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May 16, 2008

Will California Ban Gay Marriage?

posted by Josh Goodman

Yesterday's ruling by the California Supreme Court legalizing gay marriage was historic. In six months, it could be history.

That's because California is likely to vote this fall on a constitutional amendment to ban gay marriage. Supporters of the measure submitted 1.1 million signatures to the Secretary of State (they only needed about 700,000) and are awaiting confirmation that gay marriage will appear on the November ballot.

There are some good reasons to think the amendment will pass. In 2000, Californians gave 61% of the vote to an initiative to prohibit gay marriage -- that's the law that the court overturned yesterday. The new proposal is for a constitutional amendment, while the 2000 vote was on a mere statute, but voters probably won't think too much about that distinction.

What's more, gay marriage opponents have a near-perfect record in these fights. When states' electorates have voted on constitutional amendments to ban gay marriage, 26 out of 27 times they have passed. The only one that didn't was in Arizona, where the amendment also would have forbidden civil unions and domestic partnerships.

Of course, conservative states have been more likely to hold votes on gay marriage than liberal ones. But some fairly Democratic states, including Oregon, Wisconsin and Michigan, have approved gay marriage bans.

Plus, I wouldn't rule out the possibility that the court's decision ends up helping the amendment pass. Voters who are ambivalent on gay marriage might be pushed to support the amendment, if they believe the judiciary overstepped its bounds. (For that reason and others, I argued a couple of months ago that the gay rights movement might have been better off losing the California Supreme Court case.)

That said, there are also good reasons to think the amendment might fail, allowing gay marriage to continue.

Since that 2000 vote, sentiment in California has clearly shifted in favor of gay rights (it's also shifted nationwide to a greater or lesser extent depending on the state). Polls conducted in the past few years typically have shown that half or slightly less than half of Californians favor gay marriage. However, no one to my knowledge has conducted a poll this year on the topic.

The campaign against the amendment will also have bipartisan support. Most Democratic officeholders favor gay marriage, which is why the legislature twice sent Republican Gov. Arnold Schwarzenegger bills to allow same-sex couples to wed.

Schwarzenegger vetoed those bills (saying he was deferring to the court), but he has also pledged to oppose the constitutional ban, deeming it a "total waste of time." Ancillary question: Will this campaign further damage Schwarzenegger's standing with conservatives in his own party?

There's also a chance that the court's ruling, rather than galvanizing support for the ban, could actually work against it. Same-sex couples will be able to begin exchanging vows in a matter of weeks, meaning that voters would be overturning marriages that have already taken place. They may be squeamish about that.

If I had to guess, I'd say that the amendment fails and gay marriage stays on the books, but that's more of a hunch than anything else. I wouldn't put any money on it. That uncertainty -- combined with the implications for the presidential race, Schwarzenegger's legacy and the national gay rights movement -- should make the campaign fascinating to watch.



Some comments.

Actually, the amendment would NOT overturn the marriages that have taken place but would prevent news ones from happening. People will live through six months of gay marriages without the sky falling and those who are against it won't even be able to go back to the way it was anyway.

Secondly, while the idea the "judiciary stepped its bounds" is the spin by conservatives, most people here know the Legislature voted twice to allow gays and lesbians to marry and Gov Schwarzenegger vetoed those bills saying that he didn't necessarily disagree with them but he WANTED the Supreme Court to be the ones telling him what to do. In other words, this is not going against what elected officials wanted to do anyway. So that argument is going to be hard to push.

And finally I agree that CA are much more amenable to it now that they used to be and the bipartisan support is going to be hard to fight against. On top of that, high youth turnout thanks to BO and the fact gay rights groups have been preparing themselves for years for that battle royale and are extremely wealthy in SF probably means it will squeak by in the end.
I am pretty confident of it.

Jim C

Nice post Benjamin. I agree 100%, but there exists a strong possibility that a wedge issue like this one could just further fuel and damage Obama's chances in winning CA.

McCain's got some serious strengths (his maverick status, his independent/moderate appeal on nearly every social issues, his support from Schwarzenegger who is approved and liked by many residents and his support from Latinos in Southern California). With Obama on the ticket, CA is actually a swing state, one he'll likely win, but will cost him a great deal of $ in advertisements to achieve.

Now throw in this gay issue. Schwarzenegger will likely now sign into law if the current legislature sends him a bill a 3rd time before the general election in November since the Courts have now greenlighted AS's approval. If he does that, McCain could confirm that position since his official policy is: "Leave it up to the states." He personally opposes gay marriage, but he also opposes passing a Constitutional Amendment prohibiting it.

Obama instead, despite being the most liberal Senators, has said he opposes Same-Sex marriage and he has privately talked in bad taste of such relationships. This leaves him in a vulnerable position to getting any of the LGBT vote considering many LGBT voters are also very concerned about increased taxes, economic issues and have concentrated wealth.

Gays and lesbians could be the last voting bloc that actually puts CA into play, and without Obama winning CA, he's toast in the general election.

It will be interesting if which of these two candidates "switch" their stances on this issue. The one who does the most either way--either for it or against it--could become the next president simply due to that one action.


I agree that by the courts lifting the ban it could actually prove to hurt them later on in the year(s). To overturn a ban that citizens voted for is not the definition of a democracy. It was judges who disagreed with it for their own personal reasons. The ban was originally put in place for a reason. The majority of Californians agreed it not be allowed. To overturn that is a slap in the face to the Americans and Californians who so willingly trust this country and it's judges. Arnold has signed his name at the top of every conservatives crap list. It just goes to show that he stands on a platform that when things got tough.....he gave up on. That is definitely someone that I would like to be standing next to. I originally disagreed with a constitutional ban but at this point, there is no alternative. The court overstepped it's bounds by every means possible and in order to preserve what the people worked hard for and voted for, I will vote for the ban. This will and already has begun to backfire on the judicial system. They want to overturn our original vote with a middle finger pointed at us....well, you reap what sow and every person who disagrees will come out of the woodwork to make sure the original ban against same-sex marriage is brought back ten fold. Bring it on, we are always willing and ready for the fight.


Jim C,
There are a couple of things I'd like to point out. First, voters CAN be wrong, and have been wrong in the past when it came to questions of social and policy issues like this one. Tyranny of the majority? The justices of the court in CA made their decision comparing the law and the CA Constitution and saw the discrepancy, that is the whole point, that is the check in our system. As for the "slap in the face to Americans", you're right, it was for those voters to wake up and realize they are playing with peoples lives when they support discriminatory laws like Prop 22. I don't know if you're a CA resident, but if you are, and this Amendment is on the ballot, please remember that there are real families like yours, perhaps people in your family, real people affected by the decisions you participate in, and ultimately they, not you or the judicial system pay the price for it. Look into it before you rush to judge.


so will this go to the ballot ot not?
aronld was saying he wont let this happen.
so what can we do is just wait to see what happens in june?

Josh Goodman

Schwarzenegger opposes the constitutional amendment, but he has no power to prevent it from appearing on the ballot. If the Secretary of State declares that it received enough valid signatures, then California will vote on gay marriage in November.


I hate voter referendas. They've helped to implement some of the most regressive policies in the country. For direct democracy to work, a society needs to have educated citizens, and that's just not the reality in America today. Seventy-five percent of Americans cannot even locate Iraq on the map, only 10 percent can name at least one justice on the supreme court, and only five percent can name at least one signer of the Declaration of Independence. Why should we put vital concerns such as marriage equality the hands of ignoramuses?


The problem with this issue is that the court has overstepped its bounds, and has legislated from the bench twice in California. Remember, we voted for Proposition 187, denying social services to illegal aliens, yet San Francisco judges overturned it. The same has happened here, with San Francisco judges legislating from the bench by overturning Proposition 22, which passed as well. The big issue for liberals is that the whole referendum/ballot initiative process that we have in California was their idea. It is a liberal democratic method. They decided that they wanted to accept the "tyranny of the majority" that Joel speaks about, rather than following the example set by our Founding Fathers of an elected legislature which deliberates and debates the issues, providing a barrier between the "tyranny" and the creation of law. So, when the citizens of California follow the rules put in place by liberals by putting these initiatives on the ballot, and then vote them into law, it makes no sense that liberals themselves would overturn the decisions. It proves that they only support ballot initiatives when they are in their favor, and that is most definitely not democracy.

Now, on to the actual subject of gay marriage. The attempted hijacking by the minority of the term "marriage" from the majority violates the inclusion of customs and traditions as evidence in court. The "sacrament" of marriage between a man and women can be traced back through history for over 2000 years, and thus must be upheld. Homosexuals are concerned about their rights, yet they never stop and think about the rights of the heterosexual majority who has held and practiced man-woman marriage for thousands of years. To this end, their case is baseless. The proponents of man-woman marriage have thousands of years of claim to the term marriage, whereas homosexuals have about 30 years of history in this fight.

P.S. The constitutional amendment can apply to gay marriages that take place in the next 6 months if the wording of the amendment makes it retroactive. I haven't seen the bill, so I don't know what it says about that matter.

Fuzzy Bear

The issue here is "who is harmed by gay marriage". Answer: nobody. There are no victims. Other countries that have gay marriage have observed no social problems whatsoever. People complain when gays are promiscuous (as if heteros are not) then complain when gays want to legalize their relationships.

If marriage is indeed a religious sacrament, then the State has NO BUSINESS enforcing it according to religious beliefs. Why can't the State issue civil marriage licenses?

In addition, the most fervent supporters of "marriage protection" have been married several times, and the divorce rate hovers around 60%.

If people wnat to "protect" marriage, they need to begin with heterosexuals.

As far as "the voters rule", the majority in this country has supported slavery, disenfranchisement of women, etc --- we can't even pass an Equal Rights Amendment.

The ban on gay marriage is plain-old mean-spirited.

Fuzzy Bear

And another thing.

We live in a democracy, where the majority rules "with respect for the rights of the minority". Yes, hard to accept for some, but minorities have rights too. Equal rights.

This ban would completely obliterate any rights for the minority with respect to free association, and would not allow people to choose who they want as their legal life partner.

The more I think about this, the more I realize this is about excluding gays and lesbians from society by any means possible. Why stop with marriage; why not ban gays and lesbians from public employment, or housing?

Is this what America is about???


The "sacrament" of marriage between a man and women for 2000 years argument, as mentioned by Paul, is total crap. Because most people have just a scant (or no knowledge) of history, the Republicans play on this and make up stuff to serve their own ends and arguments. The junk they make up is then repeated over and over so often by oafs that it then becomes history! This 're-creating history' works because most people are ignorant of the past.

The worst is this 2000 year sacrament of marriage baloney. Marriage during the middle ages was by no means sacred. Even Charlemagne, who was seen as the finest Christian King, had four successive wives and five mistresses or concubines. The Pope and the Catholic Church were indifferent to Charlemagne's having multiple wives and even having mistresses while he was married, as people during the Middle Ages did NOT view and treat marriage as highly as we do today. So this knocks off 1,000 years off your 2,000 year crap.

And even during the Colonial period in America, most couples didn't even have a marriage license - they just got hooked when the minister finally arrived to town, waved his hands, and pronounced them married. I'd also like to add that during the 1800s, NYC had over a hundred brothels (an example that contradicts the conservative's fairy tale, false belief that American values and their treatment of marriage were so pure in the past)- a far cry from today when any such establishment would be quickly shut down. So this sacred marriage behavior, and treating marriage so sacred is just junk.

And how dare heterosexuals judge and talk about having sacred relationships when 51% of marriages end in divorce along with the rampant adultery taking place.

Lastly, your argument is like saying that just because people believed the world was flat for 2,000 years that somehow it makes it right and something to hold valuable. Sorry, that belief was never right, just as the false, fairy tale belief that marriage has been sacred for 2,000 years has never been right.

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