Ubiquitous
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 Posted: Thu Nov 13, 2008 4:00 pm Post subject: Arnold Schwarzenegger takes buck-passing to a new level. |
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"Gov. Arnold Schwarzenegger on Sunday expressed hope that the California
Supreme Court would overturn Proposition 8," the Los Angeles Times reports.
That is the ballot initiative that made the traditional definition of marriage
part of the California Constitution, in response to the state Supreme Court's
holding that the newfangled unisex definition was already part of the
constitution. The Times story continues:
"It's unfortunate, obviously, but it's not the end,"
Schwarzenegger said in an interview Sunday on CNN. "I
think that we will again maybe undo that, if the court
is willing to do that, and then move forward from there
and again lead in that area."
With his favorable comments toward gay marriage, the governor's
thinking appears to have evolved on the issue.
In past statements, he has said he believes that marriage
should be between a man and a woman and has rejected
legislation authorizing same-sex marriage. Yet he has
also said he would not care if same-sex marriage were
legal, saying he believed that such an important societal
issue should be determined by the voters or the courts.
There are two separate questions here: substantive (should same-sex marriage
be legalized?) and procedural (who should decide?). To our mind, the
procedural question is of greater importance. In a democratic regime,
decisions on social policy should be made not by judges interposing their own
values into the constitution, but by the people, either via their elected
representatives or directly at the ballot box. Thus if you are the governor of
a state and you favor same-sex marriage, you ought to call on the legislature
to send you a bill legalizing it.
Leaving such matters to the democratic process spares the country from the
bitter and divisive politics that have arisen over abortion since Roe v. Wade.
It allows the contending sides to find compromises tailored to local
conditions rather than impose a one-size-fits-all judicial resolution. And it
allows the side that does not prevail to remain involved in the process,
giving it an incentive to find arguments that are more persuasive to the
public.
To some people, substance trumps process. In this view, to a proponent of
same-sex marriage, the traditional definition is so unjust that it must be
overturned as quickly as possible and by any means necessary.
Schwarzenegger, however, has less credibility in making this argument than
anyone else in the world. In 2005 and again in 2007, the California
Legislature passed bills to legalize same-sex marriage. In both cases he
vetoed the bill. As the Associated Press reported last year:
"It would be wrong for the people to vote for something and
for me to then overturn it," Schwarzenegger said in September,
referring to voters' approval of Proposition 22 in 2000. "So
they can send this bill down as many times as they want, I
won't do it."
Proposition 22 was intended to prevent California from
recognizing gay marriages performed in other states or
countries.
Schwarzenegger had an opportunity to enact same-sex marriage the right
way--the democratic way. The veto was defensible as a bow to the will of the
voters, but how could that possibly be consistent with his position now, which
is that the courts should overrule the voters' will as expressed in the
constitution?
You may be wonder how the state Supreme Court could overturn a constitutional
amendment. As Dale Carpenter, a Minnesota law professor who favors same-sex
marriage, explains, the question is whether this amendment is actually a
"revision" to the constitution. Although California voters can "amend" the
constitution through a ballot measure alone, a "revision" must receive a
two-thirds vote of the Legislature before being put before the voters.
Let's suppose the California Supreme Court upholds Proposition 8. Will
Schwarzenegger then be willing to sign legislation legalizing same-sex
marriage? It doesn't matter! Such leglsiation is now unconstitutional under
Proposition 8.
Schwarzenegger seems to be a strong proponent of same-sex marriage. But he is
even stronger in his opposition to any expectation that he as governor should
take responsibilty for the question. He might have married into the Kennedy
family, but he'll never win a Profile in Courage award.
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It is simply breathtaking to watch the glee and abandon with which
the liberal media and the Angry Left have been attempting to turn
our military victory in Iraq into a second Vietnam quagmire. Too bad
for them, it's failing. |
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