A third option on gay marriage by Vikram David Amar, Ethan J. Leib

CHANGING ATTITUDES ABOUT FAMILIES
A third option on gay marriage
- Vikram David Amar, Ethan J. Leib
Tuesday, September 20, 2005 - SF Chronicle

Gov. Arnold Schwarzenegger has asserted that "respect for the will of the people" compels him to veto the Legislature's bill recognizing same-sex marriage for in-state residents.

The governor's reference to "the people" is apparently to Proposition 22, passed by California voters in 2000 comprising this single sentence: "Only marriage between a man and a woman is valid or recognized in California." Because of this initiative, Schwarzenegger believes the Legislature's measure is foreclosed. Although Schwarzenegger has the power to veto the bill, his claim that respect for the "will of the people" requires him to reject it is overstated.

For starters, more than five years have passed since Californians adopted Prop. 22, so we don't know precisely what their will is today. Voters have elected new state legislators since 2000, and the electorate of 2005 is itself different from that of 2000 in many ways. Particularly on the question of gay families, much has changed nationally and in the Golden State. In the past year, for example, California implemented one of the most extensive domestic-partnership laws in the country. Recent polls show that although 61 percent of those who voted favored Prop. 22 in 2000, about half of the state electorate today is supportive of same-sex marriage.

Of course, the problem of changing demographics and changing attitudes means that many statutes on the books -- perhaps especially statutes enacted by voter initiatives -- might seem anachronistic and out-of-touch. Yet, until these outdated statutes are amended, we must respect and apply their terms.

Under California's state constitution, amendments or repeals of initiatives require approval of the voters to become effective. So it becomes quite important to decide whether Schwarzenegger is right when he says the Legislature's bill inevitably conflicts with the operative terms of Prop. 22.

Assemblyman Mark Leno, D-San Francisco, and other sponsors of the bill argue that there is no insoluble tension between it and Prop. 22 because the initiative does not define marriage for in-state purposes. Rather, they claim, it merely requires that California not recognize same-sex marriages entered into in other jurisdictions. Leno's position has some support. The materials distributed during the initiative campaign in 2000 do reveal a focus on recognition of marriages that take place in other states. The initiative's supporters were especially concerned that California might be forced to recognize same-sex marriages from other states, such as Hawaii.

But, on balance, a faithful governor -- obligated by California law to respect and enforce a duly-enacted statute such as Prop. 22 until it has been invalidated by state appellate courts -- should conclude there is no lawful way to implement Leno's bill as things stand right now. Putting aside Leno's stretch of Prop. 22's text, if we embraced his interpretation, California could recognize in-state same-sex marriages but would not recognize similar marriages entered into by out-of-staters. California cannot do this under the federal Constitution, which generally prohibits discrimination by a state against persons from other states.

Unless we can say that the voters who enacted Prop. 22 actually intended that their initiative not apply if and when the Legislature recognized same-sex marriage for in-staters, then implementation of Leno's bill would make Prop. 22's operative language concerning recognition of out-of-state marriages unenforceable. That runs afoul of a state constitutional provision that, in effect, says the Legislature cannot through ordinary legislative processes "amend" or "repeal" a statutory initiative.

But does that mean that the governor has to veto the bill? Are his only two choices vetoing the bill or signing it and implementing it right now? The governor has a third choice that he should adopt based on a little-known provision in the state constitution: Section 10 (c) of Article II affirmatively empowers the Legislature to amend or repeal referendum statutes such as Prop. 22 by another statute so long as the new statute "becomes effective only when approved by the electors."

This means that even if Leno's bill can be said to amend or repeal Prop. 22, the bill is not out of constitutional bounds. Rather, it simply can't become effective until voters approve it through direct democracy -- that is, until a majority of voters ratifies it during an election. The governor may sign the bill and instruct officers not to enforce it until it is approved by the California electorate.

Thus, if Schwarzenegger really cares about the will of the people and is worried about the seeming conflict with Prop. 22, he can abide by the constitution by signing the bill and delaying its implementation while he calls for the bill to be considered by the people directly at the ballot box, so that the people can consider the new law. We believe that when he does, Schwarzenegger should make the case for altering Prop. 22. When you are governor, respecting the will of the people involves helping move that will in the direction of fairness and justice. In a well-functioning representative democracy, leaders lead -- and don't just reflect -- the polity.

Vikram David Amar and Ethan J. Leib are professors of law at Hastings College of the Law in San Francisco. Amar, a 1988 graduate of the Yale Law School and a former clerk to Justice Harry Blackmun, is a co-author of the Cohen and Varat constitutional law casebook. Leib, a 2003 graduate of Yale Law School, is author of "Deliberative Democracy in America" (Penn State University Press, 2004).

Page B - 7
URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/09/20/EDGOVEQCDS1.DTL