Courts Taint Gay Marriage Victory

GENERIC: Gay Marriage, Homosexual, Flag, Lesbian AP

This column was written by Josh Patashnik.

The California Supreme Court, as you've probably heard, ruled 4-3 today that the California Constitution provides gays the lesbians the right to marry. The main question, of course, is whether the ruling is correct as a matter of law, but let's leave that aside for now (I can't claim much familiarity with the mess that is the California Constitution - more on this later). It's hard to say what the political fallout from the decision will be - I've never been of the opinion that the Massachusetts ruling had much of an impact on the 2004 race, but I suppose we'll soon get another data point in that debate.

As a Californian I'm quite pleased that my state now recognizes gay marriages. My instinct, though, is still that this is a lost opportunity. The state legislature has passed gay-marriage legislation twice before, and sooner or later it almost certainly would have been signed, either by Arnold Schwarzenegger or by the next governor. It would have been preferable, I think, for this to have been done through the elected branches first. That said, the question will ultimately be decided at the ballot box, and rightly so. Social conservatives are trying to place a constitutional amendment on this November's ballot that would outlaw gay marriage; they've probably gathered enough valid signatures to do so, but if the amendment doesn't make it on the ballot this year, it will in 2010. So if gay marriage in the Golden State is to endure, it will have to do so with the approval of a majority of voters eventually. (Schwarzenegger, for what it's worth, says he respects the ruling and opposes the ballot initiative to ban gay marriage.)

My fear is that the judicial involvement here will always taint a victory that might otherwise have been achieved through democratic means. Then again, the outcome of the initiative is very much up in the air, and it's possible that there's a non-trivial number of voters who would have been inclined to vote against gay marriage but will now be reluctant to nullify marriages that have already taken place.

One complicating factor is how absurdly easy it is to amend the California Constitution: You just need to collect signatures (from enough voters to account for 8 percent of the total votes cast in the last gubernatorial election) and win a simple majority vote - which explains why the state constitution is so cluttered with junk. One might very well ask what the point is of having a constitution that can be amended at will by a simple majority of voters, but the upside, I suppose, is that if they lose this November, proponents of gay marriage can just wait a few years until the generational demographics of the state become a little more favorable and try again. My guess is that gay-marriage opponents, who managed to push through an initiative statute that banned gay marriage in 2000 (it passed with 63 percent of the vote), are wishing they'd gone for the whole shebang and passed a constitutional amendment (rather than just a statute) when they had the chance.

Update: To clarify, had the gay-marriage bill passed by the legislature been signed by Schwarzenegger, it probably would have been struck down by the courts - in California, a ballot-initiative statute can only be overturned by another ballot initiative, not by the legislature, unless (as in this case) it ends up being unconstitutional. But it would have looked far different had the Court issued this ruling after both elected branches had given gay marriage the stamp of approval.
By Josh Patashnik
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