The California legislature became the first elected body in the US to approve gay marriage, passing the bill in the Assembly 41-35 and setting up a conundrum for Governor Arnold Schwarzenegger. The bill defies a vote from five years ago, when Californians overwhelmingly voted to approve a measure which specified that marriage should remain between one man and one woman:

The bill's supporters compared the legislation to earlier civil rights campaigns, including efforts to eradicate slavery and give women the right to vote.

"Do what we know is in our hearts," said the bill's sponsor, San Francisco Democrat Mark Leno. "Make sure all California families will have the same protection under the law." ...

But opponents repeatedly cited the public's vote five years ago to approve Proposition 22, an initiative put on the ballot by gay marriage opponents to keep California from recognizing same-sex marriages performed in other states or countries.

"History will record that you betrayed your constituents and their moral and ethical values," said Republican Assemblyman Jay La Suer.

I have never opposed gay civil marriage as long as it came as a result of a democratic process, and this qualifies. The notion of the state acting as a defense of a spiritual definition of marriage doesn't make for sound government nor sound spirituality, in my opinion. The facade of government protection for traditional marriage ended with no-fault divorce, which made a marriage contract the only legal instrument that one party could abrogate without fear of penalty. Legalizing civil unions as an alternative only duplicates civil marriages and creates nothing but a plethora of new regulation, and in the end we get the same result.

The politics of this effort are more fascinating than the issue itself. Despite the historic nature of the legislature's actions, its constituents have hardly pressed for this bill. Five years ago, Californians passed Proposition 22 by a whopping 23-point margin in a primary election that saw George Bush and Al Gore handily win their races in the Golden State. Ironically, one anti-22 campaigner blamed a high turnout for John McCain as the reason for the measure's victory at the time:

"I think it's sad," said Democratic activist Howard Welinsky. "The McCain campaign probably brought out more conservative voters, and helped create the lopsided result."

Passing this bill in the face of voter antipathy would normally presage an overwhelming reaction from the electorate in the next cycle, but the term-limited legislature knows better. Their seats have almost no real competition, thanks to decades of gerrymandering by previous legislatures. The politicians in Sacramento can act with impunity, and they know it. They risk nothing, not even a couple of seats, by thumbing their noses at their constituents like this. This triumph of the political class shows just how bad the autocracy has become in California.

Schwarzenegger has much more vulnerability than legislators, and right now his sinking poll numbers have many questioning whether he will run again. It would seem that in order to have any credible chance at re-election, the Governator would have to veto this bill, although he has claimed in the past not to oppose to gay marriage. If he vetoes it and still loses, good luck falling back on the Hollywood career. If he signs the bill into law, good luck getting back onto the stage for upcoming Republican conventions.

Even if Arnold signs the bill, the referendum process will immediately kick into high gear in California. The voters have the final word on issues, thanks to their ability to pass law directly, making end-runs around the legislature and the executive on a regular basis. Expect to see a Constitutional amendment banning gender-neutral marriage on California's ballot by November 2006.

At that time, Californians might ask themselves why they bother with a legislature at all. Clearly the people's branch of government has ceased representing the people in the country's most populous state. Will Californians finally demand sane reapportionment that creates actual competitive elections, or continue the disconnect between their representatives and their politics?

UPDATE: XRLQ has more, including some question as to the legality of the process used by both the California legislature and Prop. 22 itself.

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