Arnold And Jerry Do The Right Thing

On the heels of the Prop 8 ruling in California, Gov. Schwarzenegger and AG (and Dem candidate for Arnold's job) Jerry Brown are working together to convince Judge Walker to lift his stay next week and allow the state to resume gay marriages.

In an extraordinary court filing, Gov. Arnold Schwarzenegger asked Friday that gay marriages be allowed to resume immediately in California after a federal ruling that the state's voter-approved ban on gay marriage is unconstitutional.

The Republican governor filed his brief with U.S. District Court Judge Vaughn R. Walker before a Friday deadline to submit arguments on whether to continue a stay of Walker's decision against Proposition 8.

"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," wrote Kenneth C. Mennemeier, an attorney representing Schwarzenegger, in the brief. "Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect." 

And that's really the basis of it.  Jerry Brown also filed a similar motion on Friday.  The state hasn't even bothered to try to defend the case, actually.  James Joyner at OTB disagrees however.

This is indeed extraordinary. Schwarzenegger is the representative of the people of California, a majority of whom voted to amend their constitution to reserve marriage to opposite sex couples.  So, it’s rather absurd to argue that “there is no public interest”   in upholding their decision.   Indeed, it’s his duty to stand up for their wishes here until the appeals have been exhausted.

Now, Schwarzenegger is sworn to “support and defend the Constitution of the United States and the Constitution of the State of California,” so one could argue that this is a higher duty if he feels strongly that the amendment violates the U.S. Constitution (by definition, it can’t violate California’s Constitution, since it’s an amendment to it).   But, if he thinks that, he should have joined the suit on the other side rather than remaining neutral.

That's a weak argument at best.  He's the Governor.  Who is he supposed to pass the buck to on this?  Again, if it's clearly a violation of the US Constitution, then Arnold is indeed well within his rights to do exactly what he did.

The Legislative, Executive, and Judicial in California have all come out for treating marriage as a fundamental right that cannot be abridged by any power, even a referendum.  That's in the Constitution, and it wins the argument.  Period.