Whither the Activist Judges?

The California Senate last week approved legislation that would legalize marriage between two consenting adults, regardless of gender. In passing the measure, the Senate became ...
by | September 5, 2005

Wedding_rings

The California Senate last week approved legislation that would legalize marriage between two consenting adults, regardless of gender. In passing the measure, the Senate became the first legislative body in the nation to approve a gay marriage statute without a court order.

The bill has a tough fight ahead, though. It passed by only the minimum number of votes in the Senate. And the Assembly, which adjourns for the year after this week, defeated the measure in June. Even if it passes that body, though, it looks like Gov. Schwarzenegger would veto it.

While the Senate approval itself is a milestone, what's really interesting here is the role of the judiciary. A Schwarzenegger spokeswoman says the governor thinks this is a question for judges to answer, and that it's up to the judicial system to determine the legality of gay marriage.

But isn't that exactly what opponents of gay marriage have been decrying in Massachusetts? The notion that a small group of "activist judges" imposed gay marriage against the will of the people? If Schwarzenegger does believe this is a question for the courts, that seems to place him at odds with national Republicans, who have been saying for a couple years now that this is an issue for state legislatures.

Zach Patton | Executive Editor | zpatton@governing.com