WASHINGTON – California Gov. Arnold Schwarzenegger (search) has promised to veto a bill by the Assembly that would permit gay marriage because he says it goes against the will of the state's people.
But some groups aren't happy to hear that while many Republicans have been arguing that justices around the country have been engaging in judicial activism as they interpret the Constitution in ways that allow gay marraige, the governor prefers that the courts handle the issue.
"It's not an issue for the courts — he's inviting judicial activism and that's what we're opposed to," said Rich Ackerman, spokesman for the Pro-Family Legal Center, which is fighting gay marriage efforts in California.
"I've never heard of any Republican who's actually looking to the courts to decide," said Peter LaBarbera, head of Protect Marriage Illinois, which is trying to get a constitutional amendment banning same-sex marriage in Illinois. He said he was disappointed with Schwarzenegger's comments. "That's sort of a naïve view, or just passing the buck," he added.
When the Supreme Judicial Court of Massachusetts ruled in 2003 that the state constitution permits same-sex marriage (search), opponents lamented that the court, not the Legislature, was able to decide the issue for Massachusetts residents. It was this ruling that led some conservatives to charge that courts have become too activist and socially liberal for the good of the country.
Some see Schwarzenegger's position as ironic.
"Now Governor Schwarzenegger is complaining and saying that the issue of same-sex marriage should be settled by the courts and not by legislation," said Roberta Sklar, spokeswoman for the National Gay and Lesbian Task Force. "The reality is, political games are being played with peoples' lives."
In 2000, California voters approved by 61 percent Proposition 22, which created a state statute that recognizes marriage as only between a man and a woman. The statute is now being debated in California's lower courts.
Margita Thompson, Schwarzenegger's spokeswoman, has said that the governor views Proposition 22 as the will of the people, and believes that the courts need to settle that issue without the Legislature's intervention. On Wednesday, his office officially announced that he would veto the pro-gay marriage bill passed by the Assembly on Tuesday.
"We cannot have a system where the people vote and the Legislature derails that vote," said Thompson, who added that the governor is a strong supporter of California's current domestic partnership protections. "Out of respect for the will of the people, the governor will veto."
In an earlier statement, Thompson said Proposition 22 was approved, went to the courts, "and the governor believes that is where it should be decided. It's an issue for the people and the courts."
Randy Thomasson, president of the Campaign for Children and Families, which is heading an effort to get a constitutional amendment banning same-sex marriages on the California state ballot in 2006, said the governor was "half right" in his comments.
It should be left up to the people, "it should not be left up to the courts," said Thomasson, who added that since a majority of Californians passed Proposition 22, they will pass a constitutional amendment, too.
"I believe so because Californians are fed up with politicians and judges attacking their wishes, attacking their vote," he said.
Bill Whalen, a Hoover Institution scholar and former advisor to California Republican Gov. Pete Wilson, noted that this issue will likely end up in the courts.
Letting the courts decide "is not the sort of language the activists might like, but the governor is not the end game here, the ballot initiative is," he said.
"If it [constitutional amendment] passes, yeah, it will go into court in two seconds," Whalen added.
Meanwhile, gay marriage advocates are disappointed with Schwarzenegger's promise to veto what they say is the first legislative victory for gay marriage the history of the country. The Vermont and Connecticut state legislatures passed civil union (search), not marriage, laws in 2000 and 2005, respectively.
"He decided to side with the cynical view of politics instead of the right side of history," said Brad Luna, spokesman for the Human Rights Campaign.
Currently, 18 states have constitutional amendments banning same-sex marriages, and several more are poised to bring such amendments to their voters in 2005 and 2006. So far, a federal marriage amendment has failed to get off the ground, but many believe the gay marriage question will eventually land in the lap of the U.S Supreme Court, which makes the urgency surrounding the two current vacancies on that court more dramatic.
"The disaster would be a national, Roe v. Wade (search) decision on this issue," said LaBarbera, referring to the 1973 U.S Supreme Court ruling that made abortion legal despite state bans on the procedure.
Getting a more conservative court would be advantageous to those who opposes gay marriage, Whalen said. If the case were to decide whether states had the right to ban or allow gay marriages or civil unions, a more conservative court might choose not to review it, citing states' rights, he added.
"There are surprises that occur, and it would depend on how the case is presented before the court," said Whalen, noting that one must consider the individual justice and his or her views, as well as the issue.
However, groups on both sides are already getting involved in the nomination of John Roberts (search) to be chief justice of the U.S Supreme Court.
"Judge Roberts as chief justice threatens decades of a federal court system tipped against equality," Joe Solmonese, president of the Human Rights Campaign, said in a recent statement.
Gay-rights groups believe conservatives will not see gay marriage as a federal civil rights issue.
Conservatives and opponents of gay marriage, on the other hand — underscoring their desires to see such issues stay out of the courts — believe Roberts to be a strict constructionist who will take a federalist, states' rights position when needed.
"Our children and grandchildren will be impacted for good if the president appoints constitutionalists to the court who respect the Constitution and our legal system," the Traditional Values Coalition, which is battling gay marriage in the states, said in a statement when Roberts was first nominated in July. "We will no longer be dominated by a liberal 5-4 majority on the court who impose their own political views on all of us."
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