The Religious Freedom and Civil Marriage Protection Act: how Governor Schwarzenegger failed his constituents.

I. THE CASE FOR SAME-SEX MARRIAGE

In Loving v. Virginia, (1) the U.S. Supreme Court declared that marriage is a fundamental right worthy of equal protection and due process guarantees. (2) Americans must be able to choose whom they will marry without state interference. (3) Therefore, the Loving Court concluded, if a state imposes a burden on the ability of its citizens to marry, the state must have a compelling purpose enacted through the least restrictive means possible. (4) An outright ban on marriage to a specific class of persons, the Court held, is an illegitimate purpose for which no less restrictive means are possible, and is therefore unconstitutional. (5)

Unfortunately, the Loving principle has not attached to the right for same-sex couples to marry in the United States. In fact, according to a July 2005 survey by the Pew Forum and the Pew Research Center for the People & the Press, Americans oppose gay marriage 56% to 35%. (6) Acting in line with the American majority, California voters joined thirty-eight states (7) in 2000 when they enacted Proposition 22, a referendum limiting California's recognition of out-of-state marriages to only those marriages "between a man and a woman." (8) Proposition 22 was later codified as California Family Code [section] 308.5 and joined its sister provisions, [section][section] 300 through 302, which define California marriage as between people of the opposite sex. (9)

Five years after the enactment of Proposition 22, the California Legislature adopted the Religious Freedom and Civil Marriage Protection Act (RFCMPA), which upheld the principles set forth in Loving v. Virginia. (10) The RFCMPA overturned California Family Code [section][section] 300 through 302 by defining marriage as a relationship between two people. (11) For reasons explained later in this Note, the California Legislature deliberately did not overturn California Family Code [section] 308.5, or Proposition 22.

In addition to the California Legislature's enactment of the RFCMPA, in the 2005 case In re Coordination, the California Superior Court also determined that California's marriage statutes were not rationally related to a legitimate government purpose. (12) Like the antimiscegenation statute (prohibiting interracial marriage) at issue in Loving v. Virginia, California's marriage statutes denied marriage to a specific class of persons. (13) Because the state did not deny marriage licenses to heterosexual couples that could not further the state's asserted interests in procreation and marital sanctity, the state law was per se unconstitutional. (14)

Despite legislative and judicial support for the law, on Thursday, September 29, 2005, California Governor Arnold Schwarzenegger vetoed the RFCMPA. (15) Thirteen months later, the Court of Appeals of California overruled the trial court's invalidation of the California marriage statutes in In re Marriage Cases. (16) The court of appeals agreed with opponents to the ban on same-sex marriage and held that not only was the state's interest in the institution of marriage legitimate, but also "[c]ourts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage." (17)

The future of same-sex marriage is uncertain in California today, but this uncertainty is unnecessary because Governor Schwarzenegger erroneously vetoed the RFCMPA. This Note will first explain the details and complexities of California's situation regarding its restrictive marriage statutes. It will then explain why and how Governor Schwarzenegger could have invalidated California's restrictive marriage law by exercising his inherent gubernatorial power, thereby protecting the rights of same-sex couples in California without the need for judicial intervention. This Note will then address the ways in which referendum law has changed the face of California civil rights law. (18) Notably, the California people continue to play a substantial role in the limitations on same-sex marriage, (19) despite the judiciary's historical invalidation of discriminatory initiatives. (20) Finally, this Note will explain why Governor Schwarzenegger failed his constituents when he vetoed the RFCMPA in light of the legislature's intent, the preceding Coordination decision, comparable jurisdictions invalidating similar limiting referendums, and the limitations imposed by the state and Federal Equal Protection Clauses. (21)

II. THE CALIFORNIA SITUATION: PROPOSITION 22, IN RE COORDINATION, AND THE RFCMPA

The California same-sex marriage ban presents several complicated questions. An explanation of the chronology of events, the constitutional history of Proposition 22, or California Family Code [section] 308.5, and Governor Schwarzenegger's executive powers are necessary to understand why Governor Schwarzenegger failed his constituents when he vetoed the RFCMPA.

On September 29, 2005, Governor Schwarzenegger vetoed the Religious Freedom and Civil Marriage Protection Act. (22) As stated earlier, the RFCMPA defined California marriage as a union between two people rather than one between a man and a woman. (23) Just twenty-three days before the veto, the California Senate approved the RFCMPA pursuant to its interpretation of the guarantees of the U.S. Constitution's First Amendment Freedom of Religion Clause. (24) More specifically, the California Senate stated its intent to "correct the constitutional infirmities of the marriage laws," which involved the elimination of gender-specific language in California Family Code [section][section] 300 through 302. (25) Sections 300 through 302 specify the marriage relationship as only between a man and a woman and are meant to "uniformly den[y] marriage licenses to same sex couples." (26) The senate further clarified, however, that the RFCMPA "was not intended to alter or amend the prohibition in [section] 308.5 against recognizing same-sex marriages entered outside California." (27) This proclamation was in response to potential ambiguity in the legislative intent that the RFCMPA could have been interpreted as overturning Proposition 22 without the people's permission. (28) Because Proposition 22 was enacted by the people's exercise of their referendum power, the California Legislature cannot overturn or amend Proposition 22. With the enactment of the RFCMPA, the California Senate became the first legislative body in America to adopt a provision approving same-sex marriage absent a court order demanding that it do so. (29)

Citing adherence to the people's referendum power, Governor Schwarzenegger erroneously ignored the legislature's stated intent and vetoed the RFCMPA. (30) In rationalizing the veto, Governor Schwarzenegger asserted his belief that the people or the courts of California should be the only authorities to change the existing definition of marriage because the people had enacted Proposition 22 with their referendum power. (31) Governor Schwarzenegger's call for judicial intervention, however, had already been answered. Seven months earlier, in In re Coordination, the Superior Court in San Francisco County held Family Code [section][section] 300 through 302 and [section] 308.5 unconstitutional because they violated the Equal Protection Clause of the California Constitution. (32) When Governor Schwarzenegger vetoed the RFCMPA, critics everywhere alleged that he simply promoted judicial activism, when the role of the courts should be to interpret the law, not to change it. (33) The California Legislature, as well as the California courts, found [section][section] 300 through 302 unconstitutional. Furthermore, the legislature expressly refused to alter [section] 308.5. Accordingly, Governor Schwarzenegger, in relying on the people's referendum power, erroneously vetoed the RFCMPA and ultimately failed his constituents.

A. Background Information About Family Code [section] 308.5

The constitutionality of referendum law in general has fostered much debate in both academic and political communities. (34) Despite criticism, California has recognized and fully embraced public initiatives since 1911. (35) Proposition 22 passed voter scrutiny in 2000 and has played a controversial role in the legal arena since being codified under California Family Code [section] 308.5. (36) The referendum and its sister provisions, Family Code [section][section] 300 through 302, survived two constitutional challenges before the court finally addressed constitutional questions in In re Coordination. (37)

1. Constitutional History of the California Referendum

As stated earlier, Californians have been voting on initiative, referendum, and recall amendments since February 20, 1911, when the legislature approved Constitutional Amendment No. 22. (38) The Amendment notes:

 
  The legislative power of this state shall be vested in a senate and 
  assembly which shall be designated "The legislature of the State of 
  California," but the people reserve to themselves the power to propose 
  laws and amendments to the constitution, and to adopt or reject the 
  same, at the polls independent of the legislature, and also reserve 
  the power, at their own option, to so adopt or reject any act, or 
  section or part of any act, passed by the legislature.(39) 

A California initiative needs eight percent of the electoral population's signatures to be submitted directly to the electors on the next ballot. (40) For the California Legislature to submit a referendum for the people's approval on the next election ballot, the referendum needs only five percent of voter signatures. (41) After the California electorate approves the initiatives or referendums, "[n]o act, law or amendment to the constitution, initiated or adopted by the people, shall be subject to the veto power of the governor." (42) Only a majority vote by the electorate can repeal or amend an initiative. (43)

California civil rights history owes several limitations and expansions to public …