Why California's gay-marriage decision could be overturned by voters in November.

The law, lawyers, and the court.
May 15 2008 7:20 PM

Race to the Altar

California's gay couples should marry fast. Voters could overturn the Supreme Court ruling in November.

Read Slate's legal bloggers' reactions to the California same-sex marriage ruling on Convictions. Also in Slate,  Kenji Yoshino  calls the decision "revolutionary,"  Dahlia Lithwick explores which branch of California's government has been most "activist," and William Saletan  claims our bans on polygamy and incest, as well as homosexuality, are losing ground.

When the Supreme Judicial Court of Massachusetts opened the door to same-sex marriage in a decision five years ago, the smart money was on couples who moved fast. After the ruling went into effect in spring 2004, it seemed more than possible that the door would swing back shut on anyone who didn't hustle through it. At the time, voters in Massachusetts opposed gay marriage by a margin of 53 percent to 35 percent. Legislators vowed to scuttle the court's ruling by amending the state constitution.

But the backlash inside the state never came. Nationally, the Massachusetts ruling stoked fears of liberal judges run amok, bedeviled John Kerry in his presidential bid, and goosed Congress into threatening its own constitutional amendment to prohibit gay unions. But in Massachusetts, the polls flipped by March 2005: Fifty-six percent of voters in the state were now on the side of the gay couples, with only 37 percent still opposed, according to the Boston Globe. Legislators who'd started down the path of overturning the court's ruling found themselves unexpectedly blocked.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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The lesson that same-sex marriage proponents draw from Massachusetts is that once people see gay couples quietly going about their business, mowing their lawns and dropping their kids off at school, they learn to shrug. "The Sky Didn't Fall in Mass.," triumphantly declared a 2005 op-ed in USA Today. Yale law professor Kenji Yoshino (who also reacts to the new California ruling  in Slate) celebrated "the banalization of same-sex marriage" in the Village Voice. This would seem to bode well for the future of same-sex marriage in California: Save the date! Beach wedding under the palm trees! But will it really be that easy?

A key distinction between Massachusetts and California is the process by which each state allows its court ruling to be overturned. When Massachusetts Justice Margaret Marshall issued the court's same-sex marriage decision in Goodridge v. Department of Health, she gave the Legislature 180 days to respond. Lawmakers then asked the court whether they could authorize same-sex unions rather than marriages. The court said no. Only then did the Legislature start working on a constitutional amendment to stop gay marriage. And according to state law, lawmakers had to vote twice, both chambers together and in two separate years, to reject the court's ruling. And even then, they would succeed only in getting their state constitutional amendment on the state ballot, where voters would have had one more chance to save gay marriage.

The champagne and the marriage licenses began flowing in Massachusetts in May 2004, around the time the clock started on the complicated process to overturn the gay-marriage decision. The Legislature's first vote went against same-sex marriage—though for civil unions—by a bare majority, 105 votes to 92. No supporter of gay marriage lost his or her seat in the next election, according to Yale law professor William Eskridge. Opponents got nervous. So, they started down a different road: If they gathered enough signatures to get their amendment on the ballot, they'd need only 25 percent support from the Legislature at two constitutional conventions to put it to a statewide vote.

This meant more years and more marriage licenses—10,000-plus in the state. And time proved to be gay marriage's best friend. Plenty of signatures were collected, and on its first go-round, the amendment—anti-gay marriage, pro-civil union—won 62 of 200 votes in the Legislature—enough to make it past the 50-vote threshold. But when the Legislature took up the measure again in 2007, Democratic Gov. Deval Patrick lobbied hard against the amendment, and 17 lawmakers defected. To the surprise of the same-sex marriage opponents, their amendment couldn't even muster support from 25 percent of the Legislature and went down to defeat.

But the forces that protected the same-sex marriage ruling in Massachusetts—time, and a layered and intricate legislative process—don't apply in California. California voters can overturn the decision with a single vote. There is already an initiative on the November ballot that would amend the state constitution and scrap today's ruling: "Only marriage between a man and a woman is valid or recognized in California," it declares. There's a small chance of a flaw with the signatures needed to get the amendment on the ballot, one gay rights advocate told me today. But he acknowledged it was a slim one.

And so California is going to have a big gay-marriage fight in November. Gov. Arnold Schwarzenegger plans to stay out of it: "As I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling," he said in a statement issued today. Also in favor of the court's ruling, Eskridge points out, is the possibility that high turnout for Barack Obama will help pump up the number of pro-gay-marriage voters. Obama pulls in the youth vote, and young people poll far more strongly in favor of same-sex marriage than older people do. That's the optimistic scenario for gay-marriage supporters. The pessimistic one is that this ruling will hurt Democrats nationally in this presidential election just as the Massachusetts decision did in the last contest—and that it won't make it past infancy inside the state that gave birth to it, either. Massachusetts gave its gay-marriage ruling time to grow up a bit. The California craze for changing laws by ballot initiative won't.

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