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Tilting at Windmills

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May 15, 2008
By: Kevin Drum

WILL CALIFORNIANS VOTE TO BAN GAY MARRIAGE?....It's almost certain that an initiative to ban same-sex marriage will be on the California ballot this November. How likely is it to pass?

Here's a very crude cut at an answer. Lots of polls have been done over the years about attitudes toward gays, and they all show a similar trend: people have become more gay friendly at the rate of about 1% per year. Here are some examples from Karlyn Bowman's 2006 roundup of historical poll data:

  • Same-sex relations "not wrong": increased from 11% to 31% between 1973 and 2004.

  • Gays should have equal employment rights: increased from 56% to 89% between 1977 and 2006.

  • Gay marriage should be valid: increased from 27% to 39% between 1996 and 2005.

  • Gays should have adoption rights: increased from 29% to 45% between 1994 and 2004.

All of these questions have had ups and downs over the years, but on all of them the population has gotten steadily more gay friendly. The exact rate of change per year on these four questions is: .66%, 1.14%, 1.2%, and 1.45%. The average of all four is 1.11% per year.

In 2000 Californians voted to ban same-sex marriage by a margin of 61%-39%. If attitudes toward gay marriage have followed their historical pattern, about 9% more Californians are in favor of it this year, which means they'd still vote to ban it, but by the smaller margin of 52%-48%.

In other words: this is likely to be very close. These numbers have fairly big error bars attached to them, and it's also possible, especially in California, that attitudes toward gay marriage since 2000 have softened faster than in the past. Still, right now it looks to me like the odds are slightly stacked against those of us who favor same-sex marriage. This is going to be a very tough campaign.

UPDATE: I originally had the vote on Prop 22 pegged at 63%-37% in favor. I'm not sure where I got that, but the actual final tally was 61.4%-38.6%. So this is even a closer call than I thought.

Kevin Drum 8:17 PM Permalink | Trackbacks | Comments (72)

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Comments

Does passing a constitutional amendment in California only require a simple majority? If that's the case, I think it will be difficult for progress to prevail. Hopefully, even if they're not on board with equality, some more conservative voters will take the Drum Position and simply vote No on all initiatives.


Posted by: kidkostar on May 15, 2008 at 8:21 PM | PERMALINK

I'm confused about how the state constitution can be changed by a referendum. Do all referendums in CA change the constitution, or is there something special about this one? All it takes is a simple majority?

Posted by: Jim E. on May 15, 2008 at 8:24 PM | PERMALINK

Jim E.
All it takes is a simple majority which is California has the most screwed up Constitution of all the states, since something is changed in it almost every two years.

And While I agree it could be close, I think that's one place where the Obama magic on turnout (especially of youth) could be mutuall benefitial to Obama and the gay rights movement as we know how much more open to same sex marriages the young voters are.

It will be fascinating to watch

Posted by: Benjamin on May 15, 2008 at 8:27 PM | PERMALINK

I'm all in favor of equal rights for gays, but I think this situation is exactly why the issue should have been legislated instead of placed before the courts. If an amendment passes, then it will take that much longer for gay Californians to get equal rights. And then what good will the court battle have accomplished?

Posted by: Stacy on May 15, 2008 at 8:28 PM | PERMALINK

I don't trust any election results recorded or tabulated by Diebold or any of the other crooked companies.

So I will say NO, Californians neither did nor will vote to ban gay marriage, but DIEBOLD may

Posted by: on May 15, 2008 at 8:30 PM | PERMALINK

California's mission: To Dieboldly go where no man has gone before.

Posted by: slanted tom on May 15, 2008 at 8:39 PM | PERMALINK

Don't overlook the fact that the demographics of California haven't remained static over the last eight years. You shouldn't take it as a given that the white flight out of California and the increased Hispanic proportion of the population has created a more gay-marriage friendly trend.

It could well be that there is a disproportionate number of conservative leaning people leaving the state thus increasing the liberal quotient, but there are plenty of tales told in neighboring states of liberal California folks arriving.

Posted by: TangoMan on May 15, 2008 at 8:40 PM | PERMALINK

Explain these results: only 31% say same-sex relations "not wrong" yet 45% approved of gay adoption.

It seems that people are interpreting the first question as whether gay sex is right for them.

Posted by: Benjamin on May 15, 2008 at 8:41 PM | PERMALINK

It will also be interesting to see what other ballot measures appear on the ballot.

If, for example, there is also a measure that boils down to: "Keep those dirty brown people away from me", it might bring more of the knuckle draggers out of the wood work. I think (although I have no facts to prove it) that people in California still get a little more worked up over immigration issues than gay rights issues.

I suppose it also depends on the presidential race. McCain doesn't have the same appeal to the knuckle draggers as a lot of other Republicans, so maybe the knuckle dragging turn out will be light. Unless, of course, Bob Barr or Ron Paul can convince these guys to come out, vote protest votes in the form or Barr and Paul and then vote against gay rights and brown people in the measures.

Anyway, just talkin' out of my butt. I moved out of California 6 months ago. Too damn expensive.

Posted by: BombIranForChrist on May 15, 2008 at 8:42 PM | PERMALINK

Thank you, Benjamin. I also see that not all CA referendums change the constitution -- those require more signatures. Still pretty twisted.

If Arnold is ok with this, he should have just signed it into law when he had the chance. According to A. Sullivan, same-sex couples can get married (starting in 30 days) and those marriages will be unaffected by the referendum. So at least something good will come from this. (I don't hold out much hope for the referendum failing.)

Posted by: Jim E. on May 15, 2008 at 8:43 PM | PERMALINK

Well there are theories as to the judicial vs legislative process (for the record, the Democratic legislature passed gay marriage twice and were vetoed by Arnold who wanted the judges to decide so he wouldn't have the responsability to explain that to his Republican base even though we know him to be sympathetic to our cause).
One thing that will help is that by the time November rolls up, there will have been six months of gay marriages celebrated all around the state. And as MA proved, all it takes to soften up public opinion is to prove nothing changes once it happens and to see real true stories of regular people happy and unthreatening.

Posted by: Benjamin on May 15, 2008 at 8:45 PM | PERMALINK

I would suspect that Californians may have become more liberal on this issue at a somewhat faster rate than the nation as a whole.

And I agree that Obama may have some useful coat tails for this.

It will be close but I'm heartened by the fact that we did vote down that recent, and relatively innocuous, parental notification initiative.

And it is crazy that Constitutional amendments via initiative don't require 2/3 majority when passing even the most reasonable and minor tax does.

Posted by: cthulhu on May 15, 2008 at 8:47 PM | PERMALINK

Stacy,

Doesn't matter if it is legislated, the anti-equal-rights crowd could bring this up for citizen's initiative any time they wanted to, and probably will, and may try again if they lose the first time. (California's citizens-initiative process is just plain crazy, that you can amend the constitution with a simple popular majority.)

And the courts just rule when the cases are brought before them; Massachusetts' court decision arguably cost Kerry the election in 2004. Plenty of us were thrilled at the decision, but cringing at the timing.

On the other hand, the Massachusetts experience has been as dull and boring as you could hope it could be -- no locusts, no smiting, no plagues, just those gay couples that want to get married, get married. I know of one such couple (a pair of former colleagues, who had already been living together for years) and they report that they're glad they did it, and did indeed feel that it was different from and better than merely cohabiting. Lest anyone wonder, churches are NOT compelled to marry whatever couple wanders in looking to get hitched; there are NO gay Catholic weddings.

I would hope, even though a simple majority is sufficient for an amendment, that California's voters would regard amending the constitution as being much more serious than mere legislation, that they would consider the non-issue that gay marriage has become in Massachusetts, and that simple fairness would cause them to consider allowing gays to marry.

Posted by: dr2chase on May 15, 2008 at 8:57 PM | PERMALINK

There will be a critical difference between the election this fall and the previous time around. This time, there will be thousands of identifiable human beings whose marriages would be ended by the vote. There's a difference between ending something that exists, and creating something that doesn't yet exist.


Posted by: Joe Buck on May 15, 2008 at 9:02 PM | PERMALINK

If the ballot measure coincides with the November election, I think it could be very close.

Especially if Obama is in a position to win the presidency. That might dampen conservative turnout. They won't win California and if the election is already "over" by the time the west coast polls close may be they won't bother to cast their ballots.

I expect the voters of California to reinstate the ban on gay marriage. And even if the ballot measure fails (this time), it will be back on the ballot in no time.

Posted by: Butcher Pete on May 15, 2008 at 9:04 PM | PERMALINK

Well, I know this is the nightmare scenario for Dem worrywarts (God, did I just use the word "worrywarts"?), but seems to me some leadership from our Dem nominee could make a crucial difference here given how close it's likely to be. But I feel pretty confident in predicting that Obama will beg off taking any position on it. It'll be "an issue for the voters of CA," I bet. I would LOVE to be proven wrong, believe me.

Posted by: Glenn on May 15, 2008 at 9:09 PM | PERMALINK

One big difference is that in 2000, when California voters chose to ban same-sex marriage, gay marriage was a fantasy, an unknown, a narrative device used in novels of the far-future to show how different the world is. I don't think it's an overstatement to say that the world has changed. Same-sex marriage is now legal and takes place without fanfare in the large countries of Canada and Spain as well as other nations. Its scary stepbrother, civil unions, is now available throughout the rest of Europe. Civil unions have spread from Dr. Dean's home state to a number of states and smaller government units like New York City.

Most importantly, same-sex marriage has been a fact in Massachusetts since four years ago this Saturday. In that time, Massachusetts residents' view towards same-sex marriage has gone from severe conflict to *yawn*. Women marry women and men marry men and the state has not (let me look out the window to check...) fallen into a fiery pit of damnation. Not a single legislator has lost his or her seat for supporting same-sex marriage. Furthermore, a proposed constitutional amendment to ban same-sex marriage failed to even reach the voters because its supporters could not get even 50 of the 200 Massachusetts legislators to support it. (Just four years earlier, more than half the legislators supported a proposed amendment banning same-sex marriages but establishing civil unions, and some of those legislators voted against the amendment not because they supported same-sex marriage but because they also didn't want civil unions. It's a tremendous swing in votes in just four years.)

I think same-sex marriage has a good shot at surviving. I also think you Californians need to do something about your constitutional amendment system. The good thing is that even if it's banned, it would only take a petition drive and a majority popular vote to repeal it. Sure, it's a big deal, but it's nothing like a federal constitutional amendment (which, for the first time, I'm confident in thinking could never pass).

Posted by: Geoff Green on May 15, 2008 at 9:11 PM | PERMALINK

Jim E: first, some basic terminology. A 'referendum' is a vote by the voters on a statute passed by the legislature. An 'initiative statute' is a vote by the voters on a statute written by voters. An 'initiative constitutional amendment' is a vote by the voters on a constitutional amendment.

It's harder to get an initiative constitutional amendment on the ballot than it is to get an initiative statute on the ballot, but it's likely this one qualified.

Kevin: to my astonishment, we have the governor in our corner. That will help tremendously.

Butcher Pete: I think there's a good chance we can defeat it *this time*. But you're right that if we do it'll just be back in two years. But ... the longer gay marriages happen normally, the harder it will be for such an amendment to pass.

Posted by: aphrael on May 15, 2008 at 9:11 PM | PERMALINK

Jumping off of what Geoff said, I think it's tremendously significant that gay marriage will be legal in California for four and a half months before the referendum vote. Lots of people will know someone who marries in that time, or announces their intention to. Many many more will see the photos of happy couples in the newspaper, and read the stories and op-eds about their marriages.

The more you know about gays, the more familiar you are with them, the less likely you are to vote against their interests. And California is about to get a crash course.

I'm optimistic about the prospects for defeating this measure.

Posted by: Brooklynite on May 15, 2008 at 9:25 PM | PERMALINK

Benjamin: "... I think that's one place where the Obama magic on turnout (especially of youth) could be [mutually beneficial] to Obama and the gay rights movement ..."

What a wonderful idea! Why, maybe hyper-closeted gospel singer Donnie McGurkin could hold a concert fundraiser!

I hate to burst your balloon (or inflated condom, whatever your preference may be), but you're talking about a candidate who is so freakin' petrified to have his name be associated with the gay marriage issue that he actually refused to be photographed with San Francisco Mayor Gavin Newsom at a 2004 Bay Area fundraiser hosted by former Mayor Willie Brown.

The Immaculately Incarnated One will go nowhere near this, trust me. When it comes to GLBT issues, his is the backbone of a marshmellow. But I'm sure that he'll show his support in his own way, and allow his campaign to continue accepting gay & lesbian donations ...

Posted by: Out in Pasadena on May 15, 2008 at 9:38 PM | PERMALINK

I will refrain from rehashing the BS from Out in Pasedena except that to point out that if Obama is president every state will have to recognize the marriages that will be celebrated here.
If HRC had been elected President, she would have kept the DOMA provision preventing that from happening.
And as for the 2004 photo, I am still waiting to see Hillary in a 2004 picture with Gavin Newsom. Everyone living in SF knows that these "Election Day revelations" were a bunch of baloney fueled by Newsom's ego. Trust someone living in SF :)

Posted by: Benjamin on May 15, 2008 at 9:41 PM | PERMALINK

Stacy, that doesn't follow. They did try to get it through the legislature twice, and Schwarzenegger vetoed it.

However, assumed he signed it, and gay marriage were legalized the way you think was preferable.

Guess what. Conservatives would *still* work to get an initiative on the ballot, with the same results.

People can decide they're unhappy with the courts' role in this, etc., however, that's not a valid case for saying it was a tactical mistake.

Posted by: Brittain33 on May 15, 2008 at 9:58 PM | PERMALINK

I think it also helps that the legislature has passed a marriage equality bill and the governor was just waiting for the court to weigh in before he would sign it. So this is not a case of an amendment necessary to stop the courts. All 3 branches of California government now stand in support of marriage equality. I think there is a good chance of defeating the amendment.

Posted by: Galois on May 15, 2008 at 9:58 PM | PERMALINK

In 2000 Californians voted to ban same-sex marriage by a margin of 63%-37%.

Also, roughly half the country voted for George W. Bush. People behaved like motherfucking idiots because everyone thought that FOX News was the greatest thing evah.

A lot has changed. Gay marriage is here to stay in California.

Bigots can suck the dust out of my dead grandma's malformed shriveled clit.

Posted by: Eat Me on May 15, 2008 at 10:01 PM | PERMALINK

Of course you'll refrain from re-hashing, Benjamin, because you've really got nothing to back up what you say. No less than Willie Brown himself supports Newsom's statement about Obama's snub. Here's the link to the article (sorry about the broken link in the previous post).

And for the record, here's the Obama campaign's just released statement on the CA Supreme Court ruling:

"Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as President. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage."

(Emphasis mine.)

Please notice, Benjamin, how Obama's carefully-nuanced statement deftly avoided expressing any open support on his part for gay marriage in California.

And regarding your statement about a photo of Hillary Clinton and Gavin Newsom together, here's one for you. Not from 2004, but then again, she probably wasn't holding a campaign fundraiser in the San Francisco Bay area that year.

I certinly don't think Obama is in any sense a homophobe, Benjamin. Several of his senior campaign staff are gay. For that matter, neither is Hillary Clinton, and her own official stance on gay marriage is really no different from Obama's, in that both are on record as stating that it's an internal matter for the states to decide.

But please, don't mislead people or insult their intelligence by intimating that your candidate is in favor of gay marriage, when he's clearly never said any such thing.

Posted by: Out in Pasadena on May 15, 2008 at 10:25 PM | PERMALINK

I'm hopeful the initiative can be defeated, but the Obama factor could work against us because his candidacy is likely to increase African-American turnout substantially. In 2004, Detroit voted its normal 94% Kerry, 6% Bush, but also voted 52/48 in favor of the marriage initiative. Just saying, African-American voters may be reliable Democrats, but they aren't necessarily social liberals as well.

Posted by: Don K on May 15, 2008 at 10:28 PM | PERMALINK

According to Wikipedia, Prop 22 passed in a March election in 2000. Is it really fair to compare results from a primary and local election that people in general probably didn't care much about with potential results from an election that will presumably be the biggest presidential election turnout in history? I don't claim to know where California will be on this, and it will absolutely be close, but the failure of a similar initiative in Arizona in 2006 makes me feel a little more encouraged. In any case I intend to get myself married ASAP, while the gettin's good.

Posted by: Drew on May 15, 2008 at 10:33 PM | PERMALINK

I wonder if having this vote during the general election will make a difference.

Remember, Proposition 22 was approved by voters during the 2000 March primary. Turnout was pretty high, but the Republican nomination was really the only one still in play when the vote rolled around (even though Bush really had the nomination locked up).

Turnout in this spring's primary was even higher than 2000 (and strongly Democratic). I wonder what it means for this fall.

One other factor to consider -- same-sex marriages will be in effect for 4.5 months before Election Day, but people can start sending in their absentee ballots 30 days in advance (so it's really 3.5 months).

So, there's some time to get adjusted to the impacts (or lack thereof) of today's ruling. However, it might not make much of a difference if parties for and against same-sex marriages make a loud ruckus.

Lastly, does anyone want to make a bet on when we'll see the first anti-same-sex marriage TV ad trotting out images of happy, smiling children while denouncing the "evils" of gay marriage?

Posted by: Ryan on May 15, 2008 at 10:35 PM | PERMALINK

Californians already passsed a measure to ban gay marriage, which the state Supreme Court has now overturned. This time, however, the initiative would be a constitutional amendment, meaning the court ruling would be invalidated. I don't think that voters will be as willing to permanently ban gay marriage, especially once they see gay couples getting married (as in Massachusetts) over the next four or five months. Anyone that wants to be married will do so now.

The increased African American vote will be matched or exceeded by the increased youth vote. African Americans and Hispanics can be appealed to on the basis of civil rights. More Republicans than might have done sp otherwise will turn out to vote on the marriage amendment, but that too will be counterbalanced by increased Democratic turnout.

So, yes, it's going to be close.

Posted by: John Raymond on May 15, 2008 at 10:46 PM | PERMALINK

Ever get the feeling that these trends are maybe moving too far in one direction? Tyranny of the majority, anyone?

Posted by: Mr. Liberal on May 15, 2008 at 10:50 PM | PERMALINK

I hate to rain on the parade, but the court will almost certainly stay its decision pending the results of the election, so no gay marriages are likely to take place in California before the November election.

The outfit that wants to amend the state constitution already has all the signatures it needs, so they are just waiting for those signatures to be validated. That will almost certainly happen before the court's 30-day waiting period elapses -- and making time for the validation of the signatures is probably why the court called for a 30-day waiting period instead of commanding the decision to take effect forthwith.

Posted by: William Slattery on May 15, 2008 at 10:53 PM | PERMALINK

Was there a question in this poll about whether people thought judges should be able to change the law just because they felt like it? How about whether California should just forget about elected representatives and referenda and let judges decide all the big issues?

As it is, the deck in California seems stacked heavily against people who favor the status quo with respect to marriage. The state Supreme Court has decided to change the law, and Californians now have to amend their constitution to get the old law back. There can't be any doubt that supporters of gay marriage would prefer to keep them from doing this if they could; they are all for democracy, until democracy stands in the way of their getting something they want.

Posted by: Zathras on May 15, 2008 at 11:23 PM | PERMALINK

Stacy, Jim E. has it right. Der Governator (i.e. Chickenshit) vetoed it twice. If you really want "the process" to work, you should have gotten somebody to start the same recall that got launched against Gray Davis.

Kev, you could do a MASSIVE public service by posting links to the top political groups that will be fighting this thing, as we get closer to November, so people can make campaign contributions.

I'm going to do that on my blog as I get information. This is going to be ground zero. The 4-3 Cal Supremes split I think does reflect that this will be a close election.

Posted by: SocraticGadfly on May 15, 2008 at 11:57 PM | PERMALINK

The grass always looks greener on the other side. Next thing you know they'll be demanding divorces.

Posted by: Luther on May 16, 2008 at 12:01 AM | PERMALINK

So Zathras, if the measure goes before the electorate in November and a majority vote against it, do you promise to just accept this?

Note also, the Court didn't make a law, it repealed one that was at odds with the Constitution. Exactly what their job is. And these weren't so-called liberal judges either.

Posted by: cthulhu on May 16, 2008 at 12:17 AM | PERMALINK

Ultimately, time is against the anti-gay marriage crowd. If the amendment doesn't pass this time, it will be all the more difficult next time. If they were smart, they might push for a civil unions substitute but that won't fly with much of the anti-rights people.

I've always thought one solution was that the government recognized status would be civil unions for everyone, gay or straight, and leave the "marriage" construct to the churches. As it is though, even some churches seem to be headed in the direction of officially sanctifying gay marriage though the timeline for this is likely longer.

My wife and I got one of those Canadian gay marriages though other than changing he/he or she/she into he/she, it really didn't seem that different. And it was totally recognized here in the States. Go figure :-)

Posted by: cthulhu on May 16, 2008 at 12:40 AM | PERMALINK

I hate to rain on the parade, but the court will almost certainly stay its decision pending the results of the election, so no gay marriages are likely to take place in California before the November election.

The outfit that wants to amend the state constitution already has all the signatures it needs, so they are just waiting for those signatures to be validated. That will almost certainly happen before the court's 30-day waiting period elapses -- and making time for the validation of the signatures is probably why the court called for a 30-day waiting period instead of commanding the decision to take effect forthwith.

Posted by: William Slattery on May 15, 2008 at 10:53 PM | PERMALINK

A decision of the California Supreme Court becomes final 30 days after filing under the standard rule. There's nothing special about the 30 days in the Marriage Cases, and it's not a stay. There will be same-sex marriages before the election.

Posted by: Roger Ailes on May 16, 2008 at 1:13 AM | PERMALINK

Could be that the anti-conservative animus sweeping the nation will make the "don't ban" numbers jump on this issue-- people will have become more open-minded on this as sort of a tag-along issue with other doubts they've been having about the Republicans lately, or relative moderates will take the liberal position to "get back" at conservatives they feel have misled them.

Let's cross our fingers and not write it off yet.

Posted by: Swan on May 16, 2008 at 1:22 AM | PERMALINK

Since Obama's against gay marriage, I don't see how he's going to help keep this referendum from passing. This is exactly why I don't support him. He is weak on this issue and the republicans will make mince meet out of him in November.

Democrats seem to exist only to lose elections.

Posted by: MichaelBuchanan on May 16, 2008 at 1:31 AM | PERMALINK

I believe the California SC legislated from the bench. Had they not overruled laws against gay marriage, then I think the anti-gay marriage Constitutional Amendment proposition would have failed. IMHO a majority of voters don't want the definition of marriage to be a part of the Constitution.

However, a Supreme Court decision is more-or-less equivalent to a Constitutional amendment. It creates a rule that cannot be amended by the legislature. So, the definition of marriage will effectively be in the Constitution, one way or the other. Under these circumstances, there's a better chance that this proposition will pass.

Also, some are pissed off that 4 justices stretched their powers to invalidate a law recently passed by an overwhelming majority of the voters. It's like a slap in the voters' faces. Some voters will be less concerned about gay marriage than with the abuse of judicial powers. Such people may vote for the proposition in order to reaffirm the principle that democracy should prevail.

Posted by: David (formerly ex-liberal) on May 16, 2008 at 1:42 AM | PERMALINK

David, why do you think the Supreme Court legislated from the bench? As far as I can tell, their argument is:

* California constitution requires equal protection.

* Under longstanding equal protection interpretation, a classification is suspect if it is (a) based on an immutable characteristic which (b) doesn't effect someone's ability to contribute to society and (c) is stigmatized. Homosexual orientation meets all three and is therefore a suspect classification.

* Use of a suspect classification must be narrowly tailored to meet a compelling state interest. Restricting marriage to straight couples isn't.

The two things which are arguable here are (a) is homosexuality an immutable characteristic, and (b) is banning gay marriage narrowly tailored to meet a compelling state interest.

But it's hardly legislating for a court to issue a ruling in either of those; that's what courts do.

Posted by: aphrael on May 16, 2008 at 2:12 AM | PERMALINK

I always find it fascinating to see conservatives hide behind the whole majority rule/democracy argument. It is Civics 101 that the US government was set-up by the founders as a form of democracy BUT with substantial protections for minority interests be they states or individuals. In general, state governments follow the same model. Thus the courts are often called upon to protect minority interests against simple democracy. This is how it is supposed to work.

The CSC did not create a Constitutional definition of marriage; it merely invalidated the definition stated by Prop 22 as in conflict with equal protection. Legal descriptions and effects of marriage remain unchanged from those in effect before and after Prop 22. All the Court said was there is no compelling state interest in the gender composition of the two people in a state recognized marriage. In fact, even if Prop 22 did not exist, the Court could simply have ruled that nothing in current law prevented gay marriage, basically what happened in MA. This is not legislating but interpreting WHICH IS WHAT THE COURTS DO! Failure of conservatives to understand this basic principal indicates that they really a) don't understand the system and/or b) don't believe that American-style democracy is best system for governance.

This is really the key and why the anti-gay marriage forces will eventually be undone: they are fighting in the wrong venue. As much as they wish it were otherwise, modern democratic governments are typically set up to be as agnostic as possible to protect the rights of as many people as possible. Issues of morality may converge as a state interest (e.g., drug abuse may be both a moral issue and a public health issue) but they are kept as independent as much as possible. If you want to debate issues of morality, do so in the proper venue: the Church. Be my guest to fight the good fight of keeping your pastor from being able to marry that nice gay couple in your church. It is a separate domain that neither the state or any other outside entity should intrude upon. The debate can hinge upon differing readings of Biblical passages or whatever. Frankly I'd still hope you'd lose but I'd respect your ultimate right to advance your prejudices in this case.

Posted by: cthulhu on May 16, 2008 at 4:04 AM | PERMALINK
I believe the California SC legislated from the bench.

And some people believe the world is flat. The California Supreme Court did the same thing the US Supreme Court did in, for example, Brown v. Board of Education and Loving v. Virginia and the Massachussetts Supreme Judicial Court did in Goodridge v. Dept. of Public Health: it interpreted the applicable Constitution and invalidated a contrary statute.

Had they not overruled laws against gay marriage, then I think the anti-gay marriage Constitutional Amendment proposition would have failed.

Maybe, maybe not. Its certainly impossible to ever determine the truth of the this statement.

IMHO a majority of voters don't want the definition of marriage to be a part of the Constitution.

I would think you'll find that a majority of voters don't have particularly strong opinions of whether the definition of marriage should be in the Constitution, in a statute unchangeable by the legislature (like Prop. 22), in a regular statute, or simply in the common law of the State. More of them care simply what the definition is, and a substantial number will simply be reluctant to have it change. The fear of change worked for the forces working against same-sex marriage in the past, because Prop. 22 was sold as simply entrenched the status quo and preventing change that might, supposedly, be forced on California by action in other states.

But the fear of change won't work for them this time, because the change will already have been made.

Posted by: cmdicely on May 16, 2008 at 9:48 AM | PERMALINK

Pretty soon, not only California, but Idaho and South Carolina will probably have gay marriage permanently protected by their law. We will no longer have morons legislating from the bench against it. The fact is that our nation makes a value of protecting gays-- when others elsewhere have often been falling behind, on one issue or another we have been in the lead. The people of California, Idaho and South Carolina probably will hurry to institutionalize gay marriage once they get their acts together.

Posted by: Swan on May 16, 2008 at 10:11 AM | PERMALINK

So here's a question. Let's say the Prop passes. Does that then invalidate all marriages conducted between the Effective Date of the Order and the Prop? I'm guessing not, since that would be essentially altering the rights of certain married couples post facto.

Posted by: do on May 16, 2008 at 10:30 AM | PERMALINK

Why not put a referendum on the ballot which amends the constitution saying that all future amendments require 2/3 approval from voters and throw in some wording to make it include the gay marriage amendment?

Posted by: drjimcooper on May 16, 2008 at 10:48 AM | PERMALINK

Do, the amendment says that only marriage between a man or a woman is valid or recognized in California. It's hard to imagine that it *doesn't* invalidate any same sex marriages performed between now and then.

Posted by: aphrael on May 16, 2008 at 10:55 AM | PERMALINK

Did anyone point out that while four million Republicans showed up to vote for the issue... (only half of the rest of us did)

...Less than five million Republicans showed up to vote for W?

So I think they've shown their card for how much they can bring out to vote on the issue. We just need to make sure everyone else who goes to the polls will outnumber them like usual.

Posted by: Crissa on May 16, 2008 at 2:52 PM | PERMALINK

"Explain these results: only 31% say same-sex relations "not wrong" yet 45% approved of gay adoption.

It seems that people are interpreting the first question as whether gay sex is right for them."

Doesn't seem that way to me. So, around 20% of the people who think gay sex was wrong nonetheless think it's okay for them to adopt. I'm going to assume that the overwhelming majority of those opposing gay sex are opposing it for religious reasons. It could be that 1/5 of the religious vote think that saving a human life is more important than whether or not same-sex relations are occurring - that abortion is a more important issue than homosexuality.

Posted by: Tel on May 16, 2008 at 3:39 PM | PERMALINK

A couple of posters asked why I thought the CA SC was legislating from the bench. The short answer is that I found the dissenting arguments more persuasive.

In my own words, I don't think the California Constitution forces this outcome. By its nature, the right to marry must be limited. There are arguments both ways about whether gays should have the right to marry. There are similar arguments about the appropriateness of bigamous marriages, first cousins marrying, and people below the current age of consent. IMHO none of these situations is specifically addressed by the words of the Constitution. I think they should be dealt with by the political process.

Posted by: David on May 16, 2008 at 5:28 PM | PERMALINK
A couple of posters asked why I thought the CA SC was legislating from the bench. The short answer is that I found the dissenting arguments more persuasive.

There is a difference between "interpreting the Constitution differently than I would" and "legislating from the bench", which you seem to fail to grasp. Beyond that, please, do you disagree with the application of strict scrutiny (and, if so, why?) or do you think that the differential treatment here should have withstood strict scrutiny (and, if so, why?).

In my own words, I don't think the California Constitution forces this outcome.

Constitutions are words on paper. They don't force anything.

By its nature, the right to marry must be limited.

Certainly, there may be justifiable limits on the right to marry, but I can't see any defense for the claim that it must, by its nature, be limited.

There are similar arguments about the appropriateness of bigamous marriages, first cousins marrying, and people below the current age of consent.

Even if similar in outline, those arguments (and the specific facts to which they apply) are clearly distinct. But, in any case, so what? If those things have compelling reasons to be prohibited for their own reasons, those would, of course, weigh against them even if strict scrutiny were applied (which, the decision here does not suggest would be the case for any of those, as none of them appear to discriminate against a suspect class.)

There are similar arguments about the appropriateness of bigamous marriages, first cousins marrying, and people below the current age of consent.

I don't see how the issue in the case here (not your hypotheticals, which are irrelevant) is any less specifically addressed in the California Constitution than the issues in Loving v. Virginia or Brown v. Board of Education were in the U.S. Constitution. Would you say the Brown or Loving court, (or the California Supreme Court in Perez v. Sharp, invalidating state laws on interracial marriage on State Constitutional grounds considerably before the U.S. Supreme Court did so on federal Constitutional grounds in Loving) was "legislating from the bench"?

What is your standard besides disagreeing with your preferred outcome?

Posted by: cmdicely on May 16, 2008 at 5:57 PM | PERMALINK

A couple of posters asked why I thought the CA SC was legislating from the bench. The short answer is that I found the dissenting arguments more persuasive.

I understand that you find the dissenting arguments more persuasive. But other people find the main argument more persuasive.

I would argue that as long as the argument can be reasonably grounded in law and precedent, the court is not "legislating from the bench" simply because it interprets that law and precedent differently than I would. It is only "legislating from the bench" if it adopts a position which is entirely unmoored from law and precedent.

There's a lot of space between "entirely unmoored from law and precedent" and "agrees with my interpretation of law and precedent".

There are arguments both ways about whether gays should have the right to marry. There are similar arguments about the appropriateness of bigamous marriages, first cousins marrying, and people below the current age of consent. IMHO none of these situations is specifically addressed by the words of the Constitution.

I think you're missing an important part of the court's argument if you can't differentiate between these.

The court argued that the equal protection clause of the state constitution makes sexual orientation a classification which is suspect, meaning that state laws differentiating based upon that classification are only consistent with the equal protection clause if they are narrowly tailored to meet a compelling state interest.

It's not clear to me that the discrimination involved in prohibiting bigamous marriages, marriages between cousins, or marriages involving children under the age of consent are based upon suspect classifications. Moreover, it *is* clear that rules prohibiting bigamous marriages and marriage involving children who are unable to consent are narrowly tailored to meet a compelling state interest.

Now, it would be one thing to argue that there's no justification for the court's use of strict scrutiny when it comes to laws that discriminate against gay people; but it's quite another to ignore that principle and assert which the court can't distintinguish between two things its reasoning clearly distinguishes between.

Posted by: aphrael on May 16, 2008 at 6:31 PM | PERMALINK

I don't see how the issue in the case here (not your hypotheticals, which are irrelevant) is any less specifically addressed in the California Constitution than the issues in Loving v. Virginia or Brown v. Board of Education were in the U.S. Constitution.

The US Constitution explicitly prohibits discriminating on the basis of race. The California Constitution does not explicitly prohibit discriminating on the basis of sexual orientation.

I'm *not* saying the court's three-factor analysis for determining whether a classification is suspect under the state equal protection clause is wrong. I'm merely observing that discrimination on the basis of sexual orientation is not mentioned in the constitution with anything approaching the same specificity as discrimination on the basis of race.

Posted by: aphrael on May 16, 2008 at 6:34 PM | PERMALINK

Given your numbers, my guess is that it comes down to the wording on the ballot. On any measure, "No" has a built-in advantage. If I understand it correctly, a Yes vote will define marriage as between a man and a woman, and the "No" advantage may be enough to push it over the line.

Posted by: Wrongshore on May 16, 2008 at 7:32 PM | PERMALINK

David,

Just so you know, first cousins can already marry in CA and many other states. So that certainly won't be brought to the CSC anytime soon.

As to being under the age of consent, plenty of argument to be made that the state has a compelling interest.

Certainly some religious groups and others might have an interest in challenging laws against bigamy. I imagine some courts have ruled on such things though perhaps not the CSC. It clearly represents a much smaller minority interest though and new laws regarding group marriage would have to be established even if the right to the option was found by the Court.

I realize these topics were brought up in the Dissenting Opinion but they all strike me as rather weak slippery slope-type fallacious arguments.

Posted by: cthulhu on May 16, 2008 at 8:00 PM | PERMALINK

McCain rails against Judicial activism, and this decision will play a major role in the 2008 campaign. Isn't it amazing that the majority of the Judges that made this decison were appointed by the GOP. So much for strict constructionist.

Posted by: aline on May 16, 2008 at 8:36 PM | PERMALINK

McCain rails against Judicial activism, and this decision will play a major role in the 2008 campaign. Isn't it amazing that the majority of the Judges that made this decison were appointed by the GOP. So much for strict constructionist.

Posted by: aline on May 16, 2008 at 8:36 PM | PERMALINK

cthulhu, aphrael, and cmdicely have made some good arguments. The one that most shows how my Point of View differs is this one: "I would argue that as long as the argument can be reasonably grounded in law and precedent, the court is not "legislating from the bench" simply because it interprets that law and precedent differently than I would."

For me, this gives the SC too much latitude. Many cases can be reasonably decided either way, grounded in law and precedent. Certainly a decision upholding California's ban on gay marriage could easily have been grounded in law and precedent. IMHO the SC should overturn laws only when the Constitution says they must, not they may.

The most difficult argument for me to respond to is: "Would you say the Brown or Loving court, (or the California Supreme Court in Perez v. Sharp, invalidating state laws on interracial marriage on State Constitutional grounds considerably before the U.S. Supreme Court did so on federal Constitutional grounds in Loving) was "legislating from the bench"?

I think these were all proper decisions (although I think the SC had better grounds for deciding Brown as they did, rather than rely on the fallacious theory that segregated schools were automatically inferior.) I think these cases were different from the gay marriage case because:

Brown: The "equal protection" of the Constitution should prohibit sending black children to inferior schools. Also, the 13th, 14th and 15th Amendments showed that the Constitution had a particular interest in protecting blacks.

Racial intermarriage: This appears to be a close parallel to gay marriage. The difference is that racial intermarriage was widely accepted throughout most of the United States and the rest of the world back throughout history. Gay marriage OTOH was accepted in just one state, where it was forced on the people by the court. And, it was not accepted in most other countries today or historically.

Posted by: David on May 16, 2008 at 8:37 PM | PERMALINK

"The difference is that racial intermarriage was widely accepted throughout most of the United States"

No. The polls at the time showed the exact opposite of this. A sizable majority strongly opposed interracial marriages. The analogy is apt.

Posted by: PaulB on May 16, 2008 at 10:26 PM | PERMALINK

PaulB, let me be more precise. Interracial marriage was legal in most jurisdictions in the US.

Posted by: David on May 17, 2008 at 12:24 AM | PERMALINK

PaulB, let me be more precise. Interracial marriage was legal in most jurisdictions in the US.

??? No it wasn't, not during Perez v. Sharp, which is the more germane comparison to this case as it involved the California State Supreme Court. At that time miscegenation was illegal in most jurisdictions in the U.S., as well as wildly unpopular with close to 100% of whites as long as a decade later.

Try again.

Posted by: trex on May 17, 2008 at 12:52 AM | PERMALINK

It won't matter if California amends it's Constitution to ban gay marriage via an initiative measure, since the Democrats of California have already discovered the means to game the judicicial system to nullify any initiative the Democrats don't like, just like the way the Democrats killed proposition 187.

Proposition 187, which passed by a very large margin, banned State benefits of various types such as welfare to any illegal immigrant. So how is that Prop 187 was killed by the courts wheras even stronger measures in Arizona were upheld? It's quite easy really.

Step one is to challenge the proposition in Federal court with a somewhat plausible legal arguement. The most important part of that challenge is to very carefully file the case so that only a judge with a known bias in favor of your position will hear it. Predictably enough that judge will rule in your favor and strike down the prop. Now comes the fun part!

Ordinarily it is then up to the State government to appeal the case to a higher court. It's what State governments are supposed to do -- defend the laws of the State. But not when Democrats are running things, that's the fun part. So instead, the State refuses to appeal the case and therefore the proposition dies! Just like proposition 187 died.

Such integrity those Democrats have.

Posted by: Brad on May 17, 2008 at 9:09 AM | PERMALINK

Brad: "So how is that Prop 187 was killed by the courts wheras even stronger measures in Arizona were upheld? It's quite easy really. ... Such integrity those Democrats have."

Jesus H. Christ. Look who the fuck is talking, you moronic, hate-mongering right-wing bigot.

You blatantly mischaracterized the nature of Proposition 187, a completely irrational and fear-driven piece of legal excrement which would have otherwise punished in a very punitive manner those children who were born in this country and thus citizens, with the sole criterion for doing so being their parents' lack of proper documentation at the U.S. State Department. And it wasn't just an exclusion from eligibility for public financial aid, but also health care and public education, too.

You can't just retroactively strip children of inherent rights afforded to them as U.S. citizens by our Constitution, you asshole, simply because you don't like Mexicans.

And THAT'S why Proposition 187 was struck down by the courts, and why appellate courts subsequently and repeatedly upheld the original judicial decision.

The very fact that I, a gay man, feels compelled to defend innocent children from the likes of mentally-deranged political mutants like yourself, pretty much renders you nothing more than a worthless piece of slime, and a major fucking embarrassment to this country and everything for which she ostensibly stands.

Posted by: Out in Pasadena on May 17, 2008 at 10:02 AM | PERMALINK

"You can't just retroactively strip children of inherent rights afforded to them as U.S. citizens by our Constitution, you asshole, simply because you don't like Mexicans."

"And THAT'S why Proposition 187 was struck down by the courts, and why appellate courts subsequently and repeatedly upheld the original judicial decision."

Hmm... so are you a liar or just a fool? Anyone who spends five minutes googling can prove to themselves how you have mischaracterized prop 187 and the battle in the courts over 187.

http://en.wikipedia.org/wiki/Proposition_187

Prop 187 did not strip children citizens of anything, and because it didn't that was not the legal theory by which a lower court struck down prop 187. Instead the legal theory was that prop 187 interferred in the Federal governments jurisdiction over border control. The lower courts decisision was never heard by a higher court because Democratic Governor Gray Davis deliberately failed to appeal the case. The same legal theory was used to challenge anti-illlegal alien measures in Arizona but without success because the same kind of Demcratic skullduggery did not happen in Arizona.

Posted by: Brad on May 17, 2008 at 6:18 PM | PERMALINK

Instead of gay friendly, I would suggest that the public has become more tolerant. There is a difference, I think. Gay friendly essentially means one would actively support and accept the lifestyle. Tolerant means people are respectful of the law and extend that to people who deserve to be protected under the law regardless of their background. While let me quickly interject that I actively support rights for gays because they deserve it, I think I know several people who are indifferent to gay people but would nonetheless support their right to marry, etc.

Posted by: Vincennes on May 17, 2008 at 10:26 PM | PERMALINK

"PaulB, let me be more precise. Interracial marriage was legal in most jurisdictions in the US."

As noted above, it was not, not really. At the beginning of the 60s, when this national conversation truly began, roughly half of the states still had anti-miscegenation laws, the vast majority of which were still in place when the Supreme Court overturned them in its Loving v. Virginia ruling.

The arguments used against interracial marriages are exactly the same arguments used against same-sex marriages, up to and including railing against "activist" judges, calls for a Constitutional amendment, invoking religion, references to polygamy, bestiality, incest, and the like, and so on and so forth, ad nauseam.

The next time you choose to discuss this issue, please do your homework first.

Posted by: PaulB on May 18, 2008 at 4:54 AM | PERMALINK
PaulB, let me be more precise. Interracial marriage was legal in most jurisdictions in the US.

Sure it was widely, if not in a majority of jurisdictions, accepted in the US at the time of Loving in 1967, precisely because states had, either by legislation or by judicial action, such as the Perez v. Sharp decision of the California Supreme Court in 1948, legalized interracial marriage. But that's hardly an argument against the propriety of the California Supreme Court action at issue in this discussion, since that action is precisely parallel to the action it took in regard to interracial marriage. While its possible to disagree with in re Marriage Cases and agree with the decision in Perez v. Sharp, its pretty hard to characterize the former as "legislating from the bench" but not do so for the latter, using any reasonable definition of "legislating from the bench".

Posted by: cmdicely on May 18, 2008 at 11:35 AM | PERMALINK

PaulB and cmdicely, thank you for researching the number of anti-miscegnation laws when the SC banned them.

However, I don't see how your facts support your conclusion. Half the states allowed interracial marriage whereas just one state allows gay marriage.

Neither of you responded to the point that interracial marriage was allowed in many jurisdictions throughout history, whereas gay marriage was not.

Also, the Constitution's 13th, 14th and 15th Amendments made it clear that blacks were to be treated equally. Gays are just as desering of equal treatment as blacks, but there's nothing in the Constitution about sexual orientation.

The Court's reasoning could have been used to justify bigamy. The decision to allow gay marriage but not bigamy is a political one. That's why I think it should properly be made via the political process.

Posted by: ex-liberal on May 18, 2008 at 2:11 PM | PERMALINK

However, I don't see how your facts support your conclusion. Half the states allowed interracial marriage whereas just one state allows gay marriage.

Uh, this was in response to your false claim that "most" states allowed interracial marriage. Prior to the Perez decision a minority of states allowed interracial marriage.

Strike one for you.

Secondly, you make a claim that interracial marriage was "widely accepted throughout most of the United States and throughout history." This is PATENTLY false. On the contrary, interracial marriage was UNIVERSALLY BANNED in the U.S. from colonial times until about the time of the Civil War, when the first laws allowing it began to appear on the scene in scattered jurisdictions.

Strike two.

As for interracial marriage being widely accepted throughout history in other cultures, this is not only irrelevant to the American experience and legal system (global tests, anyone?) but it isn't even true. There are no hard and fast numbers, but throughout most of world history preserving cultural purity by discouraging marriage with outsiders has been the rule, and not the exception.

Strike three.

You may also want to take a look at an overview of the same-sex unions throughout history that you claim never happened - you bozo.

Posted by: trex on May 18, 2008 at 3:49 PM | PERMALINK

trex, same-sex unions were already legal in California, as they should be. The recent Court decision involved same-sex marriages. Your wikipedia cite does not show widespread use of same-sex marriages in various cultures.

Posted by: David on May 18, 2008 at 4:32 PM | PERMALINK

trex, same-sex unions....

No you moron, you don't get to ignore all the points you've been rebutted on and point to something else to pretend you have some footing in this discussion when, in fact, you do not. You want to have an honest debate? You acknowledge every point you've been wrong on and adjust your argument accordingly to the point of admitting your position is without basis.

Otherwise you are just an idiot trolling a blog.

Further, the wikipedia article explicitly cites examples of same-sex marriage in different cultures. You have serious reading comprehension issues.

Posted by: trex on May 18, 2008 at 11:03 PM | PERMALINK

Hispanics made up only 7% of the California electorate in the March 2000 election that banned gay marriage, and they voted 65% to ban it. Whites were 81% (and voted 58% against gay marriage), because non-whites don't vote much in California primaries -- they come out in much larger numbers for Presidential elections and other big news elections.

Latinos will be a _much_ larger percentage of the Nov. 2008 electorate and they won't be much more favorable toward gay marriage.

Well, that's diversity for you ...

Here's the 2000 exit poll:

http://www.latimesinteractive.com/pdfarchive/state/la-000309exitpoll-439grph2.pdf

Posted by: Steve Sailer on May 19, 2008 at 3:59 AM | PERMALINK




 

 

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