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Tilting at Windmills

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May 14, 2008
By: Kevin Drum

SAME SEX MARRIAGE IN THE GOLDEN STATE....Via Andrew Sullivan, the California Supreme Court will announce its decision on whether to legalize same-sex marriage on Thursday at 10 am:

No one knows for sure what the decision will be — but, given the length of time this has taken, it's perfectly possible the court will order civil marriage equality immediately without a stay. That would lead to thousands of irrevocable civil marriages and set up a ballot initiative this fall as a potential watershed for civil rights.

Those in favor of civil equality better get ready. The gay civil rights movement will never have waged a battle this big, this expensive or this important. We can win at the ballot box as well as in the courts and legislatures. And the good news is that the Republican governor has said he will oppose any initiative to take marriage rights away, if they are granted. Hold on tight.

I think it's widely expected that the court is going to legalize gay marriage, and the initiative to strike down their ruling has already gathered over a million signatures and is just waiting for verification from the Secretary of State before it goes on the November ballot. It's 14 words long, identical to the wording of Prop 22 back in 2000: "Only marriage between a man and a woman is valid or recognized in California." This time, however, it's a constitutional initiative, not a statutory initiative, so if it passes it will be immune to court challenges.

Prop 22 passed overwhelmingly with 63% of the vote. Has 13% of the state decided to relax since then and allow gay couples to live in peace? We're about to find out.

Kevin Drum 6:55 PM Permalink | Trackbacks | Comments (39)

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What a gift to the GOP this would be. They'd love to have the national spotlight back on gay marriage rather than Iraq, the economy, energy, corruption, torture, etc.

Posted by: wahoofive on May 14, 2008 at 7:02 PM | PERMALINK

Is that one man and one woman? At a time?

Posted by: Tigershark on May 14, 2008 at 7:02 PM | PERMALINK

California is a beautiful land-- so do you think George Bush / Karl Rove / John McCain will pull up stakes and leave his wife? Remember, Jeff Gannon was probably hooking up with someone... And John McCain has that womanly thing going on-- you know he doesn't just settle for females.

Posted by: Swan on May 14, 2008 at 7:06 PM | PERMALINK

My friend’s three year old daughter, on a recent trip to DisneyWorld, was asked where she lives. She responded,

"I live in California. We're from a different planet."

Having lived in NorCal my whole life, I usually think this is true of the rest of the country (or at least portions of it). Still, it seems to me that people here have become more, not less uptight -- different planet or no.

Posted by: e henry thripshaw on May 14, 2008 at 7:11 PM | PERMALINK

Wait ... a Constitutional Initiative requires only 50% approval for passage? Really? Are you sure, or am I reading your assertion wrong?

I'd assumed that the threshold for a constitutional initiative in CA would be 67% approval. 50% seems a really low bar.

Posted by: Tom Dibble on May 14, 2008 at 7:23 PM | PERMALINK

It's still the same awful, ambiguous wording as Prop 22. Clearly, it cannot mean what it literally says, which is that the only thing that is valid or recognized in California is marriage between a man and a woman. CA can't recognize contracts between a company and an individual, it can't recognize adoptions of foreign children, it can't recognize that it's time to change the oil on your car.

Even if we're charitable to the writers of the proposition, a visitor from another time and place, who had no knowledge of the salience of same-sex marriage in contemporary American politics, would likely interpret the sentence to mean that marriage is the only thing/contract/agreement/association legally recognized between a man and a woman in California. Even with a little time- and place-specific knowledge, it might mean that domestic partnerships between different-sex couples are invalid, which could make some sort of sense given the push in some states for "covenant marriages" which are harder to get out of than standard marriages.

If you adhere to Strunk and White's guidelines, the word "only" belongs next to, and usually in front of, the phrase it's intended to modify, which in this case is clearly "between a man and a woman". Even if you don't like S&W, it's still far less ambiguous to write, "Only between a man and a woman is marriage valid or recognized in California."

Posted by: jason on May 14, 2008 at 7:26 PM | PERMALINK

Ditto what Tom said - wtf? The growing California Clusterfuck makes a lot more sense if 50%+1 is all it takes to rewrite the friggin' constitution.

Posted by: scarshapedstar on May 14, 2008 at 7:27 PM | PERMALINK

Ditto, ditto, tom and scarshapedstar! Please please please tell me you can't pass an amendment to the state constitution the same way you can pass any old lame ass proposition! Expecting CA voters to okay gay marriage by 50% would be like expecting the deep south to have voted for integration in 1955. Unless Barack Obama turns out WAY MORE of the youth vote than even I think he can, if it's 50% to pass a constitutional amendment, we're completely effed.

Posted by: CaliforniaDrySherry on May 14, 2008 at 7:39 PM | PERMALINK

This is probably a good wake-up call for Democrats in all of the other 49 states to take a hard look at their ballots and see what poison pills the Republicans have put on there to get higher turn-out. They won in 2004 by putting anti-gay-marriage initiatives on every ballot they could, and that's how they squeaked out their victory for Bush.

Find those poison pill voter initiatives now and start working to neutralize them. November will be too late.

Posted by: Mnemosyne on May 14, 2008 at 7:46 PM | PERMALINK

If that amendment passes as written, California's trial lawyers will once again be able to afford their mortgages. Does "man" refer only to a phenotypic male or a genotypic male? Transgendered? Peri- or only post-surgery? Can a genotypic male with androgen insensitivity syndrome whose external appearance is female marry a man or a woman?

Despite the great desire of conservatives to limit all of life to black and white, nature is millions of shades of gray. Legislation won't change that.

Posted by: greennotGreen on May 14, 2008 at 7:48 PM | PERMALINK

Yeah, 50% + 1 is pretty common for voter approval of constitution amendments. That's why we have so many damned constitutional amendment initiatives here in Michigan; the signature requirement isn't too much more onerous than for a law, and they still need only 50% + 1 to pass the thing.

By the way, speaking of Michigan, our marriage proposition passed with 58.6% in 2004 (and I recall Oregon's was about 58% in the same year). I kind of think California would have been less favorable than these two (and Arizona turned down a marriage amendment either in '04 or '06), so I suppose there's a shot at upholding a Supreme Court decision in CA this year. Not only are some people becoming more relaxed, but the most anti-gay age cohort is dying off because they're, well, old.

But yeah, I really wish this wasn't coming up right now...

Posted by: Don K on May 14, 2008 at 7:58 PM | PERMALINK

I didn't realize this was a point of uncertainty, but yes, 50%+1 is all it takes to pass an initiative of any kind. The difference between a statutory initiative and a constitutional initiative lies elsewhere.

Of course, this is even stranger when you realize that it takes a two-thirds vote of the legislature to approve the state's annual budget. So: fiddle with the constitution any way you want, and all you need is 50%. But to pass a routine budget you need 67%. These two things together explain a lot about California.

Posted by: Kevin Drum on May 14, 2008 at 8:07 PM | PERMALINK

Here's another thought: stop kowtowing to the right wing, and stand up for marriage equality.

This whole idea that we same-sex couples just have to lay down our humanity in order not to shake things up, or hand the election to whomever. How about Democrats stand up for what's right, and stop the games?

Same-sex civil marriage has been fought for in this country for at least 40 years. Washington, DC nearly passed legislation to allow same-sex marriage in the mid-1970s (along with one of the country's first non-discrimination laws to include gays and lesbians). Gays and lesbians have fought the good fight with every single civil rights movement of the 20th century often as a number 1 or 2 in charge, but for some reason we have to keep "waiting."

Meanwhile, Ireland which up until 10 years ago listed homosexuality as a crime is poised to ratify same-sex civil unions this summer. And at the same time well educated gay and lesbian couples are continued to move over seas because they need to get on with their lives, start families, marry their spouses, and have given up waiting.

So how about people start standing up for what's right, making the case for equality and stop throwing gays and lesbians under the bus, huh?

Posted by: Christopher on May 14, 2008 at 8:08 PM | PERMALINK

"That would lead to thousands of irrevocable civil marriages and set up a ballot initiative this fall as a potential watershed for civil rights."

Correct me if I am wrong, but wouldn't the proposed amendment to the California constitution revoke any same sex civil marriages?

Don't seem irrevocable to me...

Posted by: Mike F on May 14, 2008 at 8:21 PM | PERMALINK

wow, that'll go down big with the Qutbists.

Posted by: a on May 14, 2008 at 9:50 PM | PERMALINK

Well no one is ever actually going to interpret the provision as prohibiting everything but hetero marriages. Not for the next 50 years anyway.

I propose a Counter intiative for the grammar nazis!

"Only a marriage between a man and a woman is a valid marriage in California."

Confuse the hell out of them!

Posted by: MNPundit on May 14, 2008 at 10:03 PM | PERMALINK

If it takes 67% of the legislature to pass a budget and only 50%+1 of the people to pass a constitutional amendment, and if this is causing big public policy problems, why hasn't there been a constitutional amendment to reduce the threshold for passing the budget?

Posted by: Tom on May 14, 2008 at 11:22 PM | PERMALINK

"Prop 22 passed overwhelmingly with 63% of the vote. Has 13% of the state decided to relax since then and allow gay couples to live in peace?"

a) Yes, because...

b) I think (or, rather, hope) that amending the state's constitution to discriminate against gays may be tougher for California moderates and libertarian-leaning California conservatives to stomach than was a simple gay-bashing statute (Prop 22), but more importantly...

c) Prop 22 passed in 2000 during a springtime primary election in which Democrats were underrepresented at the polls (only about 3 million votes were cast that day in the presidential primary on the Democratic side, versus 4 million votes cast in the Republican presidential primary that same day... compare that ratio to the one we saw in the November election of that same year, when the Democratic and Green nominees tallied a combined 6.2M votes in California, and the Republican nominee tallied 4.5M California votes). Contra 2000, this coming piece of gay-bashing ballot bait will hit the polls in the November general election. And unlike the 3/'00 election, there is absolutely no way that California Republicans will outnumber California Democrats at the polls in 11/'08. Plus...

d) since 2000, plenty of old bigots have died. And furthermore...

e) since 2000, the California assembly and senate have twice passed legislation legalizing gay marriage, giving the institution the additional patina of statewide, government-approved legitimacy that it didn't have in the year 2000. And though the governor did twice veto the legislation, he did so on (ostensibly) democratic grounds, declaring the bill to be a legislative end-run around the express will of the California voter. At the same time, the governor has confessed (then, and since) to a certain amount of ambivalence with regard to this issue, raising the very real possibility that...

f) Governor Schwarzenegger may choose to voice opposition to this constitutional amendment, or at the least decline to support it, which would leave the "Yes" side without a high-profile champion. And besides...

e) I'm gonna work my butt off going door-to-door urging California voters to vote "No" on this piece of discriminatory garbage.

Y'all should join me.

Patrick Meighan
Culver City, CA

Posted by: Patrick Meighan on May 14, 2008 at 11:23 PM | PERMALINK

Well, I guess the good news is that if they manage to pass this with 50%+1, it'll only take 50%+1 to reverse it in a few years after a few more of the old bigots die.

Gay marriage will eventually come, I think. The demographics (young people favor it far more than older ones) make it inevitable.

Posted by: jimBOB on May 14, 2008 at 11:40 PM | PERMALINK

What I don't understand is how the religious right can want the government to decide who can and cannot participate in a religious sacrament. It's like deciding who can or cannot be baptized or ordained. Each religous group should decide for itself whom it wants to marry to each other and what marriages it wants to recognize. The government should get entirely out of the business of religious ritual.

Civil aspects of marriage are a different matter. The government has an interest in inheritance, tax returns, and such, and they should not discriminate on the basis of how your brain is wired for attraction. Any group of 2 or more people who want to swear to take care of each other should be allowed to marry and share tax returns. Computers can keep track of it, and the rest ain't none of our business. Why should we care what somebody else's mating practices are? It's not like they're ordained by god or anything.

Posted by: anandine on May 14, 2008 at 11:48 PM | PERMALINK

"Here's another thought: stop kowtowing to the right wing, and stand up for marriage equality."
Posted by: Christopher on May 14, 2008 at 8:08 PM

Damn skippy.
Since I live in Massachusetts, I [very briefly] bought into the bull$#!t that the 2000 debacle was enabled by our Supreme Judicial Court's having at that time recently required of the legislature that the state permit same-sex marriage.
But I came to realize how wrong I'd been. Nobody willingly gives up power -- or privilege. It has to be taken, often forcibly. And sitting around just waiting for the extinction of the homophobes isn't going to cut it.
How was it that the reichwing succeeded in pulling so much of the polity so far to the right for so long? Part of it, of course, was with full control of the mass media, and the propaganda exploitation that permitted. But part of it was just demanding more, and more, and more -- to the point that ideas that would have been instantly dismissed as lunatic just a decade ago, are now not only given a respectful airing, but are often enacted.
Don't forget that even GWB has indicated his support for civil commitment that (allegedly) confers all the legal benefits of marriage. Would that have been even remotely possible if we'd been meekly awaiting their acquiescence?
If you don't demand, you don't get. We've already been waiting far too long to do what's right here.
And the irony is, I'm convinced that an uncompromised stance on full equality, including marriage, would help, rather than harm, the electoral success of the Democrats. How many times have we seen, on so many other issues (taxes, war, you name it) that when Dem's sell out to the Rethugs, they lose anyway -- and when they take a firm stance against their insanity, that's when Dem's win, and win, and win.

Posted by: smartalek on May 15, 2008 at 12:15 AM | PERMALINK

Sounds like it's time to pass a Constitutional initiative to raise the threshold to 67% on Constitutional initiatives.

I'm stunned to learn that a Const initiative could be so easily passed and wonder why anyone would waist time with anything but a Const initiative.

Posted by: Don on May 15, 2008 at 12:28 AM | PERMALINK

Any group of 2 or more people who want to swear to take care of each other should be allowed to marry

Once you move past 2 partners the logistical and practical issues explode in complexity. For example, it's customary that a spouse is automatically empowered to make important medical decisions on behalf of his/her unconscious partner (which happens a lot - see Terry Schaivo). In a 3+ partner marriage, how does this work? Do they take a vote? What if there's an even split between those holding opposed viewpoints? Will the hospital be expected to track down all partners in an emergency situation? (This could be nontrivial in situations involving, say, 5 or more partners.)

Then there's the implications for divorce law, already complicated when you have just 2 partners. Suppose partners A and B want to divorce partner C, but partners D and E don't? And on and on. And I haven't even touched on the tax implications.

Posted by: jimBOB on May 15, 2008 at 12:32 AM | PERMALINK

Not happening. The Supreme Court's only openly gay clerk just resigned without notice.

Nobody quits those jobs, they're a gateway.

I think its a blanket ruling against the California Constitution requiring same-sex marriage to be legal.

Posted by: JoshA on May 15, 2008 at 1:12 AM | PERMALINK

Back in '04, I think, our host thought gay marriage would be a winning issue for Democrats. The conventional wisdom is that it wasn't. In Why We're Liberals, Eric Alterman contends that it's an issue we can't back away from.

Is it really likely to increase Republican turnout in November? More than the prospect of President Obama?

Posted by: bad Jim on May 15, 2008 at 1:13 AM | PERMALINK

Even if this makes the California Constitution it would violate the Equal Protection Clause of the 14th amendment:

"no state shall…deny to any person within its jurisdiction the equal protection of the laws"
Combined with the Lawrence v. Texas ruling, there's no way a ban on gay marriage is constitutional.

Posted by: croatoan on May 15, 2008 at 1:16 AM | PERMALINK

Several trends bode well for gay marriage in CA, but it will be close.

1. 2/3 of young people that gained the franchise since prop 22 will be fine with gay marriage.

2. 2004 was immediately after the Catholic Church scandal. However unfair, that raised the fear factor nationwide that particular year.

3. "Marriage" or no "marriage," in most of urban California gay people are more commonplace than ever and really, we're fine. Society in Mass., Spain, Denmark, Cali, etc. really hasn't changed because of tolerance of gay people or gay marriage. Not unlike the GOP propaganda machine at large, the outrage machine is running out of fuel in the face of reality.

4. When push comes to shove, some straights that might be a little uncomfortable here, who would prefer civil unions/domestic partnerships to "marriage", will be uncomfortable voting with the right wing -- more so than 2000.

The issue polls close to 50/50. The legislature passed gay marriage. It will be a high turnout election. Gay people in Cali weren't happy about the election in 2000, but it was expected and more of a win of one set of activists over another. With victory in sight, there will be full mobilization in the gay community at large... in the suburbs... and we'll see.

If the GOP thinks that gay marriage in Cali will whip up outrage against Democrats, they are deluded. Gay people are a threat, but midadventures in Iraq and Wall Street aren't? Good luck with that. I guess it will work in West Virginia...

Posted by: nice strategy on May 15, 2008 at 1:41 AM | PERMALINK

People who promote initiative campaigns in California usually choose legislative initiatives rather than constitutional initiatives because it takes fewer signatures to qualify the ordinary statutory kind. As it says on the website of the California Secretary of State:

There are two types of initiatives that can be placed on the ballot: 1) statute revision, which requires signatures equal to five percent of the total votes cast for Governor in the preceding gubernatorial election, and 2) constitutional amendment, which requires signatures equal to eight percent of the Governor's total vote in the preceding gubernatorial election.

As for a supreme court ruling in favor of civil unions being a big gift to the GOP, I seriously doubt it. While Mayor Newson's attempt to approve gay marriages in San Francisco in 2004 got a lot of attention, it didn't stop Kerry from carrying California by a comfortable margin. The contempt in the country for George Bush is unlikely to allow civil unions to become a potent wedge issue in other states, though it may have a marginal effect. And even though he's damaged goods these days, Gov. Schwarzenegger is not hugely unpopular and he would oppose the initiative campaign, drawing its teeth as a Democrat vs. GOP issue.

Posted by: Zeno on May 15, 2008 at 2:12 AM | PERMALINK

So ... 50% +1 can pass a constitutional amendment. Very little tends to be made of the fact that some initiatives are amendments versus simple statutes. Amendments have the huge advantage of being above constitutional challenge.

So, please explain: why would ANY initiative be proposed as a statute rather than an amendment?

As for the pass an amendment making it harder to pass amendments and the "it's just as easy to change it back" ... the latter is why there is pressure to keep amendments simple majority controlled, I suspect. You wouldn't want to seal the current constitution in when you have key amendments you want changed ...

Posted by: Tom Dibble on May 15, 2008 at 2:56 AM | PERMALINK

>Not happening. The Supreme Court's only openly gay >clerk just resigned without notice.

Link or it didn't happen.

Posted by: lancasterpa on May 15, 2008 at 3:51 AM | PERMALINK
Link or it didn't happen.

It appears to be rumor at this time, but I wouldn't discount it, entirely.

Anyway, there's not much point in trying to read tea leaves from rumors and how much time the decision has taken; we'll have the actual decision in a few hours and know.

Posted by: cmdicely on May 15, 2008 at 10:21 AM | PERMALINK

Seriously, 50+1 to amend your constitution?

You people really ARE from another planet.

Posted by: MNPundit on May 15, 2008 at 1:19 PM | PERMALINK

California's Top Court Overturns Gay Marriage Ban

SAN FRANCISCO (KCBS/AP) - The California Supreme Court has overturned a gay marriage ban in a ruling that would make the nation's largest state the second one to allow gay and lesbian weddings.
The justices' 4-3 decision Thursday says domestic partnerships are not a good enough substitute for marriage. Chief Justice Ron George wrote the opinion.

The city of San Francisco, two dozen gay and lesbian couples and gay rights groups sued in March 2004 after the court halted San Francisco's monthlong same-sex wedding march.


Posted by: OriGuy on May 15, 2008 at 1:24 PM | PERMALINK

As previously noted, it takes signatures equal to 8% of the most recent statewide vote for governor to qualify a constitutional amendment initiative for the California ballot. That's 694,354 according to the California secretary of state's office. A statutory initiative, however, qualifies with only 5% of the previous gubernatorial vote, or 433,971. That's why people may choose to go the statutory route, since the constitutional amendment requires 60% more signatures.

Of course, once it's cleared the 8% hurdle in signatures and made the ballot, it takes only a simple majority for the constitutional amendment to be enacted.

Posted by: Zeno on May 15, 2008 at 1:36 PM | PERMALINK

Now is the time for gay and lesbian persons and those that support individual freedom's to standup in CA. Whichever Democratic Candidate wins the nomination, let it be stated clearly that our integrity is no longer for sale. If you want to win CA and its electoral votes, you must both verbally denounce the proposed initiative, "if it is on the ballot," and verbally campaign for support of "civil" marriage for all CA citizens. Failure to do so, means I am not voting for President this year while I cast my vote against the proposed initiative it is makes it to the ballot. PERIOD.

Posted by: Michael on May 15, 2008 at 3:30 PM | PERMALINK

Geez, Texas is more enlightened.

Here, a constitutional amendment must clear both houses of the Lege by 2/3 THEN ALSO get 50 percent plus 1 from voters.

And, they can only go on the November ballot, though they can go on the ballot in off years.

Posted by: SocraticGadfly on May 15, 2008 at 4:02 PM | PERMALINK

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