Dear Governor Schwarzenegger –
As you approach the deadline for acting on legislation from this fiscal year, I thought I might help out by writing a message for you to use in relation to AB 43, the Religious Freedom and Civil Marriage Protection Act.
I was careful to address your objections in the past as well as the ultimate issue of using mere laws – even voter initiatives – to override the Constitution.
My fellow Californians.
I said that I would veto AB 43 because I believe the courts and the people should decide the fate of marriage in this state. I also said that lesbian and gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationships. Up to now, I had seen these as being in contradiction to each other, but I have come to realize that it is not possible to treat these couples fairly while blocking them from marriage.
The people have made it clear through their elected representatives and the State Constitution that they do not tolerate discrimination in any form. Statutes passed by the legislature and even by voter initiatives are not able to create discrimination without changing the Constitution.
I also said that I would veto AB 43 because I lacked the authority to reverse an initiative approved by the people of California. I am not seeking that authority because I do not intend to reverse an initiative statute.
The initiative statute passed by the voters as Proposition 22 in 2000 enacted California Family Code Section 308.5 relating to marriages performed in other jurisdictions. It did not change the Constitution.
AB 43 changes Sections 300 and 302 of the California Family Code to say that a marriage is a contractual relationship between two persons. This is the original language of the Family Code prior to a legislative statute passed in 1977. It makes no changes to the implementation or enforcement of section 308.5.
AB 43 also provides for the free exercise of religion by institutions who believe in performing marriages of same-sex couples. Article I, section 4 of the California Constitution guarantees free exercise and enjoyment of religion without discrimination or preference, and as I explained earlier, Proposition 22 did not amend the Constitution.
Structures such as Domestic Partnerships and Civil Unions, which I have supported in the past, are undermining marriage by providing a way for couples to cohabitate without making the commitment of marriage. Proposition 22 was passed to defend marriage as an institution, not to defend it against some kind of invader. We can not protect marriage by excluding people who want to support it, or by creating imaginary enemies to keep out. These tactics divide us and weaken our ability to face the real problem. The best way to follow the intent of Proposition 22 is to provide one set of laws governing relationships in this state and providing universal access to them.
The courts and the people will have their say. The issue regarding the constitutionality of section 308.5 and its prohibition against recognizing same-sex marriages performed elsewhere is currently before the Court of Appeal in San Francisco and will likely be decided by the Supreme Court. Likewise, if the people want to exclude certain families from the security of marriage, they will need to pass a Constitutional amendment to do that. In the meantime, it is wrong to deny any citizen the freedom to marry, and just as wrong for me to block this bill.
I intend to uphold the Constitution of this state and the will of the people as expressed through their elected representatives by signing this bill into law.
The tide is turning, Governor. Do you want to be on the side supporting love, or the side supporting hate? Please sign AB 43 and support the freedom to marry.