June 2, 2005


Bid to let gays marry fails: Assembly bill falls short by six votes, but backers will seek reconsideration today. (Jim Sanders, 6/02/05, Sacramento Bee)

Legislation to make California the second state to permit gay marriage was rejected by the Assembly early today, marking the latest twist in a fiercely contested national movement.

The bill failed passage by six votes on its second roll call, shortly after midnight.

The final tally came nearly five hours after an initial vote that sparked a flurry of behind-the-scenes lobbying and arm-twisting but didn't change anyone's mind.

Assemblyman Mark Leno, a San Francisco Democrat who wrote the measure, AB 19, said it will be reconsidered today.

"I'd have loved to see it happen tonight – but it's not over until it's over," Leno said. The Assembly faces a Friday deadline for either rejecting or approving, then sending to the Senate, any bill written by its members.

Leno said the vote on AB 19 marked the first time a gay marriage bill has reached the floor of any state legislature without court action. Massachusetts legalized gay marriage last year but did so only after its Supreme Judicial Court ruled that failure to do so would violate state constitutional rights to equal protection.

Leno's hopes for passing AB 19 lie with Democrats who abstained from voting on the roll calls Wednesday and early today.

"It's a tenuous network of undecideds who need to simultaneously cast a vote," Leno said. "I think after a good night's sleep and further encouragements, I'm still hopeful that we can prevail."

The final tally on the gay marriage bill was 35 yes and 37 no. The bill needs six additional votes for passage.

Democrats, who control the Assembly, were split on the measure. Five Democrats voted against the bill, while one other Democrat was absent and seven did not cast ballots.

Republicans were united in opposing AB 19, arguing that state voters rejected gay marriage five years ago by passing Proposition 22, which said that "only marriage between a man and a woman is valid or recognized in California."

Why does the Left hate democracy so much?

Posted by Orrin Judd at June 2, 2005 4:35 PM

it rewards merit.

Posted by: cjm at June 2, 2005 4:39 PM

It rewards common sense.

Posted by: AllenS at June 2, 2005 6:17 PM

Rhetorical question, I presume.

Posted by: at June 2, 2005 6:24 PM

How European of them, keep on voting until they get the "right" result.

Posted by: Sandy P. at June 2, 2005 9:00 PM

Apparently, California Democrats are feeling their oats after handing the governor a couple of recent setbacks. But it's hard to see how pushing this vote multiple times is going to lay the groundwork for a successful 2006 election campaign.

Posted by: John at June 2, 2005 9:17 PM

I wonder if the Governator will sign it if it passes?

Posted by: Bret at June 2, 2005 9:19 PM

Didn't the california voters vote a marriage definition a couple of years ago? Can the legislature override a citizen vote that easily?

Posted by: Robert Schwartz at June 2, 2005 10:58 PM


According to this:

Leno's proposal is tricky enough as a political matter; but it is even more complicated legally. That is because one state statute in the family law code that currently rejects same-sex marriage was enacted by California voters themselves, as a so-called statutory initiative, in 2000.

Four years ago, the California electorate overwhelmingly -- by a majority of over 60% -- approved Proposition 22 (also called the Knight initiative, in reference to the Proposition's drafter, California Senator "Pete" Knight.) And here is the rub: Even though Proposition 22 took the form of a state statutory initiative, rather than a state constitutional amendment, the California constitution provides that the legislature cannot "amend or repeal an initiative statute by another statute" unless the amendment or repeal is "approved by" the state voters themselves.

In other words, a statutory initiative such as Proposition 22, like a state constitutional amendment, lies outside the control of the legislature to undo or modify. Assemblyman Leno's opponents charge him with ignoring this limitation on the legislature's power. They thus criticize his proposed bill not only as unwise and immoral, but also as unconstitutional under the state's highest law. What was done by state statutory initiative, they urge, can be undone only by state statutory initiative -- that is, directly by the voters and not by the legislature -- or by constitutional amendment.

Leno's Defense: Proposition 22 Deals Only With Out-of-State Marriages

Leno and his supporters have countered by arguing that Proposition 22, which rejects recognition of same-sex marriage, had nothing to do with same-sex marriage licenses California might want to issue. Instead, Proposition 22, they argue, was about whether California was going to recognize same-sex marriages performed in other states.

Put another way, Leno asserts that Proposition 22 rejected only the idea that California would respect same-sex marriages entered into in other jurisdictions - like Massachusetts and Hawaii - but did not address the question whether California itself would issue same-sex licenses to its own residents.

Leno bases his argument on the way Proposition 22 is codified, as a separate section of the family law code that seems to deal with out-of-state marriages; Leno finds significant that Proposition 22 is not codified in the sections of the family law code that deal directly with the issuance of licenses within the state of California. And he also points out that the debate and campaign literature surrounding Proposition 22 all focused on out-of-state same-sex marriages in particular.

Posted by: Bret at June 2, 2005 11:09 PM

Prop 22 was codified at family Code Sec. 308.5
Below is the whole dvision in which it was codified:

PART 1. VALIDITY OF MARRIAGE ..................................... 300-310

300. Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. ...

301. An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, ...

302. An unmarried male or female under the age of 18 years ...

303. If it appears to the satisfaction of the court by application of a minor ...

304. As part of the court order granting permission to marry under Section 302 or 303, ...

305. Consent to and solemnization of marriage may be proved under the same general rules of evidence as facts are proved in other cases.

306. Except as provided in Section 307, a marriage shall be licensed, solemnized, and authenticated, and the certificate of registry of marriage shall be returned as provided in this part.

307. This division, so far as it relates to the solemnizing of marriage, is not applicable to members of a particular religious society or denomination not having clergy ...

308. A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted
is valid in this state.

308.5. Only marriage between a man and a woman is valid or recognized in California.

309. If either party to a marriage denies the marriage ...

310. Marriage is dissolved only by ...

Posted by: Robert Schwartz at June 2, 2005 11:42 PM

There are no section titles, nor do section 308.5 and 300 appear in different divisions. i don't want to argue a case here because I do not know the minutiae of California legislative procedure, but it looks to me like Jay is talking through his hat.

Posted by: Robert Schwartz at June 2, 2005 11:50 PM

Seems rather clear doesn't it?

Well, if it passes and the governator signs (which I'll be surprised), it'll be challenged in court (I bet they get a quick injunction), and I think I've heard that there is another ballot initiative in the works to modify the CA constitution to ban gay marriage.

Posted by: Bret at June 2, 2005 11:52 PM

Why do I hate democracy so much? Probably for the same reason you still beat your wife.


Posted by: Noel Erinjeri at June 3, 2005 12:18 AM

OJ beats his wife b/c his ideas are unpopular and can only be implemented by judicial fiat. Who knew?

Posted by: Jim in Chicago at June 3, 2005 12:53 AM

New slogan for the DNC: It's not the people, stupid! It's the stupid people!

Posted by: Genecis at June 3, 2005 11:32 AM

genecis: that's pretty good :)

Posted by: cjm at June 3, 2005 1:09 PM