Legal Commentary

Over the last year the same-sex marriage movement has had as many ups and downs as ... well, a marriage.  As I've blogged about in the past, the passage of Proposition 8 in California last November was a bitter defeat for pro-marriage rights forces, especially those, like me, with a personal stake in the outcome.  Since then, though, decisions in Iowa, Vermont, Maine and, apparently, New Hampshire have provided a string of wins for the pro-marriage rights forces.  By all accounts New York remains a close call.

So is it time to revisit the issue in California?  Marriage rights forces appear to be gearing up  for another go in California in 2010, assuming that the state supreme court upholds Proposition 8's constitutionality, as most legal commentators expect.  This time the tool is not a lawsuit but a referendum to overturn Prop 8.  There apparently is no restriction on the frequency with which a matter can be brought to voters via a referendum.  (Of course the last referendum opposed, rather than favored, marriage rights for same sex couples.)  As a former Californian this doesn't surprise me: a number of years ago I remember conflicting campaign finance referenda appearing on the very same ballot.  Compared to that, referenda on the same topic appearing on two consecutive ballots seems downright deliberative.

I have no great principled objection to sequential ballot initiatives, each aiming to undo the results of the prior one -- at least no more objection than to ballot initiatives generally.  But I do have some questions about the political smarts.  Up until a couple of months ago, I thought the pro-marriage forces were, frankly, making a foolish mistake by trying again so soon.  Part of me still feels that way.  Regardless of the shift in public opinion that may well be happening, I wonder if there exists, for want of a better term, an annoyance effect, whereby voters who might be willing to support marriage rights will vote no, or abstain, or just not show up at the polls, based on the alacrity with which pro-marriage forces are asking the people to revisit the issue.  I have no evidence for this, but I can see some live-and-let-live types who aren't personally invested in this issue expressing either some annoyance or maybe just some fatigue, and acting accordingly.  And let's not forget that the 53%-47% margin from last time, while not a blow-out, was not exactly a nail-biter, either.  A decent amount of ground will have to be made up for the pro-marriage rights forces to prevail.

On the other hand, maybe we really are witnessing a sea change in public opinion.  The Iowa decision, coming from a non-coastal or urban or particularly liberal state, was the start.  Since then, the cascade from New England may be making same-sex marriage a non-exotic proposition, in the same way that civil unions became the moderate position on the issue in the earlier part of the decade.  So maybe this is the right time.

One thing, though, is, I think, fairly clear.  The California push, assuming it gets on the ballot (which should not be too difficult) is a massive gamble.  I've got to believe that two consecutive losses will mean that same sex marriage doesn't come to the most populous state in the union for a decade or so.  A second loss would surely stall whatever momentum currently exists and may be generated from a win in New York.  (And a California loss on top of a New York loss would be devastating.)  Quite possibly it (or they) would impact the thinking of the federal courts if and when the matter comes to a federal constitutional head.  In sum, it's a high stakes game that apparently will be played out in an off-year election (how that fact matters is not at all clear to me).  Speaking for myself, I hope these people know what they're doing.