California votes to legalize same sex marriage

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The California State Assembly just voted to legalize same sex marriage [*]:
SAN FRANCISCO, Sept. 6 - California lawmakers on Tuesday became the first in the country to legalize same-sex marriage, with the State Assembly narrowly approving a bill that defines marriage as between "two persons" instead of between a man and a woman.

Unlike Massachusetts, where gay men and lesbians are permitted to marry because of court rulings, the legislators in California voted to amend the state's family code without the threat of legal action.


The measure now goes to Gov. Arnold Schwarzenegger, a Republican, who has supported domestic partnership legislation in the past but has not taken a public position on the marriage bill.

A spokeswoman for Mr. Schwarzenegger, Margita Thompson, said after the vote that the governor believed that the issue of same-sex marriage should be settled by the courts, not legislators, but she did not indicate whether that meant he would veto the legislation. The bill did not pass with enough votes to override a veto.

Proposition 22 (passed in 2000) already prohibits same sex marriage, but is under currently being challenged in court. It sounds like even if Schwarzenegger signs the bill things will be left in a pretty uncertain state.

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So, assuming California passes a law unambiguously allowing gay marriage, do you suppose that the crowd of social conservatives who hate judicial activism so much will be happy with this approach? (That is, will they be saying "California is wrong and the courts should tell them so," or "California's legislature has passed a bad law, but it's the law and the courts have to enforce it?")


Can the California State Assembly nullify a state-wide referendum? If so, then the Governator should sign the bill into law. If Californians have an issue with it, they should take that up with their representatives at the ballot box.

How about, "The CA constitution has just been ammended to probit the bill just passed, so the courts should ignore the bill."

It's not judicial activism to enforce the law, it's judicial activism to create law. You're been dishonest.

Judicial nullification was eloquently defended by Jay in the Federalist papers, as a duty of the courts independent of Constitutional specification, but it can be derived in the negative from the Supremacy clause. Yes, there are idiots out there saying that judicial nullification is impermissible. These aren't constitutional republicans. These are quasi-conservative democrats, (please note the use of lower case) and as such are anti-constitutionists.

In answer to Grumpy's question, the answer is "it depends". Statewide ballot measures in California can create or amend laws or amend the California constitution. Prop 22 amended an existing California law on marriage. It was targetted at not requiring California to recognize same-sex marriages made outside the state. It did not touch the language in the related
laws that define what marriage means in CA.

This bill amends the laws for what constitutes marriage in the state, and does not touch the other element. If it is signed into law, the end result would be that a marriage held in Boston would not be recognized in California, but a marriage held in San Francisco would be. (Note that none of the marriages
that were held in San Francisco were contrary to Prop 22
as a result of this, and that they cannot be used to challenge it).

That would have to be cleared up by a second bill clearing up Prop 22, or by a decision of the courts that full faith and credit applied. In addition to the court cases challenging California's marriage law on equal protection grounds, there are court cases where full faith and credit is being tested (on the basis of two couples who were legally resident in MA and moved to CA after marrying).

Confused? You won't be after this episode of Soap....

I doubt Schwarzenegger will sign this, but if he did, I would expect court cases to try and put it on hold while a constitutional amendment banning same sex marriage is put before the people. There is one proposed; see this article on the Lockyer title fight for one of the more interesting aspects.

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