I found it to be very ironic that the news that Governor’s Schwarzenegger’s pick to replace retiring California Supreme Court Justice Ron George had officiated over a same sex marriage was tucked in a Los Angeles Times story (by Maura Dolan) with the innocuous headline, Chief Justice 
Nominee Avoids Hot-Button Issues. Appellate Court Justice Tani Cantil-Sakauye (pictured, right) actually, and probably unwittingly, has plowed robes-first into what a great many would consider to be California’s most high-profile “hot button issue” – gay marriage.
Californians are very polarized on this issue, which has been the subject of a couple of high-profile statewide votes. In a split decision, the very court to which Cantil-Sakauye has been nominated issued a 4-3 split decision, throwing out voter-approved Proposition 22 which placed a definition into statute of a marriage being between a man and a woman. Ron George, whom Cantil-Sakauye would be replacing, was a vote on the high court to overturn Proposition 22.
The voters came back and approved a ballot initiative, Proposition 8, to basically over-rule the Supreme Court an maintain the definition of marriage as being between a man and a woman. Once it passed, advocates for same sex marriage took that measure to court, where a judge is expected any day to rule as to whether Prop. 8 violates the federal constitution. It is presumed that no matter how the lower court rules, this matter will ultimately end up before the United States Supreme Court (where it is likely Justice Anthony Kennedy will decide the matter).
Hot button issue? What do think? Of course it is.
Here is the relevant excerpt from Dolan’s story in the Los Angeles Times:
"I perform hundreds of weddings, and they included one same-sex marriage," she said. She said she did not hesitate to marry the couple, whom she declined to describe, "because it was the law."
I know that it is the practice of those nominated to judicial positions to suddenly get all “vague” on public policy issues – hiding behind their candidacy for judicial office (or in the case of Cantil-Sakauye, she is also a sitting judge). But it seems to me that by officiating over a same sex marriage, we probably have an extremely good indicator about how she would rule on the issue were it to come before her as a Supreme Court Justice.
My logic is pretty simple – no one can compel a judge to conduct a wedding ceremony. That part of the portfolio for a judge is elective. It’s clear by Cantil-Sakauye’s performing the ceremony that she certainly does not have a moral objection to gay marriage, or she simply would have declined to do so. I am also betting that if she was fired-up steaming mad at the split-court decision to overturn Prop. 22, she similarly would not have been excited to perform such a ceremony.
I have a friend who is a surgeon, and he happens to be very much an advocate of the Right to Life. As such, he has made it clear to me that while performing surgery to abort a fetus is allowable (under board circumstances here in California), he would never do so. To quote him, “I could never live with myself.”
I bring up my friend the surgeon to emphasize an important point – which is that even though something may be legal, that doesn’t mean that it is something that you would choose to do.
Is it not particularly noteworthy or newsworthy that Governor Schwarzenegger would tap someone to replace Ron George that likely mirrors his view on the issue of the legality of same-sex marriage – after all, Schwarzenegger was pretty clear in his support for the Supreme Court decision, and his opposition to Proposition 8 which followed.
That said, because the Constitution affords the people of California an up-or-down vote on the nomination of a Supreme Court Justice, that means that you and I can certainly take Cantil-Sakauye’s willingness to officiate a gay marriage as a factor when we decide how to mark our ballots.
If, like me, you voted for Proposition 22 and Proposition 8, you have every reason to be very concerned about this pick for the Supreme Court’s top spot.
P.S. Advocates of gay marriage have figured out they have a winner. A website where a reference to Cantil-Sakauye’s officiating the gay marriage were hastily scrubbed within hours of her nomination…
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