Arnold vetoed: predictable, if truly depressing. He’s as good as it gets in today’s fundamentalist GOP, and he punted. I’m taking a huge amount of flak from the gay blogosphere for ever backing Arnold – and that’s what you get if you ever try and support a Republican in today’s context. Schwarzenegger’s argument is that Proposition 22 already settled the question. No, it didn’t. When Proposition 22 was passed, there were no marriage rights for gay couples in California: they were already banned. Prop 22 was not about legalizing marriage rights for gay couples in California. The point and origin of Prop 22 was to prevent marriages in other states being automatically recognized by California. In the official arguments for and against the Proposition, the proponents argued:
When people ask, “Why is this necessary?” I say that even though California law already says only a man and a woman may marry, it also recognizes marriages from other states. However, judges in some of those states want to define marriage differently than we do. If they succeed, California may have to recognize new kinds of marriages, even though most people believe marriage should be between a man and a woman.
In the same document, they even underlined this point in capital letters:
THE TRUTH IS, UNLESS WE PASS PROPOSITION 22, LEGAL LOOPHOLES COULD FORCE CALIFORNIA TO RECOGNIZE “SAME-SEX MARRIAGES” PERFORMED IN OTHER STATES. That’s why 30 other states and the federal government have passed laws to close these loopholes. California deserves the same choice.
The debate at the time centered entirely around that question. You can see that from the actual legal code that added Prop 22. Section 300 defines civil marriage. Section 308 defines recognition of out-of-state marriages. Proposition 22 was inserted at Section 308.5. The issue of whether California itself should pass a proposed equal marriage law was not on the ballot – and the ballot was five years ago. Arnold cannot get off the hook on this one. He took a stand against civil rights; and history will record that.
BE THAT AS IT MAY: The truth is: this moment transforms the civil marriage debate entirely. For the first time, unprompted by a court, a state legislature in America has passed a bill granting equality in marriage to gay couples. And this gets to the crux of the matter. The conservatives who have said they oppose equality in marriage for gay couples solely because of the way it was imposed no longer have that argument. That argument is over. Dead. Kaput. This was not “judicial activism”. It was not a court deciding for civil rights. This was an elected legislature in the biggest state of the union; just as in Massachusetts, it was and is an elected legislature, answerable to voters for their decisions. So two questions remain for conservatives. Do they prefer government by proposition or representative government? The Burkean argument has always been the latter. Today’s “conservatives” back whatever method appeases their fundamentalist base. The second question is whether conservatives believe that states should be able to make their own decisions on the question of civil marriage. The classic, principled argument has been: states’ rights, especially that of state legislatures. Today’s conservatives would remove that right from such legislatures and impose a uniform ban on any protections for gay couples across the entire country. Again, they have abandoned federalism to appease fundamentalism. Today’s Republican party wants to prevent legislators representing one tenth of the country’s citizens from governing themselves.
THE GOOD NEWS: With the “judicial tyranny” canard removed, we can now have the real debate. Are gay people equal citizens? Are their relationships worth as much as, say, Britney Spears’ 55-hour stunt in Las Vegas? Will including them in civil marriage destroy the institution, strengthen it or have no measurable impact? Is it better for society that gay people have incentives to look after each other, stay close to their families, build their own families, and become fully responsible citizens? Or should we continue to devalue their relationships, keep them on the edge of society, stigmatize and strip them of basic protections for their relationships? We may soon have ballot initiatives in Massachusetts and California that are designed to strip gay couples of all legal protections, including the civil unions and domestic partnerships that those states have enacted. Then we’ll see what’s truly behind this “pro-marriage” movement.
The Dish 