Upholding the rule of law is not high on the liberal agenda if it gets in the way of passing laws to benefit their special interest groups.

If Gov. Arnold Schwarzenegger goes through with his expected veto of San Francisco Assemblyman Mark Leno's measure to allow same-sex marriage in California, it's almost guaranteed the governor will say he's following "the will of the people."

That's the argument the Republican governor made two years ago when he rejected a similar measure. Although Schwarzenegger hasn't taken an official position on the new bill, he made clear in February that he did not intend to sign it.

"I don't want, as the governor, to go against the will of the people," Schwarzenegger said at an event put on by the YMCA, but added: "If it goes back on the ballot, the people can make the decision."

The Legislature approved the bill Sept. 7, and the governor has until Oct. 14 to sign or veto the measure.

Foes of same-sex marriage argue, along with Schwarzenegger, that California voters made their decision in March 2000, when Proposition 22, the protection of marriage initiative, was approved by a landslide 61 to 39 percent. The 14-word measure, which conservative and religious groups placed on the ballot, said simply, "Only marriage between a man and a woman is valid or recognized in California."

But times have changed in seven years, say supporters of Leno's bill, and voters now have elected a solid majority of legislators who want to make same-sex marriage legal in California.

"The people are speaking through their elected representatives," said Seth Kilbourn, political director for Equality California, a group backing the measure. "We want the governor to keep up with the will of the people and show the type of bipartisan leadership that he has shown on so many other issues."

Now the supporters of gay marriage insist that the will of the people has changed, at least according to the polls and the will of the legislators they have elected. But in making that claim, the insist upon the right to directly overturn a vote of the people -- and violate the California Constitution.

CALIFORNIA CONSTITUTION ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL SEC. 10.

(c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.

In other words, a vote of the people in favor of permitting gay marriage is necessary before the bill passed by the legislature can go into effect. If it were not, any vote of the people could be overturned after the next legislative election cycle was completed. In effect, the initiative and referendum process would be a farce because every proposition would require re-passage every election cycle to remain valid.

And as I pointed out two years ago, there is also an inherent problem with the argument that "time has passed and the electorate has changed" argument. Taken to its logical extreme, even Constitutional provisions themselves could be disregarded with impunity, making no pretense of upholding the constitutional processes for instituting such changes.

Supporters of the legislation, of course, don't want a little thing like constitutional law to get in the way of getting what they want. Take this argument.

The legislature didn't "derail" any vote. Proposition 22 was not voted on by the current California populace. Many of those who voted on Prop 22 are now dead, massive amounts of new voters have entered the pool and in the 5 years since that legislation passed many voters have changed their mind (according to polling data). It is the new California voting population who decided (AFTER Prop 22) that these current politicians (the ones who passed the equality bill) were fit to represent them. Now these politicians have done what they were elected to do and if anybody is "derailing" the will of the CURRENT voting population of California it is Schwarzenegger.

Unfortunately for the owner of that blog, it makes as much sense to argue that as it does to argue that Congress could reinstitute slavery without repealing the Thirteenth Amendment, since they represent the will of the people today and the Thirteenth Amendment represents the will of the people 140 years ago. Any rational person recognizes the flaw in both the posters original argument and the hypothetical I put forth -- both situations would ignore the process mandated by the respective constitutions to take the course of action in question.

I think the danger of such a scheme is obvious. Any pol with a poll could render any law or constitutional provision null and void without a real showing of popular support for the change.

The sad part is that Mark Leno and his colleagues did (and still do) have a mechanism available to repeal Proposition 22. All thy have to do is pass their legislation with a section authorizing the required popular vote on the repeal of Proposition 22. If, as they claim, the will of the people has changed in the last seven years, the repeal of Proposition 22 would be a snap. On the other hand, their refusal to include such a repeal vote in their bill is evidence that their dedication to the will of the people NOW is seriously lacking.

Indeed, Leno acknowledges that he does not particularly care what the people of the state of California want in regards to gay marriage.

"Civil rights for any group should never be put to a vote of the people. This is how we prevent the tyranny of the majority over the minority."

Ah, but is gay marriage a civil right. Most folks would argue that it is not, and the idea that it is one is a new and novel formulation. And under Leno's rubric, any group can claim any practice to be a civil right outside the purview of legislation or popular vote. Polygamy? Incest? Pre-pubescent marriage? Incestuous pre-pubescent polygamous gay marriage (yes, I'm being intentionally absurd there)? On what legitimate basis could one make a distinction between a valid civil rights claim and a spurious one upon which the people or the legislature could make law? Leno's argument fails because there is no clear or principled basis upon which to make legitimate distinctions as to teh power of the people or the legislature to act.

Which brings us back to the initial point of the article. Arnold Schwarzenegger is likely to veto the legislation in question. The California legislature can, and I would argue should, act to fix the bill by adding a repeal referendum to it and sending the revised legislation for the the governor's signature. At that point, the will of the people of California today could truly be known.

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Posted by: Greg at 12:59 PM | Comments (2) | Add Comment
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