Starting June 16, 2008 (at 5 pm to be precise), same-sex couples will be able to get married in California. This became clear after the California Supreme Court's June 5th refusal to grant a stay of its May 15, 2008 decision legalizing same-sex marriage. The chance for same-sex couples across America to get married in California may, however, be short-lived, as a group opposed to such marriages has placed a referendum on the November ballot in California which, if passed, would instantly amend that state's constitution to define marriage as between one man and one woman. I predict this anti-gay marriage initiative will fail, in part because it will be preceded by almost five months of same-sex marriages in California.
In 2000, 61% of California voters approved a law that defined marriage as between one man and one woman. On May 15, 2008, the California Supreme Court struck down the 2000 law and opened marriage to same-sex couples. This added fuel to the attempt by opponents of same-sex marriage to amend California's constitution. If the prohibition on same-sex marriage becomes part of the state constitution, then the result of the court's May 15th decision would be democratically overridden and that would be the end of same-sex marriages in California. (For a technical point on this legal situation, see the end of this post.)
I am optimistic that California voters won't approve this anti-gay marriage amendment. Look at what happened to previous attempts to get rid of legal recognition for same-sex relationships in Vermont and Massachusetts. In 2000, when Vermont created civil unions, which afford same-sex couples all the rights and benefits associated with marriage in that state, opponents of same-sex marriage vowed to fight civil unions by amending the state constitution. That attempt failed. Since 2004, when Massachusetts legalized same-sex marriage, several similar attempts to amend the Massachusetts constitution also failed. These attempts to overturn legal recognition for same-sex marriages failed in part because people in those states got used to seeing same-sex relationships being legally recognized and because they might have thought it unfair to annul already legally established relationships.
I suspect that a similar effect will occur in California. Between June 16 and November 4, Californians will see their neighbors, co-workers, and other folks getting married to people of the same sex and they will more likely be moved than repulsed. Californians will see that hell has not frozen over and that neither marriages nor the institution of marriage has been undermined.
Much has changed since the last referendum about same-sex marriage in California. Since 2000, the California legislature has twice passed a law to legalize same-sex marriage (although the governor did not sign it either time). Also, several more states and various countries have given full legal recognition to same-sex couples. True, a majority of California voters in the March 2000 primary were opposed to same-sex marriage, but only 19% of California residents voted in that election; many more are likely to vote this November in the general election with the presidency at stake, among them many who were too young to vote in 2000. These younger people are, in general, much more sympathetic to gay rights than older voters.
While it is possible that gay marriage in California will be promptly ended by voter referendum, I predict that the majority of Californians will vote against the proposed constitutional amendment and that same-sex marriages will continue beyond November 4th. Attitudes towards gay people and gay relationships have improved markedly in eight years. Also, at least some Californians may realize that amending a constitution is more profound than passing a law. Robust legal recognition for same-sex couples has occurred at a much faster pace than people expected. This is due, in part, to Americans getting used to same-sex relationships socially, legally, and in popular culture. Although there will no doubt be setbacks, I expect this trend will continue, both in California in November, and throughout the country in the years to come.
Above, I said that if California votes to amend the state constitution to define marriage as between one man and one woman, then the result of the recent California Supreme Court decision would be overridden. While the result may be reversed, many of the decision's important legal conclusions would stand. In particular, the court in its May 15th decision, held that all laws (not just those related to marriage) that discriminate on the basis of sexual orientation are subject to the most exacting standard of judicial skepticism, what lawyers call "strict scrutiny." In California, laws that make use of sexual-orientation classifications will, henceforth, be treated like laws that make use of race, ethnic, or sex classifications, namely courts will demand an especially strong justification for any laws that involve sexual-orientation classifications. Whatever happens with respect to marriage in California, this is an incredibly important step for LGBT civil rights.
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