Gay Marriage Bill On Arnold's Desk
During the first half of The O'Reilly Factor tonight (8:20 PM PST or so), a "Fox News Alert" informed viewers that California's legislature is the first in the nation to endorse a regulatory scheme that would allow gay marriage. The bill also preserves the right of religious sects to marry persons according to their doctrinal underpinnings.
Governor Schwarzenegger issued a statement shortly after the passage of AB 849 -- authored by Assemblyman Mark Leno -- that seems to indicate a veto. According to the Governor, the court system is the proper venue for the decisions about gay marriage. Schwarzenegger may also fall back on the fact that California has the best domestic partnership laws in the nation. The state's courts are currently tackling the contentious issue in challenges to an initiative statute, passed in 2000 via Proposition 22, defining marriage as solely between one man and one woman in the family code.
On a local Sacramento newscast, Leno was paraphrased as saying that Schwarzenegger was "a libertarian at heart." That may be the case, as the Governor is an avowed devotee of Milton Friedman. This legislation will provide an opportunity for the Governor to display whether or not he is a conviction politician -- and if so, of what variety.
Back in 2000, there were a few principled voices within the Republican Party who stood up on behalf on individual liberty in opposition to Prop. 22, including current Director of Finance Tom Campbell (who was running a Senate campaign against Dianne Feinstein at the time chiefly on an anti-Drug War platform). Another leading GOP voice against the measure was Ward Connerly, a former regent at the University of California who spearheaded the ballot campaign that successfully placed a state constitutional prohibition against race and sex preferences in government employment, education and contracting. Arizona Senator John McCain said that he would have voted "no" had he lived in California during the presidential primary season; operatives of the George W. Bush campaign are said to have subsequently smeared McCain as "the fag candidate" during the critical South Carolina primary.
Fast forward five years, and Leno's bill made it to the Governor's desk without a single Republican vote. Even those GOP politicians who are intellectually savvy enough to recognize that marriage is essentially a private contract enforced by civil law raise the canard that the core function of marriage is procreation. This was the argument forwarded on the Senate floor last week by state Senator Tom McClintock, usually a font of reason in California politics. I can only assume that he would not rescind the benefits of marriage to those heterosexual couples who are biologically incapable of procreation, or forestall or forsake procreation as a matter of private familial autonomy. As with the Colorado anti-gay measure (ultimately overturned by the United States Supreme Court in Romer v. Evans), Prop. 22 made no account for post-operation transsexuals -- who are legally recognized as the sex opposite that of their birth, but are still their original sex at the chromosomal level.
There should be no chromosomal incapacity to contract formation. Individuals should be free as a matter of right to decide whom to marry and whether to marry. As legal historian Lord Henry Sumner Maine once observed, the movement of progressive societies is traced by the movement from a law based on status to a law based on contract. This applies to civil marriage. Where individuals were once bound by a whole host of family obligations, social observances, religious strictures and legal restraints, they are now free to enter into, or refrain from entering into, a marital relation -- unless they happen to be gay and desire to marry someone similiar to them.
[Indeed, where are the political leaders who champion the rights of single persons, who bear a significant number of externalities affiliated with the procreative decisions of others? Single wage earners and property owners -- whatever their sexual orientation -- disproportionately underwite the costs pertaining to the rearing of others' children, as compared to those who elect to raise a child, i.e. a living, breathing tax deduction whose health care and education are usually paid for (or subsidized) by someone other than their parent.]
Schwarzenegger does have the option of allowing AB 849 to become law without his signature. If he is genuinely interested in resolving the issue via the judicial process, this bill provides him with a direct and immediate opportunity to allow gay marriage opponents to challenge the law. If the law were sustained, they could move forward with a ballot initiative that would write discrimination on the basis of sexual orientation into the California Constitution under the auspices of "family" and "morality." The only political downside for the Governor is that it will rankle his conservative base, which currently controls the grassroots of the California GOP and is forwarding half-baked measures like the California Border Police Initiative (primarily sponsored by the California Republican Assembly and Assemblyman Ray Haynes, who once had a libertarian streak).
How troubling it is that the California GOP suffers from the sort of mindless groupthink that sustains the base collectivism and raw majoritarianism that characterizes our modern politics. The absence of any debate demonstrates a wanton lack of intellectual rigor and a fleeting commitment to an individual's right to pursue happiness -- as they define it -- absent the yoke of capricious government dictates.
Congratulations to Assemblyman Mark Leno on his landmark achievement. The jury is still out on Governor Arnold Schwarzenegger. For now.
Governor Schwarzenegger issued a statement shortly after the passage of AB 849 -- authored by Assemblyman Mark Leno -- that seems to indicate a veto. According to the Governor, the court system is the proper venue for the decisions about gay marriage. Schwarzenegger may also fall back on the fact that California has the best domestic partnership laws in the nation. The state's courts are currently tackling the contentious issue in challenges to an initiative statute, passed in 2000 via Proposition 22, defining marriage as solely between one man and one woman in the family code.
On a local Sacramento newscast, Leno was paraphrased as saying that Schwarzenegger was "a libertarian at heart." That may be the case, as the Governor is an avowed devotee of Milton Friedman. This legislation will provide an opportunity for the Governor to display whether or not he is a conviction politician -- and if so, of what variety.
Back in 2000, there were a few principled voices within the Republican Party who stood up on behalf on individual liberty in opposition to Prop. 22, including current Director of Finance Tom Campbell (who was running a Senate campaign against Dianne Feinstein at the time chiefly on an anti-Drug War platform). Another leading GOP voice against the measure was Ward Connerly, a former regent at the University of California who spearheaded the ballot campaign that successfully placed a state constitutional prohibition against race and sex preferences in government employment, education and contracting. Arizona Senator John McCain said that he would have voted "no" had he lived in California during the presidential primary season; operatives of the George W. Bush campaign are said to have subsequently smeared McCain as "the fag candidate" during the critical South Carolina primary.
Fast forward five years, and Leno's bill made it to the Governor's desk without a single Republican vote. Even those GOP politicians who are intellectually savvy enough to recognize that marriage is essentially a private contract enforced by civil law raise the canard that the core function of marriage is procreation. This was the argument forwarded on the Senate floor last week by state Senator Tom McClintock, usually a font of reason in California politics. I can only assume that he would not rescind the benefits of marriage to those heterosexual couples who are biologically incapable of procreation, or forestall or forsake procreation as a matter of private familial autonomy. As with the Colorado anti-gay measure (ultimately overturned by the United States Supreme Court in Romer v. Evans), Prop. 22 made no account for post-operation transsexuals -- who are legally recognized as the sex opposite that of their birth, but are still their original sex at the chromosomal level.
There should be no chromosomal incapacity to contract formation. Individuals should be free as a matter of right to decide whom to marry and whether to marry. As legal historian Lord Henry Sumner Maine once observed, the movement of progressive societies is traced by the movement from a law based on status to a law based on contract. This applies to civil marriage. Where individuals were once bound by a whole host of family obligations, social observances, religious strictures and legal restraints, they are now free to enter into, or refrain from entering into, a marital relation -- unless they happen to be gay and desire to marry someone similiar to them.
[Indeed, where are the political leaders who champion the rights of single persons, who bear a significant number of externalities affiliated with the procreative decisions of others? Single wage earners and property owners -- whatever their sexual orientation -- disproportionately underwite the costs pertaining to the rearing of others' children, as compared to those who elect to raise a child, i.e. a living, breathing tax deduction whose health care and education are usually paid for (or subsidized) by someone other than their parent.]
Schwarzenegger does have the option of allowing AB 849 to become law without his signature. If he is genuinely interested in resolving the issue via the judicial process, this bill provides him with a direct and immediate opportunity to allow gay marriage opponents to challenge the law. If the law were sustained, they could move forward with a ballot initiative that would write discrimination on the basis of sexual orientation into the California Constitution under the auspices of "family" and "morality." The only political downside for the Governor is that it will rankle his conservative base, which currently controls the grassroots of the California GOP and is forwarding half-baked measures like the California Border Police Initiative (primarily sponsored by the California Republican Assembly and Assemblyman Ray Haynes, who once had a libertarian streak).
How troubling it is that the California GOP suffers from the sort of mindless groupthink that sustains the base collectivism and raw majoritarianism that characterizes our modern politics. The absence of any debate demonstrates a wanton lack of intellectual rigor and a fleeting commitment to an individual's right to pursue happiness -- as they define it -- absent the yoke of capricious government dictates.
Congratulations to Assemblyman Mark Leno on his landmark achievement. The jury is still out on Governor Arnold Schwarzenegger. For now.
posted by Nikos A. Leverenz @ 9/07/2005
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