California Gays May Continue Marriage Fight Even After Supreme Court Ruling

The fight over legalizing gay marriage in the most populous U.S. state may go back to the ballot box in 2014 with California voters asked once again to settle the matter even after the U.S. Supreme Court’s expected ruling this month on the issue.

Experts believe the top U.S. court is unlikely to proclaim a national right to same-sex marriage in its decisions. The court is set to rule on a challenge to California’s ban on same-sex marriage and on a provision of federal law denying certain benefits for married same-sex couples.

At issue is California’s 2008 prohibition on same-sex marriage, known as Proposition 8. Lower federal courts struck down the ban, and a high court majority appears likely to rule in a way that would affect only Californians.

A vast array of legal issues, from the procedural question of who can legally defend a ballot proposition to more consequential questions of states’ rights, leaves room for continuing uncertainty over the fate of Proposition 8. That has prompted each side to prepare a Plan B.

California could help to shape the national agenda again.

California voters in 2008 ended a summer of court-approved gay marriage by adopting Proposition 8. The proposal, backed by 52 percent of voters, changed the state constitution to define marriage as between a man and a woman.

That enraged and energized the national gay rights movement while offering social conservatives proof that their message resonated even in a state known for its liberal leanings.

For gay marriage supporters, buoyed by laws permitting gay marriage in now 12 of the 50 states and the District of Columbia, a California ballot initiative would be a chance to recover from their biggest loss.

For gay marriage opponents, it would be a chance to regain momentum.

“It’s the biggest state in the union. It is a state that has twice voted for traditional marriage, and if we were able to prevail here, I think it would be an incredible feat, and would certainly cut the legs out from the inevitability argument,” said Frank Schubert, who led the 2008 campaign to pass the ban.

2014 Election Goal
Social liberals, who are among the biggest supporters of same-sex marriage, generally turn out to vote most in presidential elections, which would suggest the best time to challenge Prop 8 would be November 2016.

But state gay rights groups don’t want to wait, and they universally predict that if the need arose, they would fight at the ballot box in November 2014 when Americans hold midterm Congressional elections and California elects a governor.

“I’ve been talking to a lot of people in the donor community and outside the donor community,” said John O’Connor, the new head of Equality California, the group which led opposition to Prop 8. “There is a sense of readiness,” he said. Groups are ready to launch a coalition, he added.

The 2008 pro-gay-marriage campaign was generally seen as lacking a clear message, ignoring minority groups and bedeviled by complacency that gay marriage support was assured.

“The lessons of Prop 8 have been learned. The lessons of victories have been internalized,” said Kate Kendell, executive director of the National Center for Lesbian Rights.

An Equality California poll this month found 55 percent of likely voters favored gay marriage. However, that is no guarantee; a Field Poll from September 2008 showed 55 percent of likely voters would oppose the Prop 8 ban. Less than two months later it passed.

Schubert is concerned about same-sex marriage supporters’ recent fundraising success. “We can’t go through another year like we did last year where we get outspent four to one,” he said.

The 2008 ballot fight was one of the most expensive in state history, costing more than $80 million, with both sides raising more than $40 million in 2008.

Both sides aim to reach out to faith groups and minority groups, which are especially important in diverse California, and to do so early on. In fact, California groups have been doing grassroots support-building since 2008, in particular aiming to get gays and lesbians to discuss marriage with straight friends and family.

Gay marriage supporters signal they will seek to avoid a long million-dollar signature-gathering campaign to get an initiative on the ballot. Instead they hope Democrats will use their supermajority in the state legislature to put a constitutional amendment on the ballot.

Reporting by Peter Henderson; Editing by Howard Goller and Cynthia Osterman

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