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California Assembly Approves Gay Marriage

In a slim majority 41-35 vote from the California State Assembly on Tuesday night, California has now become the first US state to approve same-sex marriage legislation. The bill changes California's definition of marriage as between "two persons,'' instead of "a man and a woman.'' This moves the bill into Governor Arnold Schwarzenegger's side of the court, slated as the first governor to make an executive decision on gay marriage in the US. This, on the eve of a November special election will prove especially contentious:

Schwarzenegger has 30 days to sign or veto the bill. If he takes no action, the bill would also become law, and California would become the second state behind Massachusetts to legally sanction same-sex marriage and the first to do so through legislation, not a court order.

The legal ramifications of this proposed law are somewhat unclear. Under Proposition 22 passed by 60% of the populace in 2000, "Only marriage between a man and a woman is valid or recognized in California." As Kevin Drum observes, this is "murkier" than it seems:

First, at the time it passed, California already defined marriage as a civil contract between a man and a woman. The point of Prop 22, then, wasn't to define marriage in California, it was to make sure that California didn't recognize same-sex marriages performed in other states. The ballot argument made this point, and so did the attorney general, who renamed the initiative from "Definition of Marriage" to "Limit on Marriages," a change that was upheld by a state court. Needless to say, though, this interpretation of Prop 22's text remains controversial.

Second, Prop 22 was passed as a statutory initiative, not a constitutional initiative. This means that it might be found to violate the state constitution's equal protection and privacy clauses, something that would obviously be impossible if it were itself a constitutional amendment. (The state Supreme Court had a chance to rule on this a couple of months ago in a case related to California's domestic partnership law, but it punted and ruled on different grounds.)

Ultimately, it seems the courts will decide the issue even if Governor Schwarzenegger does sign the bill into law. But one can hope this is another step in social progress, slow as it might be.

UPDATE 9/8: Governor Schwarzenegger's office says he will veto the same-sex marriage bill "out of respect for the will of the people." (The Daily Review) The question of whether a similar measure to Proposition 22 will pass as easily as it did in 2000 is another issue altogether. The "will of the people" does change over time, after all.

posted by the prisoner @ 7:40:00 AM