Now you can add same-sex marriage to the long list of things that Californians have turned into an incoherent mess.
With Tuesday’s California Supreme Court decision upholding Proposition 8’s gay-marriage ban—and the marriages of those couples who tied the knot last year while gay marriage was legal—California finds itself in a very strange place, matrimonially speaking.
Ours is the only state that has both an iron-clad constitutional ban on same-sex marriage and thousands of gay couples whose marriages have full constitutional protection. Once again, the state is—as the writer Carey McWilliams first declared 60 years ago— “the great exception.”
Ours is the only state that has both an iron-clad constitutional ban on same-sex marriage and thousands of gay couples whose marriages have full constitutional protection.
A great, exceptional, dysfunctional basketcase that is.
So when the discussion turns to what’s next for the cause of same-sex marriage, the answer ought to be: Get out of California, as fast as you can.
Yes, you’ll soon hear lots of talk about how to undo today’s court decision and Prop 8. The obvious path is a ballot initiative that would amend the constitution to legalize same-sex marriage. Politically, with polls showing young people supporting same-sex marriage (and with the over-65 crowd, which opposes same-sex marriage, shrinking in number because of actuarial tables), winning an initiative in California would seem like a sure thing.
But these days, nothing is ever easy in California.
For one thing, any ballot initiative to overturn Prop 8 would likely face court challenges. And even if such a measure passed, opponents of gay marriage could return to the ballot again and again to reverse that verdict. This cycle of ballot initiatives and court decisions could continue in California for a decade.
For another thing, there’s a disturbing lack of consensus among same-sex marriage supporters about the best way to overturn Prop 8. Should such an initiative be placed on the next statewide ballot in 2010, or should they wait until 2012, thus providing more time for minds to change (and for more of those older, same-sex marriage opponents to die)? Should an initiative to overturn Prop 8 include specific “religious freedom” clauses so that churches and clergy don’t have to recognize civil same-sex marriages? Or would that be discrimination, and something less than marriage equality?
Same-sex marriage supporters are debating these matters. And given the experience of the “No on Prop 8” campaign, which was undone in part by internal disputes, there’s reason to worry about the ability of same-sex marriage supporters to find a smart, coherent strategy for overturning Prop 8.
One potential threat comes from liberals who foolishly cling to the idea of not only overturning the Prop 8 ban, but also ending the concept of legal, civil marriage all together. They want to “get government out of the marriage business” and make domestic partnership the standard for gays and straights. This is a terrible idea politically (it would undermine support for same-sex marriage among secular straights, who are some of its strongest supporters) and as a matter of policy (marriage really is central to our law and culture, and it’s a civil as well as a religious institution).
Nevertheless, supporters of this antimarriage position have filed a ballot initiative that could compete with an initiative to overturn Prop 8. If both measures go forward, voter confusion would result, and it’s likely each initiative would lose.
What to do? As a strategic matter, same-sex-marriage supporters should leave California to the Californians. The state is on the way to being a national joke that needs federal loan guarantees to pay its bills, so a political victory here may not be that impressive to the rest of the country. It’d be far better for the marriage-equality cause to focus their energies and financial resources elsewhere, with the goal of legalizing same-sex marriage nationally as quickly as possible.
To do that requires repealing the federal Defense of Marriage Act, which bars U.S. recognition of even legal same-sex marriages in the New England states and Iowa. But President Obama and Congress are likely to drag their feet on repeal until same-sex marriage has even more momentum.
How to create momentum? Same-sex-marriage supporters should pick fights in a state that could host a de facto national referendum on the issue.
My suggestion: Ohio or Colorado. Or maybe both. Each state is a classic swing state and battleground in presidential contests. Each has the initiative process, which would allow gay-marriage supporters to draft and qualify a constitutional amendment for the ballot without interference. By winning an initiative fight in either, same-sex-marriage supporters could argue that the people had rendered their final verdict on the matter.
Colorado is a particularly attractive target in a “take the fight to your enemy” sort of way. The state has a relatively high number of Mormons (who provided considerable financial and institutional backing for Prop 8 in California), and Colorado Springs serves as an unofficial national headquarters for evangelical organizations. (Focus on the Family, among others, is based there.)
A victory for an initiative in Colorado would end all suspense about the outcome of this public debate. With such a win in hand, other states and Congress would soon fall in line. And California’s strange, mixed-up verdict on same-sex marriage would be forgotten, as it deserves to be.
Joe Mathews is a journalist, an Irvine senior fellow at the New America Foundation, and a contributing writer at the Los Angeles Times. He previously served as Justice Department reporter for The Wall Street Journal and as a city desk reporter at the Baltimore Sun. He is the author of The People’s Machine: Arnold Schwarzenegger and the Rise of Blockbuster Democracy.