The Battle for Same-Sex Marriage in California

Andrew Koppelman, in the blog Balkinization, recently discussed efforts to bring same-sex marriage to California. In his post Bad same-sex marriage strategy in California
(Tuesday, November 13, 2007, 11:01:29 AM Andrew Koppelman), Koppelman states his fear that a pending lawsuit before the California Supreme Court challenging Proposition 22, a law initiated by ballot initiative in 2000 ("Only marriage between a man and a woman is valid or recognized in California"), and seeking a ruling that same-sex marriage is required by the state constitution, may actually energize opponents of same-sex marriage and put in jeopardy even the decent domestic partnership laws already in place there.

This sounds a little familiar to those of us here in Massachusetts, but the roles now being played by citizens, the legislature and the judiciary in California are quite different from those that were played by their counterparts in Massachusetts. In California, so far it has been the legislature that has voted for same-sex marriage, only to be held back by the citizen initiative (Proposition 22) and Governor Schwarzenegger (through his vetoes), and the California Supreme Court has not yet been heard. Here in Massachusetts, it was our Supreme Judicial Court that created same-sex marriage, in the face of a divided, and relatively passive, legislature, and with no threat from any ballot initiative like that of California.

It should be interesting to see what ultimately happens in California.

"I just spoke on a panel in San Francisco, with a group of activists supporting same-sex marriage. (I’m also a supporter, and defend my views here.) Afterward the panelists had some conversations about what’s been happening in California, and they explained their current strategy to me. I came away convinced that my allies are out of their minds.

Last month, the legislature for the second time passed a bill legalizing same-sex marriage in California, and the bill was vetoed for the second time by Governor Schwarzenegger. The governor argued that the bill was inconsistent with Proposition 22, a law enacted by ballot initiative and approved by a landslide 61 to 39 percent in March 2000, which states, "Only marriage between a man and a woman is valid or recognized in California."

Same-sex marriage proponents are now pinning their hopes on a lawsuit, now pending before the California Supreme Court, arguing that the initiative law is unconstitutional and that same-sex marriage is required by the state constitution.

All of the proponents with whom I spoke, including Assemblyman Mark Leno, the author of the marriage bill, acknowledged that if they win in court, it will certainly energize the other side and lead to a new ballot initiative that would outlaw all legal recognition of same-sex relationships in California. This would be a very big deal, because California now has one of the strongest domestic partnership laws in the country, giving same-sex couples all of the rights of heterosexual married couples except the name...."