Gov. Schwarzenegger, appearing Sunday on ABC's This Week, indicated he was inclined to protect the marriages of gay couples who legally tied the knot this year. These marriages could be at risk because of the passage of Prop 8. Schwarzenegger offers the caveat that such an order must be legal, and that he must first confer with Attorney General Jerry Brown, who has said he will defend Prop 8 while also protecting the existing marriages. Here's the exchange with interviewer George Stephanopolous.
STEPHANOPOULOS: In the meantime, some legal experts have suggested that you should, if you believe that, issue an edict, a ruling, that says that the marriages that have already taken place in California are absolutely legal. Will you do that?
SCHWARZENEGGER: Well, I have to get together with Jerry Brown, our attorney general, and see what the legal opinion is, because he's my lawyer, basically. And so, we always do those things together.
STEPHANOPOULOS: But you're inclined to do it?
SCHWARZENEGGER: It's a conversation that I can have with him about the -- if that's the legal way to go.
Lost in all the publicity about post-election No on 8 protests is the question of whether the 18,000 gay couples who tied the knot this year in California will see their marriages voided by the courts. Protecting these marriages is essential as a matter of humanity, of avoiding a bigger legal mess. Here's how to respond.
1. The Yes on 8 folks -- the opponents of same-sex marriage -- would be wise not to challenge these marriages in court. It would be both the decent and the politically wise thing to do. Forcing the voiding of these marriages could boomerang against their cause. I'm hearing some discussion among conservatives who favor this step, but I think this is probably too much to hope for.
2. Some of the state's best lawyers are working on protecting these couples and repealing Prop 8. But the courts take time. The legislature and the governor -- who played coy during the Prop 8 campaign instead of showing leadership by actively opposing Prop 8 -- need to move immediately to give every specific protection to the existing marriages that they possibly can. It's unclear what form this could take, but clear statements that the initiative not be applied retroactively would be a good first step.
Good politicians have the ability to appear to be on both sides of an issue, but Jerry Brown -- the former governor and presidential candidate, and the current attorney general of California -- is breaking new ground in this realm. Try to follow this: Brown, a likely candidate for governor in 2010, is supportive of same-sex marriage politically. But before the state supreme court, he's defending Prop 8, the just-approved initiative to ban same-sex marriage in California. At the same time, he's defending the marriages of approximately 18,000 gay couples who took the plunge in the past five months, while such unions were legal.
I've never cared for El Coyote, the Mexican restaurant on Beverly Boulevard in Los Angeles, even though it's within walking distance of my apartment. The best thing on the menu is the margaritas, and your blogger remains a teetotaler so he can stay sharp and detect drafting errors in initiatives. When I'm thinking Mexican, I hit the taco trucks, or maybe stop by the original El Cholo on Western or Mijares in my hometown of Pasadena.
But I'm heading over there tonight. Why? Because same-sex marriage supporters, full of righteous anger at the passing of Prop 8, the ban on same-sex marriage, have targeted El Coyote as part of an insane, counter-productive strategy of mindless rage at anyone or anything tangentially connected to the Prop 8 effort. The niece of the restaurant's original owners gave $100 to Yes on 8. The response? A boycott and lots of Internet rage.
People outside California may not know this, but our supreme court judges don't have lifetime terms. Every 12 years, they face "retention" elections -- up or down votesby thep ublic on whether they remain on the court or not. Two judges -- including Chief Justice Ronald George, the author of the 4-3 opinion in May that legalized same-sex marriage -- face retention elections in 2010. (The other judge up for retention was in the minority in the gay marriage opinion). Before 2010, the court will decide whether or not to overturn Prop 8, the ban on same-sex marriage just passed by voters. Writing at Fox & Hounds Daily, Joel Fox suggests George could face a campaign against his retention no matter how he decides on Prop 8.
The Prop 8 election returns are in, but the campaign isn't over. Opponents of Prop 8 -- that is, supporters of same-sex marriage -- staged protests on the west side of Los Angeles yesterday afternoon and evening., temporarily shutting down traffic on two major thoroughfares. Protestors targeted Mormons with signs and marched on the Mormon temple on Santa Monica Boulevard.
It was a brutal night for those who believe in marriage equality. Bans on same-sex marriage were enacted by voters in Florida, Arizona and California. In Arkansas, a measure to ban adoptions by persons cohabitating outside marriage was approved. (Pro-life groups backed this anti-adoption measure, by the way). What to do?
The long-term prospects for gay couples who want to marry remain good, despite these setbacks. But same-sex marriage supporters need to figure out how to speak to those who are wary of changing the legal definition of marriage -- but are sympathetic to the needs of gay folks. I think there needs to be particular attention to developing a way of talking to people of faith whose churches are adamantly opposed to same-sex unions. The separation of church and state arguments, even the anti-discrimination arguments, are valid and have their strengths, but I'd like to see something that has a certain religiosity. Gay couples who are themselves devout need to be at the front of this effort. Such couples could explain that for them, marriage is not merely about equality or about love or about getting certain legal protections. it's part of living a Godly, moral life. By getting married, they don't wish to change the sacred tradition of marriage, they want to honor that tradition.
If you were disappointed by last night's results showing a victory for a ban on same-sex marriage in California, brace yourself for what comes next. By various estimates, more than 11,000 gay couples have tied the knot in the state. (The real number is probably higher). While it would be wonderful if those marriages are not challenged in court, it's certain they will be. Legal experts are divided on whether the marriages will be ruled invalid because of the now enacted constitutional ban. And the initiative itself, Prop 8, could be thrown out by the courts. But there's a decent chance that thousands of married gay couples will have their marriages cancelled.
What to do? First off, supporters of same-sex marriage need to highlight the issue and fight like hell in the courts. But policy makers also need to plan for the possibility that the court fight will fail. The real trouble is that some gay couples replaced their domestic partnerships with marriages. So a cancellation of their marriage could leave them without any formal legal bond. It might be wise to enact legislation -- and I would hope that supporters of Prop 8 (that is opponents of same-sex marriage) would support this -- that would automatically transfer any and all cancelled marriages back into domestic partnerships. Unless of course, the couple themselves opt out.
Bans on same-sex marriage appear to have won in Florida and Arizona. And Prop 8, the California ban on gay marriage, is leading early, with nearly 53 percent of the vote. That number will likely shrink as the night goes on. Early tallies are heavy with mail ballots; those voters tend to be older, and age is the best predictor of how people vote on same-sex marriage. It's possible that this race will remain so tight that we may not know the outcome for days, if not weeks.
Supporters of Prop 8, an initiative to ban same-sex marriage, claim that if gay couples continue to be permitted to marry in
The controversy begs a practical question:: What would it be like to try to teach same-sex marriage to kindergarteners? I can only imagine how one might do that.
The scene, a kindergarten classroom, morning
Little girl #1: J is my favorite letter!