September 11, 2007
California Marriage Bill Veto Likely
Once again, the California State Legislature has passed a bill to approve same-sex marriage rights. Currently, California provides a different system of same-sex partnerships called Domestic Partnerships.
Unfortunately, a veto from Governor Schwarzenegger is likely, as he vetoed a similar bill in 2005. Notably, the road towards same-sex marriage in California has not been steady. In 2000, voters approved Proposition 22, which states that marriage in California will be recognized only when it occurs between a man and a woman. Also, San Francisco Mayor Gavin Newsome permitted same-sex couples to obtain marriage licenses, which were nullified in Aug., 2004 by the State Supreme Court. (These nullified marriage licenses ultimately led to the current In Re Marriage cases--see below . . .)
It seems that Schwarzenegger may point to the view of the "people" (due to the passed proposition, now law) that clearly did not support the extension of marriage rights to gay couples.
However, this proposition was passed in 2000 and does not reflect the will of the public right now. Although, this new bill does conflict with the earlier law.
Currently, the issue is pending before the State Supreme Court (In Re Marriage Cases) to determine whether Proposition 22 (codified as Family Code Section 308.5) violates the Constitution by discriminating against same-sex couples by forbidding them from exercising their right to marry.
If the statute is not vetoed or the State Supreme Court case holds that California same-sex couples have the right to marry, California will join Massachusetts as the second state to permit same-sex marriages. (See "Legislature OKs same-sex marriage bill in the San Francisco Chronicle).
Thoughts & Musings: It seems to me that a favorable court decision is more likely. On public issues such as same-sex marriage, courts tend to take their cue from the public. As public representatives, the California legislature supports gay marriage. Perhaps the State Supreme Court will too. However, it is unlikely that Gov. Schwartenegger will change his mind--as he vetoed a similar bill in 2005. Not only would he look fickle, but he has a great excuse (Family Code Section 308.5 directly conflicts with the new statute). However, this "excuse" could potentially be distinguished, as it has been argued to apply only to out of state marriages. In other words, California voters expressed their intent not to recognize "foreign" same-sex marriages in 2000, which, arguably, does not conflict with the right to same-sex marriage in California. See post by Arthur S. Leonard from 6/26/07 on "Leonard Link" blog entitled "California Supreme Court Marriage Questions" explaining this argument in more detail.