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Wednesday, September 07, 2005

The Guvinator: Kick it to the Courts

According to this article in the NYT today, the legislature in California has decided to authorize same sex marriage, though by a relatively narrow margin (41-35).  Interestingly, as Will Baude at Crescat observed, CA's movie-star-in-chief, has said this is an issue for the courts, not for the legislature.

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. "The governor will uphold whatever the court decides," Ms. Thompson said. 

I confess I am curious about how the Governor reached this decision to punt it to the courts.   Presumably, those people who say that abortion rights should be determined in state legislatures not courts (and this would include liberals and conservatives) would agree that marriage rights should similarly be determined in the state house, and not the court house.  After all, the thinking goes, neither of these issues are directly addressed in the federal Constitution.  (I'm not sure if the CA constitution has something directly on point).  Anyone have an idea for a political and/or legal rationale for Arnold's views here?

Posted by Administrators on September 7, 2005 at 12:45 PM in Dan Markel | Permalink


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Are the CA courts authorized to issue advisory opinions?

Posted by: Will Baude | Sep 7, 2005 9:37:00 PM

I've noted on my other blog some examples of a raft of post-Goodridge critiques that all go along the same lines -- "the legislature should be deciding these things." (See http://www.timesandseasons.org/index.php?p=2571 ).

Now, the opposite logic is apparently in place. Results-oriented reasoning? Looks that way to me.

Posted by: Kaimi | Sep 7, 2005 3:37:04 PM


Any idea how the courts could address the issue of Arnold doesn't sign the bill into law? What kind of lawsuit would be brought to challenge a piece of litigation that has no force?

Posted by: Hillel Levin | Sep 7, 2005 3:28:47 PM

I believe the idea is that the California Constitution does have a legislature-constraining provision directly on point, namely Proposition 22 http://primary2000.ss.ca.gov/VoterGuide/Propositions/22text.htm, and as I understand it the California legislature can't amend Proposition 22, so the state court has to figure out what it means before anybody can proceed .

That's what Eugene Volokh says anyway.

Posted by: Will Baude | Sep 7, 2005 2:46:40 PM

Yeah, the governator realized that, politically, this pisses off less people.

Posted by: Jeff V. | Sep 7, 2005 1:59:49 PM

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