Should Gov. Schwarzenegger Address Gay Marriage?

This is a partial transcript from The O'Reilly Factor, February 17, 2004 that has been edited for clarity.

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TOM MCCLINTOCK (R), CALIFORNIA STATE SENATOR: Well, the state constitution very clearly states that it is the governor who shall see to it that the laws are faithfully executed. Under state law, if the attorney general fails to enforce the law, as he's failed to do, ultimately, it is the governor's responsibility and his authority to bring the full legal resources of...

BILL O'REILLY, HOST: Right, but look, he violated...

MCCLINTOCK: ...they violated the state law.

O'REILLY: Senator, clearly the mayor violated penal code section 115. I have it right in front of me. Do you arrest him?

MCCLINTOCK: Correct.

O'REILLY: You do?

MCCLINTOCK: I believe the governor has the authority to direct...

O'REILLY: Wait, wait, wait. Do you arrest him, senator? Do you -- if you were governor -- arrest the mayor of San Francisco?

MCCLINTOCK: On day one, I would have had the full legal resources of the state of California in court. The real travesty here is that a law enacted by 61 percent of the people has been left to be defended by a group of dedicated citizen activists...

O'REILLY: All right...

MCCLINTOCK: ...against the entire apparatus of the city of San Francisco.

O'REILLY: ...but you're not going to get anywhere with the San Francisco - so I'm going to say you wouldn't have arrest him, because you wouldn't answer the question. And you're not going to get anywhere with the statute...

MCCLINTOCK: Oh, no, I believe - I -- no, no, no, no. I believe that the law has been broken. I believe that a misdemeanor has been committed. And ultimately, those people have to be brought to justice. And you are correct. It is ultimately the governor's responsibility to see...

O'REILLY: All right.

MCCLINTOCK: ...that those laws are faithfully executed (UNINTELLIGIBLE) wording of the state constitution.

O'REILLY: Then he should have been arrested six days ago. He should have been arrested six days ago. Mr. Torrez, I know you disagree. How so?

ART TORRES, CA DEMOCRATIC PARTY CHAIRMAN: Yes. I do because I believe that we're talking about the equal protection clause of the constitution. And though this initiative may have passed in 2000 in California, opinions are changing. Quite frankly, recent poll both by American Viewpoint and by the Heart Associate, Republican and Democrat polls, found that 50 percent of Americans are not opposed to gay marriage. As a matter of fact, almost 20 percent are only in favor of having a constitutional amendment to ban gay marriage according to an ABC News poll, September 2003.

So opinions are changing. And quite frankly, this has become a civil rights issue in California and clearly here in San Francisco. And that's why I don't think that people, they're moving forward to arrest the mayor because they believe the mayor may be right on civil liberty and human rights issues.

O'REILLY: All right, so the law doesn't really matter, because the polls say that peoples' attitudes are changing?

TORRES: No, that's not what I said.

O'REILLY: Well, look...

TORRES: What I said was...

O'REILLY: ...we got a law in the books here. Wait, Mr. Torres, we got a law on the books.

TORRES: Well, we have law in the books in Alabama.

O'REILLY: Yes, OK.

TORRES: We have laws in the books in Mississippi.

O'REILLY: But the federal government overrode those laws.

TORRES: To prevent Rosa Parks from sitting in the front...

O'REILLY: Mr. Torres?

TORRES: But...

O'REILLY: The federal government overrode those laws, all right?

TORRES: As they will in this case...

O'REILLY: As they may.

TORRES: ...when the court takes this decision.

O'REILLY: But you don't do that unilaterally.

TORRES: Well, but the supreme court of Vermont and Massachusetts. But you have an opportunity to create civil disobedience and a matter of conscience when the issue of civil rights of ordinary Americans are subject to this type of discrimination.

O'REILLY: All right. If he wants to do civil disobedience, I respect that all day long. You arrest people...

TORRES: Well, that's what's going now.

O'REILLY: You arrest people for civil disobedience, sir. You know, Mr. Torres, I respect you. I respect you, but...

TORRES: I respect you, too, Mr. O'Reilly.

O'REILLY: ...the message that you are sending to all Americans and people overseas watching this broadcast is a law does not have to be obeyed if you don't like it.

TORRES: No.

O'REILLY: That's the message you're sending, sir.

TORRES: No, the message I'm trying to send is that a law should be looked at based upon how it discriminates under the equal protection clause of our Constitution. The supreme court of Vermont, the supreme court of Massachusetts has so opined. And I think this issue has to be adjudicated before the courts of California. And that's what we're getting now.

O'REILLY: No, they're not getting it now.

TORRES: If the courts come back and say that this is - well, we're not, of course.

O'REILLY: No, you're not. You're not getting support. The judges won't take the case.

TORRES: A decision has been delayed until Friday.

O'REILLY: Yes, and why was it delayed, sir? Because it there was a semi-colon in the wrong place.

TORRES: Well, no, that wasn't the only reason. I think...

O'REILLY: That was the reason cited, sir.

TORRES: Well, that was one of the reasons.

O'REILLY: That was the reason. I want to get to Senator McClintock to reply.

TORRES: Well, a semi-colon can have an impact as much as a question mark.

O'REILLY: Oh, I know. A semi-colon can have an impact.

TORRES: And clearly an exclamation point.

O'REILLY: All right, go ahead, senator, you reply to Mr. Torres.

MCCLINTOCK: Well, under that reasoning, every illegal act that's ever done, can be justified on the belief it was unconstitutional. But the proper way to challenge a law like this is to apply for license, be refused, and then sue in court. This does not excuse people from not obeying the law. Nor does it excuse the state's top law enforcement officials from refusing to enforce the law.

O'REILLY: Have you called Schwarzenegger and told him this, that you're very disappointed in the way he's handling this?

MCCLINTOCK: I would certainly advise him to bring the full legal resources of the state to bear immediately to defend the law of California. That's his job as governor is clearly to find in the state constitution.

O'REILLY: And why do you think he's not doing that?

MCCLINTOCK: But I would advance that the constitution requires.

O'REILLY: Why do you think he's not doing that?

MCCLINTOCK: Oh, I don't know. I'm not a mind reader, Bill. I've tried. I'm not very good at it.

O'REILY: All right. Mr. Torres...

TORRES: He's not talking to him.

O'REILLY: ...what this is going to lead to, sir, and I think this is a good thing, let's clear all this up, is a constitutional amendment. And that's what it's going to lead to, because this is anarchy. It's out of control, at least in Massachusetts. Nobody took unilateral action.

But San Francisco has basically sent a message to the country that we're going to do what we want. We don't care what the proposition said. We don't care what the law says. We're going to do what we want. And that's going to force the constitutional amendment, but I'm going to give you the last word, Mr. Torres. Go ahead.

TORRES: Well, I believe that we are not an anarchy here in San Francisco. Quite frankly, it's quite peaceful and loving outside I hear around San Francisco and around City Hall.

I think what needs to happen is in any contemporary society, when we feel that one group or another is being discriminated against, it's appropriate for the authorities to challenge those laws. And if those law come back and say you should not have a marriage but a civil union, then that will be the law of the land. But I think the issue must be adjudicated to clear so many questions regarding these relationships.

O'REILLY: All right. Gentlemen, as always, thank you very much. We appreciate it.

TORRES: Take care, Tom.

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