Wednesday, September 07, 2005

The Buck Stops Where?

The reasoning behind Governor Schwarzenegger's position on a law passed legalizing gay marriage is specious and also demonstrates the friction between forms of government:

"In Governor Schwarzenegger's personal life and work in public service, he has considered no undertaking to be more noble than the cause of civil rights. He believes that gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationship. He is proud that California provides the most rigorous protections in the nation for domestic partners.

"Five years ago the matter of same-sex marriage was placed before the people of California. The people voted and the issue is now before the courts. The Governor believes the matter should be determined not by legislative action which would be unconstitutional but by court decision or another vote of the people of our state. We cannot have a system where the people vote and the Legislature derails that vote. Out of respect for the will of the people, the Governor will veto AB 849."

First off, can somebody please show me where the right of homosexuals to get married is part of Constitutional law? Then show me where it is proscribed. I'm waiting. This is yet another consequence of Roe v. Wade, the idea that a court is ultimately the body that makes laws in effect if not fact. The California Legislature, duly elected by their constituents, has passed a law that does not contravene any Constitutional provision with which I am aware. Therefore the Governor may choose to veto or sign the bill for whatever reasons he chooses to profess, but to say that it is up to the courts, even if a case is pending, is ducking responsibility.

Also problematic is the initiative process, which largely seems to benefit issue advocacy groups and lawyers. California voters passed, by significant majorities, Propositions 187 and 209 which were subsequently eviscerated or nullified by courts. (In yet another example of a legislating judiciary run amok.) Why didn't the voters of California force (and expect, for that matter) their elected representatives to codify similar provisions into law or decline to do so? There seems to be a form of political cognitive dissonance here in California: Either attempt to pass laws through a direct election, or have the courts do it, but, for the love of God, don't let our Legislature do it!

There is so much, too much, ephemera in politics. (The manufactured evidence and outrage over Bush's National Guard record, for example.) And a surfeit of hypocrisy too. (That means you, Tom DeLay.) So why is it on the truly substantive issues of the day we allow the courts to arrogate the power to make momentous decisions?

Predictably, both sides of this issue will respond with outrage or delight depending on their point of view. It will be really interesting to note what happens if the electorate, through another initiative, allows gay marriage. Will the Left then, as it has with 187 and 209, respect a court challenge? Will the Right view the will of the people, as they did with those propositions, as sacrosanct?

(For the record, I support gay marriage for a number of reasons, notably that homosexuals have every right to be as miserable as heterosexuals.)


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