On Gay Marriage in California

Yesterday, the California Supreme Court held, 4-3, that under that state's constitution the state could not extend marriage to heterosexuals and deny it to homosexuals. It's a big ruling - perhaps bigger than the similar decision in Massachusetts a few years ago - simply because of the sheer size of California. Gleen Greenwald has a good write up of the decision, what it is and what it isn't.

I want to focus on one reaction, in particular - the very predictable whine of the opponents of gay marriage that the court's majority were "activist" judges. Put aside, for a second, that for most people "judicial activism" = a decision they don't like. Put aside, for another second, that these judges were doing what judges since time immemorial have done - resolve a conflict between two (or more) applicable laws, applying previously decided precedent in the process.

Consider, however, that, in this case, the will of the people appears to support gay marriage in California. While the voters passed a ballot initiative that was anti-gay marriage back in 2000, since then the California legislature has twice passed legislation to sanction gay marriages. In both cases, the bills were vetoed by Governor Schwarzenegger. Why?

Gov. Arnold Schwarzenegger vetoed a same-sex marriage bill Friday, the second time in three years that such a measure died on the governor's desk.

Schwarzenegger vetoed a similar bill in 2005.

'I support current domestic partnership rights and will continue to vigorously defend and enforce these rights,' the governor said in a statement Friday.

In his veto message, the Republican governor said it is up to the state Supreme Court and then, if necessary, voters to alter Proposition 22, which defines marriage as between a man and a woman in California.

In other words, a weak-willed Gov punted the issue onto the court. I don't know if he wanted the court to go one way or another on the issue, but he certainly wanted the court to do the heavy lifting. And it did.

The situation reminds me of a law school experience I blogged about a while back:

I'm reminded of when I heard a lecture by ACLU president Nadine Strossen while I was in law school. They were fighting the Communications Decency Act in court at the time. She told of trying to sway Congressmen to vote against the Act arguing that it violated the First Amendment (as the Supreme Court later held that it did). She got no takers, with one Congresscritter actually telling her that a "no" vote would be dangerous politically and that the Supreme Court would clean up the mess down the road.

In other words, sometimes we need the courts to do the job that the politicians are too scared to do (because, to be fair, they're scared of our reaction). So, California, don't blame the court for doing its job and deciding an issue of law that nobody else wanted to decide.