California Gov. Arnold Schwarzenegger (R), who twice vetoed legislation that would have legalized same-sex marriage, has surprised gay-rights supporters by urging a federal judge to allow gay couples to resume marrying in the state without further delay.
Lawyers for Schwarzenegger, Attorney General Jerry Brown, two gay couples and the city of San Francisco all filed legal motions last Friday asking Chief U.S. District Court Judge Vaughn Walker to implement his ruling striking California’s voter-approved same-sex-marriage ban as unconstitutional.
“The Administration believes the public interest is best served by permitting the court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” the Republican governor’s lawyers said on his behalf. “Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.”
In his 136-page decision overturning Prop. 8 last Wednesday, Walker said he was ordering the state to cease enforcing the 22-month-old ban. But he agreed to suspend the order until he could review the Aug. 6 briefs.
The measure’s sponsors have asked the judge to keep the ban in effect until their appeal of Walker’s ruling invalidating Prop. 8 is decided by higher courts.
They argued in court papers filed earlier this week that resuming gay marriage now would cause legal chaos if the U.S. 9th Circuit Court of Appeals or U.S. Supreme Court reverses Walker’s ruling.
It was unclear when the judge would decide whether to grant a stay that would prevent marriage licenses from being issued during the appeals process.
If he does clear the way for same-sex couples to wed, lawyers for sponsors of Prop. 8 said last Friday they would seek an emergency order from the 9th Circuit to prevent that from happening.
The governor and attorney general almost always defend state laws when they are challenged, regardless of their personal views. But in this case, both Schwarzenegger and Brown refused to participate in fighting the lawsuit aimed at overturning the ban, even though they both were named as defendants.
That left the job of defending Prop. 8 to its backers, a coalition of religious and conservative groups known as Protect Marriage.
Although Schwarzenegger opposed the ban when it appeared on the November 2008 ballot and said after the election that he hoped a court would overturn it, he officially took a neutral position in the lawsuit.
During the year it was in Walker’s courtroom, the judge several times pointedly asked about Schwarzenegger’s position on the case. The governor’s motion last week was his boldest pronouncement on the issue.
“His support today and at other critical junctures in our struggle against this discriminatory measure goes a long way in helping us realize our ultimate dream of achieving full equality for lesbian, gay, bisexual and transgender Californians,” said Geoff Kors, director of Equality California, the state’s largest gay-rights group, last week.
In 2005, Schwarzenegger vetoed a bill approved by the Legislature that would have legalized same-sex marriage. At the time, California had a law passed by voters in 2000 limiting marriage to a man and a woman. The governor said in his veto message he thought it was wrong for lawmakers to overturn a popular vote. He took the same position when the Legislature passed a second gay-marriage bill two years later.
In May 2008, the California Supreme Court overturned the 2000 law and same-sex couples were allowed to wed. But Prop. 8 overrode the court’s decision by amending the state Constitution.
Brown, the Democratic nominee seeking to replace Schwarzenegger when he is termed out of office this year, was more active than the governor in supporting the lawsuit that led Walker to invalidate Prop. 8, submitting legal papers calling the ban unconstitutional.
He also said last week it is time for gays to begin marrying again.
“While there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional,” Brown said in his legal filing.