Schwarzenegger: Let Gays Marry Now

California Governor Arnold Schwarzenegger says there is no governmental or public interest in continuing a ban on gay marriage. But what about the will of his constituents?

Arnold Schwarzenegger and Jerry Brown are both urging Judge Walker to end his stay on his ruling overturning Prop 8.

In an extraordinary court filing, Gov. Arnold Schwarzenegger asked Friday that gay marriages be allowed to resume immediately in California after a federal ruling that the state’s voter-approved ban on gay marriage is unconstitutional.

The Republican governor filed his brief with U.S. District Court Judge Vaughn R. Walker before a Friday deadline to submit arguments on whether to continue a stay of Walker’s decision against Proposition 8.  “The Administration believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” wrote Kenneth C. Mennemeier, an attorney representing Schwarzenegger, in the brief. “Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.”

Walker concluded in a decision Wednesday that Proposition 8 violates the equal protection and due process rights of gays and lesbians. The initiative passed with 52 percent of the vote in November 2008.

As governor, Schwarzenegger is named as a defendant in the case, although he remained neutral in the lawsuit challenging Proposition 8. The governor was against the initiative when it was on the ballot and chose not to defend the constitutional amendment in court. He filed his brief Friday in his role as a named defendant and on behalf of two other administration officials.

The Schwarzenegger administration contended in the brief that there is no governmental or public interest in continuing a ban on gay marriage after Walker’s decision.” Instead, the administration said that allowing such marriages to resume would further the state’s interest in recognizing the rights of gays and lesbians. It also said that there would be no administrative burden for the state to issue marriage licenses to gay and lesbian couples. California issued 18,000 such licenses before passage of Proposition 8.

Schwarzenegger applauded Walker’s decision earlier this week.  “For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves,” the governor said in a statement Wednesday.

California Attorney General Jerry Brown, a Democrat, filed a similar motion. Brown had argued that Proposition 8 was unconstitutional when the measure went before the California Supreme Court last year.

This is indeed extraordinary. Schwarzenegger is the representative of the people of California, a majority of whom voted to amend their constitution to reserve marriage to opposite sex couples.  So, it’s rather absurd to argue that “there is no public interest”   in upholding their decision.   Indeed, it’s his duty to stand up for their wishes here until the appeals have been exhausted.

Now, Schwarzenegger is sworn to “support and defend the Constitution of the United States and the Constitution of the State of California,” so one could argue that this is a higher duty if he feels strongly that the amendment violates the U.S. Constitution (by definition, it can’t violate California’s Constitution, since it’s an amendment to it).   But, if he thinks that, he should have joined the suit on the other side rather than remaining neutral.

Beyond that,  there’s real harm in starting up same-sex marriages again when there’s a decent chance that Walker’s ruling will be overturned.   Not only will the will of the voters have been circumvented but more people will be in the bizarre circumstance of having been married and later having those marriages either canceled out or otherwise in limbo.

Regardless of how it plays out in court, California will have gay marriage within the next decade.  That’s where the national attitudes are trending and California is blazing the trail.  Prop 8 passed narrowly (52-48).   But it should play out either through the political process or through the exhaustion of the judicial process, not on the whims of a lower court judge.

Update (Doug Mataconis): Perhaps even more extraordinary than the position Schwarzenegger has taken on the stay is the fact that California’s Attorney General, Jerry Brown, has filed an application with the Court asking that Judge Walker lift the stay on his ruling and allow gay marriages to proceed in California.  First of all he’s the Attorney General of California and it’s ordinarily his job to defend state laws in Court, although in this case the task of defending Prop 8 fell to outside attorneys. Second, Brown is a candidate for Governor and he’s essentially taking a position that’s opposed by at least half of his state’s residents. The politics of this are getting very interesting to say the least.

FILED UNDER: Law and the Courts, US Politics, ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. TJ Parker says:

    Re Schwartenegger: “But, if he thinks that, he should have joined the suit on the other side rather than remaining neutral.”
    How could he possibly have done that? He is the defendant in this case.
    “Beyond that,  there’s real harm in starting up same-sex marriages again when there’s a decent chance that Walker’s ruling will be overturned.   Not only will the will of the voters have been circumvented but more people will be in the bizarre circumstance of having been married and later having those marriages either canceled out or otherwise in limbo.”
    The will of the voters has been determined to be an unconstitutional abridgement of the freedom of a minority.  Regarding cancellation: the *defense* has no standing to argue that implementation of the law will harm those represented by the *prosecution*.  And the true defendants of the case, Schwartzenegger in particular, has stated that there is no harm.
    Once again, its remarkable that nobody on the pro-Proposition 8 side of this debate is ever willing to argue their true motives. And so, instead of rational argument, we get these meaningless nonsense arguments that will never stand up in court.

  2. Herb says:

    “But it should play out either through the political process or through the exhaustion of the judicial process, not on the whims of a lower court judge.”

    First….”the whims of a lower court judge” isn’t exactly a fair characterization of what happened here, is it? Judge Walker didn’t wake up and say, “I think I’ll overturn Prop 8 today.” A case was brought before the court, arguments were heard, and the judge ruled.

    Second, I don’t think the people who oppose gay marriage oppose it because of the process. Even if it goes to the Supreme Court and they uphold the decision, I suspect many opponents will treat that case much like they do Roe V Wade: with unending contempt.

    Third, it seems to me that gay people are being intentionally put in a lose-lose situation. Put it up to a vote, and people who should have no say whatsoever vote NO. Take it to court, and the judge is just acting on a whim. Either way, they can’t win.

    Which I guess is kind of the point.

  3. JKB says:

    Well, regardless of opinions on the gay marriage issue, given the mood of the voters these days, I’m fairly sure they’ll notice that when it came to faithfully protecting and defending the laws of the State of California, the governor and attorney general gave a big FU to the citizens of California.

  4. MarkedMan says:

    James, the impression I’m getting here is that you think marriage is not a fundamental, constitutional right, but one that can be granted and removed by popular vote.  Is this correct?
    Would a vote taking away the right of Lindsay Lohan or Mel Gibson to marry be legally acceptable?  What about people that don’t have enough money to properly raise children and would require school lunch programs and medicaid?  What if the majority felt that by preventing them from marrying they would be less likely to have children and therefore reduce the burden of taxes?  Again, I’m not asking if this is an ethically defensible position or even a logically sound one, just whether you feel it is legally acceptable?

  5. James Joyner says:

    James, the impression I’m getting here is that you think marriage is not a fundamental, constitutional right, but one that can be granted and removed by popular vote.  Is this correct?

    The idea of same-sex marriage was not only anathema but absurd within recent memory. The idea that it’s enshrined in the Constitution is, therefore, absurd.

    As a matter of public policy, I have no objection to changing the rules.  But let’s not pretend that we’re “taking away” something that has never been thought to exist.

  6. Fred Beloit says:

    Gee I hate it when some AH judge tries to change the meanings of everyday words. From now on we’ll have to prefix the word “real” to marriage when referring to a man/woman marriage. What a catastrophy!

  7. MarkedMan says:

    Ah.  So your argument is that since none of the founding fathers even contemplated gay marriage, or at least spoke about it, that it cannot be part of the founder’s intent and therefore not in the purview of a federal court?  And therefore subject to popular vote?  OK, so my two examples don’t apply here, as the founding fathers knew both asses and indigents who married.

  8. Herb says:

    “But let’s not pretend that we’re “taking away” something that has never been thought to exist.”

    So gay marriage is an innovation. I don’t see why the default position, legally speaking, is to resist it rather than accommodate it. If we were talking about an innovation in clean energy technology or financial products, it would be a different story, right?

  9. Grewgills says:

    Second, Brown is a candidate for Governor and he’s essentially taking a position that’s opposed by at least half of his state’s residents.

    No, he’s taking a position opposed by at least half of the people who voted on Prop 8 in the last election.
    He is running as a Democrat and almost certainly more than half of those who voted for him in the primary and more than half of those who will vote for him in the upcoming election voted against Prop 8.

    The idea of same-sex marriage was not only anathema but absurd within recent memory. The idea that it’s enshrined in the Constitution is, therefore, absurd.

    The same could have been and was said about interracial marriages.  This decision rests on the same principles as Loving v Virginia.

  10. Sirkowski says:

    Joyner, if you’re gonna fret like a woman, maybe you should go back to your kitchen. You’re no sexual tyrannosaurus.

  11. tom p says:

    The idea of same-sex marriage was not only anathema but absurd within recent memory. The idea that it’s enshrined in the Constitution is, therefore, absurd.

    James, I have read the constitution a time or two and the idea that “marraige” (of any kind) is enshrined within it is absurd. Marraige is nowhere mentioned within the entirety of the document.

    What IS mentioned in the Constitution is:

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Read it again. It does not say “any STRAIGHT citizen” it says “ANY citizen”. Notice, please, that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

    pretty well covers the marraige is not a right argument as well.

    James, once again you have fallen into the trap of trying to solve a 21st century problem with an 18th (or 19th, or 20th) century document.

    It does not work that way, and if you are going to make an argument that the founding fathers (or those that followed)never envisioned this scenario (therefor did not write it into the C), you are throwing out every strict constructionist argument ever made. If I read the Constitution and strictly interpret it…

    Gay marraige is allowed…. or no marraige is allowed.

  12. Franklin says:

    This headline reminds me of the humorous time years ago that Schwarzenegger declared, “I think that gay marriage should be between a man and a woman.”
     

  13. James Joyner says:

    James, once again you have fallen into the trap of trying to solve a 21st century problem with an 18th (or 19th, or 20th) century document.

    It does not work that way, and if you are going to make an argument that the founding fathers (or those that followed)never envisioned this scenario (therefor did not write it into the C), you are throwing out every strict constructionist argument ever made.

    Homosexuality predates the 21st C and, indeed, the Constitution.

    Given that the Constitution is silent on the issue and there is no common law concept of gay marriage, it’s pretty hard to argue that the 14th A was somehow intended to uproot the concept of marriage as it existed at the time.  It’s the judge, not me, who’s trying to shoehorn an imagined right into a centuries-old document.

     

  14. Herb says:

    It’s the judge, not me, who’s trying to shoehorn an imagined right into a centuries-old document.

    Fair enough…but on the flip side, there’s no constitutional right to ban gay marriage either.
    There is, however, constitutional language protecting the enforcement of contracts (and you don’t have to squint too hard to see marriage as contract).  There are equal protection clauses.  There’s the first amendment, which provides not only freedom of speech (if corporate $$ is speech, then “I do” better be too!) but freedom of association (including intimate association).
     
    There’s a lot more in the U.S. Constitution supporting gay marriage than denying it, which is why the Bush administration attempted (unsuccessfully) to amend it.  Someone knew they didn’t have a constitutional case…and without that amendment, they still don’t.

  15. floyd says:

     I worked in an industry which put the highest priority on safety.
    If a job were determined to be safety related , then all other work for maintenance or production took a back seat. This produced an environment wherin every bit of work which got done was “safety related” whether it was or not.
    Those who did not join in this game got nothing done. Those who manipulated the system did. The industry became less safe and less competitive as a result.
     
    I live in a country which puts highest priority on constitutional rights…  
     .

  16. floyd says:

    “There’s a lot more in the U.S. Constitution supporting gay marriage than denying it.”
     “there’s no constitutional right to ban gay marriage either.”

    Herb;
     This all  depends whether homosexuality is criminal and/or perverse behavior.
     Some claim that it is not.
     Others claim otherwise.
     This proves that the question is not settled, but may have reached an impasse, which explains why  there is such vitriole and name calling in place of measured  argument.
      It appears that the argument is truly in the hands of reprobate minds.
     This explains the slow progress in it’s settlement.
     I think the outcome is clear in the present political environment.

     As for the truth… It will remain unaltered, whatever the legal outcome.