Legal Commentary

Now that same-sex marriage in California is two weeks old this might be a good time to reflect on how the initiative fight is going to shape up.  One of the most interesting things to me about the first few days of same-sex marriage here was the character of the coverage by radio and TV.  Time and time again newscasters and reporters fell into colloquial descriptions of marriage -- "tying the knot," "getting hitched," etc.  This seems significant to me because it put a fundamentally positive spin on the marriages.  Of course there were other reasons for the favorable coverage.  Gay rights groups carefully managed the first few marriage ceremonies, such as the now-famous one in San Francisco between two older women who have been in a relationship for over fifty years.  More generally gay couples getting married during the early days seemed to have understood the importance and seriousness of the occasion, not just for them but as a matter of public discourse.  And of course the media might simply have been biased in their favor to begin with.

For my purposes now, though, what seems significant is that the very act of getting married is looked upon so positively that watching pairs of adults do it on TV is bound to make people sympathetic.  After all, who looks at a marriage ceremony and scowls at the couple?  So I suspect it was natural for reporters to slip into a more favorable, or even celebratory, frame of mind when covering the story.

This matters because it suggests that the anti-marriage rights forces were probably right to lay low during the initial period, for fear of seeming petty.  Indeed, the L.A. Times quoted one marriage-rights opponent to the effect that his side was letting gay couples "have their day" before beginning their campaign.  But what do people's fundamentally positive reaction to two people getting married mean for the tack the anti-marriage rights forces will take during the fall campaign?

People intimately involved on the pro-marriage rights side of the debate have told me that they expect the other side to focus on the "judicial tyranny" angle more than simple opposition to same sex marriage.  Presumably, the argument would be that the state supreme court acted illegitimately when it reversed the people's decision from 2000, when Californians approved Proposition 22, the statewide initiative that defined marriage as between a man and a woman, and that the people need to respond to that usurpation of authority.  (Of course, one could argue that the initiative process is providing exactly that popular response to the court's action.  Thus, one could dislike what the court did but still consider the entire process to be working well, since indeed the people will get the final say on the issue.  But that's going beyond the point I'm trying to make here.) 

If same sex marriage ceremonies and couples continue to get the same kind of coverage they've gotten so far the other side is probably smart to seek to turn the debate away from individual couples, or even the idea of same-sex marriage, and toward this more process-based angle.  It will be interesting to see how the argument plays with the public.  Scholars have debated whether voters really care about structural issues such as federalism or whether they only care about substantive policy outcomes.  I'm not sure we'll get an answer from this particular campaign, since I'm sure there's a group of voters who oppose marriage rights regardless of which branch and which level of government proposes it; that group will vote for the proposition just because they want to prohibit same-sex marriage, and not because they want to reassert popular control over issues such as marriage rights.  But presumably the forces pushing the proposition will do polling; it will be interesting to see if they stick with this anti-court theme or switch gears at some point and start focusing instead on the underlying substantive issue.

Anyway, that's it for my summer blogging stint.  Thanks as always to Dan for the opportunity, and to those of you who took the time to read (and even respond) this past month.