The Overlooked Legal Option That Would Let Governor Schwarzenegger Fully Respect Proposition 22 and the Will of the People, Yet Also Sign the Gay Marriage Bill

By VIKRAM DAVID AMAR AND ETHAN LEIB

Friday, Sep. 16, 2005

Last week, California Governor Arnold Schwarzenegger, through a spokesperson, asserted that "respect for the will of the people" compels him to veto the legislature's recently-enacted bill that attempts to recognize same-sex marriage for in-state residents.

The Governor's reference to "the people" is apparently to Proposition 22, an initiative passed by California voters in 2000 that placed into the statute books the following single sentence: "Only marriage between a man and a woman is valid or recognized in California." On account of this initiative statute, Schwarzenegger believes the legislature's measure is foreclosed. Although Schwarzenegger undoubtedly has the right to veto the bill, his claim that respect for the "will of the people" requires him to flatly reject the legislative proposal is, as we will explain, overstated.

When Attitudes Are Changing Rapidly, the True Will of the Current People is Often Hard to Discern

For starters, more than five years have passed since Californians adopted Proposition 22. The reality is that we don't know what California voters think today -- what their current will really is. The voters have elected new state legislators since 2000, and the electorate of 2005 is itself different from the electorate of 2000 in many ways.

Particularly on the question of gay families, much has changed nationally and in the Golden State. In the past year, for example, California implemented one of the most extensive domestic partnership laws in the country. And recent polls show that although 61% of those who voted favored Proposition 22 in 2000, about half of the state electorate today is supportive of full-fledged gay marriage.

Does The Legislature's Same-Sex Marriage Bill Really Conflict With Proposition 22? Unfortunately, Yes.

Of course, the problem of "changing demographics and changing attitudes" means, more generally, that many statutes on the books - perhaps especially statutes enacted by voter initiatives - might seem anachronistic and out-of-touch with today's views. And yet until these outdated statutes are amended, we must faithfully respect and apply their terms. Indeed, the executive branch's duty to enforce duly enacted state statutes that have not been invalidated by appellate courts was reinforced by last year's California Supreme Court opinion chastising San Francisco Mayor Gavin Newsom for his own actions permitting gay marriage.

As we analyze in much more detail below, under California's state constitution, amendments or repeals of initiative statutes themselves require approval of the voters to become effective. So it becomes quite important to decide whether Governor Schwarzenegger is right when he says the legislature's bill inevitably conflicts with the operative terms of Proposition 22.

Alas, we think he is. San Francisco Assemblyman Mark Leno and other sponsors of the bill argue that there is no insoluble tension between it and Proposition 22 because that initiative measure does not define marriage for domestic, in-state purposes. Rather, they claim, it merely requires that California not recognize same-sex marriages that were entered into in other jurisdictions. According to Leno, Proposition 22 says nothing about - is agnostic on - the question of recognizing in-state same-sex marriages.

As one of us wrote in an earlier column, Leno's position has some support. The materials distributed during the initiative campaign in 2000 do reveal a focus on recognition of marriages that take place in other states. We know that the initiative's supporters were especially concerned that California might be forced to recognize same-sex marriages from other states like Hawaii. Moreover, Proposition 22 is codified into California's family law code in the very place where the code discusses recognition of foreign marriages.

Finally, Proposition 22 was self-styled a "Defense of Marriage Act," parallel to the federal act with the same name enacted by Congress under Bill Clinton's presidency. And that federal law explicitly focused on each state's freedom to refuse to recognize same-sex marriages performed in other jurisdictions.

But the question isn't whether Leno's reading of Proposition 22's meaning is non-frivolous; the question is whether it is a winner: In deciding what action to take on a bill, a governor charged with faithfully executing state law must decide whether in his best judgment the bill is in fact legally enforceable - he's got to make a call one way or the other as to the best reading of state law.

On balance, a faithful governor -- obligated by California law to respect and enforce a duly-enacted statute like Proposition 22 until it has been invalidated by state appellate courts -- would conclude there is no lawful way to implement Leno's bill as things stand right now.

Here's why: In addition to the textual awkwardness of reading the broad words of Proposition 22 to apply only to out-of-state marriages, if we embraced Leno's interpretation we would be left with a situation where California recognized in-state same-sex marriage but did not recognize similar marriages entered into by out-of-staters. And this California cannot do under the federal Constitution - particularly Article IV's privileges and immunities clause and/or the so-called "full faith and credit" principle -- which generally prohibits discrimination by a state against persons from other states.

Thus, unless we can say that the voters who enacted Proposition 22 actually intended that their initiative not apply if and when the legislature recognized same-sex marriage for in-staters -- which seems quite unlikely even if Leno is right that only out-of-state unions were actually before the voters -- then implementation of Leno's bill would effectively make Proposition 22's operative language concerning recognition of out-of-state marriages unenforceable.

And that, it seems to us, runs afoul of a state constitutional provision that in effect says the legislature cannot through ordinary legislative processes "amend" or "repeal" a statutory initiative.

A Third Way - Sign the Bill, Defer Implementation and Call for Popular Electoral Approval

But does that mean that the Governor has to veto the bill? To put the question another way, are the Governor's only two choices vetoing the bill on the one hand, or signing it and implementing it right now on the other?

We think not; we think the Governor has a third choice that he should adopt based on a little-known provision in the state constitution. California's constitution, in Section 10 (c) of Article II, affirmatively empowers the legislature to amend or repeal referendum statutes such as Proposition 22 by another statute so long as the new statute "becomes effective only when approved by the electors."

This means that even if (as we believe) Leno's bill can be said to amend or repeal Proposition 22, the bill is not out of constitutional bounds. Rather, the bill simply can't become effective until voters approve it through a mechanism of direct democracy. The Governor may sign the bill and instruct officers not to enforce it until it is approved by the California voters.

Interestingly, the provisions of the California constitution describing this unusual combination of legislative and direct democracy activity do so in terms that invite, rather than discourage, legislative action. The constitution is not phrased to say: "The legislature may not make amendments to statutory initiatives except with the approval of the voters." Instead, it says: "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective" when approved by the electors.

Moreover, the legislature has more flexibility to invite popular approval to change statutory initiatives than it does to propose state constitution amendments for popular assent. A constitutional amendment proposal requires two-thirds approval of each house of the legislature, whereas a legislative proposal seeking to amend an earlier statutory initiative requires only a simple majority of both houses if it is approved by the Governor.

To repeat, the state constitution and respect for statutory initiatives do not require a gubernatorial veto of Leno's bill even if the bill conflicts with Proposition 22; rather, the constitution merely requires that the new statute not be placed into effect until it gets approval from the voters.

Thus, if Schwarzenegger really cares about the will of the people and is worried about the seeming conflict with Proposition 22, he can abide by the constitution by signing the bill and delaying its implementation while he seeks a special election so that the people can consider the new law.

And when he calls for such an election, Schwarzenegger should make clear that he thinks Proposition 22 should be amended. When you are Governor, respecting the will of the people involves helping move that will in the direction of fairness and justice. In a well-functioning representative democracy, leaders lead - and don't just reflect -- the polity.

Why Signing the Bill, But Not Putting It Into Effect Right Now, Makes Practical And Theoretical Sense

One further reason why our suggested course of action makes sense is the uncertainty of the legal status of Proposition 22 itself: California courts have before them strong claims that the voter-enacted law is unconstitutional under the state constitution's equal protection, due process, and privacy provisions.

Under our proposed course of signing but delaying implementation pending voter approval, if the California Supreme Court ends up striking Proposition 22 down, the Leno bill's legislative validation of same-sex marriage would become effective immediately, since it would no longer be an amendment or repeal of any valid voter initiative. (And if the high court upholds Proposition 22, then the Governor's "sign-but-delay-implementation" approach would have no world-altering effect unless and until voters confirmed his actions.)

Finally, our approach in this essay recognizes that although there is surely much rhetoric characterizing the legislature's actions as "anti-democratic," there is also much to be said for not fetishizing the results that direct democracy produces. Direct democracy is sometimes (maybe even often) defective in at least four different ways. First, direct democracy as currently designed is extremely susceptible to those with deep pockets controlling the terms of debate.

Second, statutes put to the general population for consideration are routinely drafted in ways that citizens cannot understand. Indeed, the debate about just what California voters enacted in Proposition 22 may attest to this.

Third, empirical evidence reveals that those who vote in ballot measure elections are older, more educated, richer, and more ideological than - and thus not very representative of -- the general population. In this regard, it bears noting Proposition 22 was passed during a small turnout primary election in March rather than on a general Election Day in November. If part of the rationale for direct democracy is that our representative institutions are failing in actually representing the citizenry and their interests, then it is a serious problem that voters in direct democracy do not fare much better on the representativeness scale.

Last, substantial empirical evidence shows that people change their minds about many policy matters when they have had an opportunity to reflect on an issue by discussing it with their fellow citizens and policy experts. Experiments by Stanford's James Fishkin have proven the point time and again: after deliberations, citizens routinely alter their preferences in unpredictable ways.

Given these realities, we should welcome a hybrid political system that facilitates a mix of direct democracy and representative democracy. The California constitution, it turns out, provides for just such a mix: A legislature that carefully thought through its bill can forward it to the Governor who in turn can sign it and send it along to the people for their ratification. Oftentimes, neither elected officials nor directly democratic devices alone can adequately measure the "will of the people" to which Governor Schwarzenegger rightly wishes to defer.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Ethan J. Leib is a professor of law at the University of California, Hastings College of the Law. He graduated from Yale Law School in 2003 and received a Ph.D. in Political Science from Yale in 2004. His book, Deliberative Democracy in America: A Proposal for a Popular Branch on Government, came out in paperback this summer.

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