THE CALIFORNIA General Assembly last week became the first state legislature to allow same-sex marriages. In a close vote, it sent a historic bill to Gov. Arnold Schwarzenegger (R) that would go a step beyond the state's broad domestic partnership rights. Mr. Schwarzenegger promptly declared that he would veto the bill, so it won't become law. But the legislature's action is an important milestone. While the Massachusetts Supreme Judicial Court permitted same-sex marriage in that state and legislatures have created civil unions elsewhere, the vote is the first time that a state legislature has acted on its own to create marriage equality.
The importance of the California vote in the politics of same-sex marriage is hard to overstate. After the Massachusetts court ruling, opponents of same-sex marriage decried the court's willingness to make policy on contested social issues. Such questions, they argued, were the rightful province of legislatures, not courts. President Bush even pegged his disgraceful endorsement of a federal constitutional amendment banning gay marriage to the likelihood of "activist judges" depriving the people of democratic choice on the matter. The California legislature's decision gives the lie to the notion that only imperial judges would foist such a social policy on a state.
Only five years ago, voters in California overwhelmingly passed a ballot initiative to refuse recognition to same-sex marriages performed elsewhere. The recent legislative action reflects genuinely changed public sentiment; polls on the matter show voters evenly split.
In an ironic twist, Mr. Schwarzenegger is trying to punt the matter back to the courts, where challenges to current California law are pending. In announcing his decision to veto the bill, he suggested that the new law conflicts with the old initiative -- which would be unconstitutional -- and that "the matter should be determined not by legislative action . . . but by court decision or another vote of the people of our state."
The governor could not be more wrong. Legislation is actually the best way to move forward in this area. And further ballot initiatives that will attempt to write an exclusively heterosexual definition of marriage into the California constitution and, along the way, wipe out the state's progressive domestic partnership laws, are already in the works in any event. A lot of work remains to be done before marriage equality in California becomes a reality.
But the legislative action last week remains an important symbol -- at once a rebuke to those states that have reacted to the Massachusetts decision by writing discrimination into their fundamental laws and a gentle reminder to those who see hope for progress only in the courts that legislatures can still be engines for positive change.