The fight over gay marriage is not over in California, or anywhere
else in the U.S. Street protests dragged into the weekend in Los
Angeles and other Golden State cities, and legal challenges are already
asking the California Supreme Court to overturn the Nov. 4 statewide
vote on Proposition 8 that made same-sex marriage in California not
only illegal but unconstitutional. On Sunday, gay-marriage supporters
got an unexpected boost from Republican governor Arnold Schwarzenegger.
The term-limited governor had always opposed the amendment but had not
campaigned against it or come out in support of gay marriage. "They
should never give up," he said on CNN, referring to proponents of gay
marriage. "They should be on it and on it until they get it done." He
called the Election Day vote against same-sex marriage "unfortunate,
obviously, but it's not the end. I think that we will again maybe undo
that, if the court is willing to do that, and then move forward from
there and again lead in that area."
The legal challenge endorsed by the governor is a suit filed by the ACLU and other groups who allege that the referendum that won on Nov. 4 with nearly 53% of the vote
is invalid. "It would constitute a constitutional revision, not a
constitutional amendment and, as such, the California Constitution
provides that it may not be enacted by initiative," reads the request
for an immediate stay to stop Proposition 8 from becoming law. In
plainer language, what the suit says is that because the gay-marriage
ban so fundamentally alters the state constitution by taking away a
fundamental right from some citizens, the change should be viewed as a
revision instead of an amendment - and the California Constitution
requires that so-called revisions be passed by both houses of the
legislature before being submitted to voters. (See the Top 10 ballot measures.)
The request is directed at the same court that in May issued one of
the most sweeping declarations of fundamental gay rights in U.S. legal
history, making same-sex marriage legal by a 4-3 vote. The
Republican-dominated court could decide by the end of this week whether
to rule on the request for a stay or send it to a lower court first.
But whatever the merits of the legal challenge, the court will face
enormous pressure as it deliberates.
"If the California Supreme Court were to issue a ruling that would
invalidate the will of the people, the consequences for the court would
be momentous," the Rev. Albert Mohler told TIME over the weekend.
Mohler, president of the Southern Baptist Theological Seminary in
Louisville, Ky., and one of the nation's leading Evangelical voices,
called such a "usurpation" hard to fathom. Imagine, he said, how much
more controversial Roe v. Wade
would be now had the court issued the decision after more than half the
states had held statewide elections on the issue. "Tuesday's rulings
have made it much more costly for any court to reach a conclusion in
favor of gay marriage," he said.
The results on Nov. 4 were negative for advocates of gay marriage
outside California as well: citizens in Florida and Arizona also voted
to make gay marriage unconstitutional. The vote was overwhelming in
Florida, where voters favored Barack Obama in the presidential race but
still decided 63% to 37% to make marriage available to heterosexual
couples only. And in John McCain's home state of Arizona, voters
reversed course just two years after defeating a similar, if more
sweeping, ban on gay marriage.
California's vote was closer but not that close. Large numbers of
those who voted Democratic chose to limit marriage to straight couples.
They did so after a long campaign dominated by heavy spending from gay
rights advocates. The vote was the first to come in a state where gay
marriage had already been legalized. Some 18,000 couples wed before
Election Day, and public-opinion polls had shown that support for the
amendment trailed badly just days before the vote.
In a teleconference last week among more than 100 gay legal scholars
and others who support gay marriage, the mood was dour. "This has cast
a pall" over what had otherwise been a historic election on Nov. 4,
said D'Arcy Kemnitz, executive director of the National Lesbian Gay Law
Association. Longtime gay rights advocate Dean Trantalis of Fort
Lauderdale, Fla., and others on the conference call expressed concern
that the gay rights movement had become too focused on marriage, and is
now paying the price in other more critical areas. "Marriage was never
our issue," Trantalis said. "It was thrust upon us by the other side,
and they've done a very good job of beating us up over it."
The concern is that conservatives will use those same tactics -
statewide referendums aimed at overruling court decisions or rebuffing
reluctant legislators - to restrict other rights. In Arkansas, for
example, voters easily passed an initiative that did what state
legislators had refused to do: ban adoptions and even foster-parent
roles for unmarried couples, including gays. Now the state joins Utah,
Florida and Mississippi as a place where gay couples cannot adopt.
Trantalis and others are worried that even as the gay rights movement
continues to win court victories, those very victories may prompt
stronger and stronger backlashes, jeopardizing hard-won rights from
local governments and the workplace, including adoption and
On the Evangelical side, Mohler told TIME that religious
conservatives see the threat from the gay rights' agenda as much
broader than just an affront to traditional notions of marriage. "Full
normalization of homosexuality would eventually mean the end to all
morals legislation of any kind," he says, echoing the line of reasoning
made famous by Supreme Court Justice Antonin Scalia in his dissent in
the high court's 2003 decision striking down state laws that made gay
sex a crime. (See the Top 10 ballot measures.)
Advocates like Trantalis say gay activists should focus less on
marriage and more on simply building coalitions with politicians and
others who can be allies in the political process. "We have to really
blend in and show others that the LGBT people are no different than
real, ordinary, commonplace people," he said. "We go to the same jobs,
the same schools, and have the same God."
But such calls for joining the mainstream won't please everyone in
the gay community, many of whom feel that they should not have to look
and act like everyone else just to enjoy rights that an increasing
number of courts are saying are inherently theirs. And for gays in
California, who have had full marriage rights for the past six months,
giving up on marriage seems a lot like going backward.
Gay rights activists look at the newly elected Democratic majorities
in states like New York and see hope for expanding gay marriage despite
the setbacks on Election Day. New York governor David Paterson has been
an outspoken defender of gay marriage, and some hope to press the
legislature there to pass laws allowing it - though conservative
Democrats could well block such an effort. And while momentum may ultimately be on the side of advancing gay rights,
Mohler says the fight is moving from courthouses to living rooms. "Both
sides recognize this is now a battle for the hearts and minds of our
neighbors," he says.