrast, seeks to amend the laws that govern who can form a civil marriage in California, making those laws equally available to gay couples. Proponents of the bill contend it does not violate Proposition 22 because it deals only with local marriage policy, not California’s treatment of out-of-state couples.


This position is the subject of debate. Proposition 22 uses language that could apply to Californians (when it speaks about which marriages are “valid”) as well as couples from elsewhere (speaking about which marriages are “recognized”). Proposition 22, however, was described to voters as a way to prevent other states from imposing their laws upon California, not a way to prevent our own Legislature from setting state policy. Consistent with that purpose, Proposition 22 is codified in our statutes as an exception to the provision governing how California treats marriages from other states.

Finally, there is a constitutional challenge pending in state court. A Superior Court has ruled that the exclusion of gay couples from civil marriage amounts to unconstitutional discrimination. The court found that California’s marriage laws must be available to everyone, regardless of gender or sexuality. And because Proposition 22 discriminates against gay couples from out of state, the court found that it also violates the state Constitution. The case will probably come before the California Supreme Court within several years.

Many of the legal questions swirling around marriage equality will have to be settled by California courts, as the governor has said. But they are irrelevant to his decision on the marriage bill. He is not faced with a question of legal interpretation. He is faced with a question of principle. He should sign the bill because it is the right thing to do. The million-plus gay and lesbian citizens of California should not have to prove the humanity and dignity of their relationships in every new election cycle.

Californians have already come a long way in recognizing these principles. The governor must now help lead them the rest of the way.