There is the rewriting of history, there are lies, and then there is what Sen. Mark Leno tried to pull off last week – trying to blame someone for doing the opposite of what he actually did.
Leno’s subject was same-sex marriage, and Leno’s target was Arnold Schwarzenegger. The former governor is an easy target these days, given his unpopularity with the public, California media, leading state politicians, and even friends and family. But Leno, in blaming Schwarzenegger for the passage of Prop 8 and the state’s too-slow path to marriage equality, not only got history wrong, he got it backwards. Leno’s criticism does a disservice not only to Schwarzenegger but also to public understanding of what’s wrong with California’s system.
Leno’s charge was that “history could potentially remember Arnold Schwarzenegger as the George Wallace of California social history” because Schwarzenegger vetoed two bills to legalize same-sex marriage in the years before Prop 8’s passage.
Schwarzenegger vetoed those bills, but that’s not the whole story. The key missing plot point is: previous to those vetoes, Californians had passed Prop 22 – a statutory ban on same-sex marriage.
The passage of the initiative is critical, because in California, an initiative statute cannot be changed except by another vote of the people. In any other state, Leno would be right that Schwarzenegger’s vetoes had blocked same-sex marriage. But in California, the bills Schwarzenegger vetoed would not have had the power to reverse the voter-approved ban and legalize same-sex marriage.
In fact, it’s likely that if Schwarzenegger had signed the bills, it would have been a big setback for same-sex marriage.
Those bills would have been challenged in court – in a context unfavorable to the cause of same-sex marriage. Instead of a clear challenge to the constitutionality of the ban, courts would have been considering a challenge to the new laws permitting same-sex marriage – on the grounds that those laws violated the state constitution by overturning an initiative without public vote.
These laws legalizing same-sex marriage, if Schwarzenegger had signed them, would have been struck down by the courts because they ran afoul of the constitution on initiative. This wouldn’t have been a close call. And it would have been a big defeat; it’s something that the Democrats, including Leno, should have foreseen. Indeed, it could be argued that the Democrats, in passing the bill, seemed to be putting their own desire to look good to supporters above the good of the cause itself.
Schwarzenegger’s vetoes thus served the cause of same-sex marriage – and saved the cause’s supporters from a self-inflicted defeat. And he kept the field clear for a direct legal challenge to the constitutionality of Prop 22. That challenge won, with the historic California Supreme Court decision in 2008 that legalized same-sex marriage, until Prop 8 overturned it.
Leno argued that Schwarzenegger, via the message sent by his vetoes, led to the defeat of Prop 8. But Schwarzenegger himself opposed Prop 8, publicly and forcefully. Prop 8 lost in large part because the yes side ran a very clever campaign, and the no side ran a truly terrible, confusing campaign, squandering the advantage of being on the no side of the question.
As a political and public matter, Schwarzenegger himself did no favors by being cagey on marriage equality. As a candidate, he used the “marriage is between a man and a woman” dodge. Then, early in his governorship, he said he had no problem with same-sex marriage, but then he objected to San Francisco Mayor Gavin Newsom’s civil disobedience on same-sex marriage. He also avoided the issue many times when asked about it in public, and even privately; it was not a discussion he courted. Schwarzenegger’s frequent response to social issues was to change the subject to the budget and political reform.
But when faced with questions and bills on LGBT rights, his actions and bill signings spoke consistently in favor of those rights. His vetoes of the same-sex marriage bills were in fact consistent with his pro-LGBT rights record. Democrats and others will read that sentence and protest: c’mon, that doesn’t make any sense. But they’re missing the point that California’s initiative process and governing system don’t make any sense.
Instead of blaming Schwarzenegger, whose only crime on the subject was to save same-sex marriage from its supporters, they should thank him – and get busy on fixing the broken California system that forced a governor to veto marriage equality in order to save it.