Eight years ago, 4,618,673 California voters--61 percent of those casting ballots--approved an initiative that stated: "Only marriage between a man and a woman is valid or recognized in California." Last Thursday, four of the seven justices of the California supreme court struck down that law, ruling that it violates the "fundamental constitutional right to form a family relationship."
California chief justice Ronald George, writing for the majority, declared that "an individual's sexual orientation--like a person's race or gender--does not constitute a legitimate basis upon which to deny or withhold legal rights" and therefore "the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."
"It looks like a fairly conventional liberal judicial activist decision," says Princeton professor of jurisprudence Robert P. George. "These guys had the votes, and they rammed it through. They don't regard the will of the people of California as worthy of their particular concern."
Like the Massachusetts supreme court, which redefined marriage contrary to the will of the people in 2004, the California court has thrust the issue of same-sex marriage upon the nation in the midst of a presidential race. Within hours of the decision, Barack Obama's campaign issued a statement saying that the candidate
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.
Then the McCain camp fired back:
John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona. John McCain doesn't believe judges should be making these decisions.
By supporting the court's decision, Obama exposed a number of vulnerabilities. McCain might ask, What exactly would preclude the U.S. Supreme Court, refreshed with a couple of Obama appointees, from declaring same-sex marriage a constitutional right in all 50 states? And if laws against same-sex marriage are just like laws against interracial marriage, as the California court declared, then what would stop the government from treating those who oppose same-sex marriage like racists?
Indeed, says Professor George, the next logical step will be to use "antidiscrimination laws as weapons" primarily against religious institutions and individuals who refuse to recognize same-sex marriage. In the eyes of the law, George says, they'll be "treated as bigots." For example, after the Massachusetts same-sex marriage decision in 2004, Catholic Charities shut down its adoption services rather than comply with a government order to place children with same-sex couples.
In California, conflicts between religious liberty and gay rights have already reached the courts. In a case to be heard May 28 by the California supreme court, two Christian doctors are being sued for refusing to artificially inseminate a lesbian, and last summer four firefighters sued the city of San Diego on sexual harassment grounds after they were required to participate in a gay pride parade over their objections. How would California deal with doctors who refused to treat an African American? Revoke their licenses. How would San Diego treat firefighters who objected to marching in a Martin Luther King Jr. parade? Fire them.
A voter initiative on marriage in California--to amend the state constitution with wording identical to the 2000 measure--appears to have enough signatures to make it onto this November's ballot. Such an amendment would trump last week's decision. Prior to the ruling, the state of California already provided virtually the same tangible benefits and legal rights for same-sex domestic partners as for husbands and wives, so the debate in California may focus on the threat that the court's decision poses to religious liberty.
A strong enough voter backlash in California has a chance of putting the state's electoral votes in play: A Rasmussen poll in April showed McCain trailing Obama by 7 percentage points. The issue could also bolster McCain's support in Florida--the only other state with a marriage amendment on the ballot this year--where a RealClearPolitics average of polls shows McCain leading Obama by nine points.
There's no guarantee, however, that either of these initiatives will pass or necessarily have a spillover effect in McCain's favor. Though 27 states have passed marriage amendments to their state constitutions, 2006 saw the first defeat by the voters of such an amendment--in McCain's home state of Arizona. That same year, Colorado gay rights activist Tim Gill gave $15 million in political donations and organized activists to donate millions more, mostly to defeat state legislators who oppose same-sex marriage. Now, same-sex marriage proponents are planning to flood California with campaign cash. Brian Brown, executive director of the National Organization for Marriage, the fledgling organization leading the fight for this fall's marriage amendment in California, estimates that their campaign will need at least $10 million to succeed in a state with some of the most expensive media markets in the country.
Though McCain caught flak from social conservatives in 2004 for opposing a federal amendment defining marriage as a union between a man and a woman, Brown says that McCain's speaking out in favor of the California initiative and articulating his judicial philosophy in this context would resonate with voters.
But it will be up to McCain himself to draw the contrast between his positions and Obama's. The media are content to say that the candidates "are pretty much in agreement" on marriage, as the New York Times reported, since both favor legal protections for same-sex couples and oppose same-sex marriage as well as the federal marriage amendment.
McCain opposed the federal amendment partly because the federal Defense of Marriage Act--which McCain supports and Obama opposes--already defines marriage as between a man and a woman; it also says that a state is not required to recognize same-sex marriages performed in other states.
In light of the California court's ruling, McCain may be more open to supporting a federal amendment, which would prevent either state or federal courts from redefining marriage, though it's unclear whether he's considered such a move to forestall judicial activism. What's certain is that the ballot initiative this November in California--where one out of every eight U.S. citizens lives--will keep this issue alive whether the candidates like it or not.
John McCormack, a Collegiate Network fellow, is an editorial assistant at THE WEEKLY STANDARD.