Same-sex marriage legalized in California

In a decision that will have obvious consequences on the presidential race, the California Supreme Court rejected state marriage laws as discriminatory, making California the second state in the country after Massachusetts to legalize same-sex marriages.

The ruling was closely divided, 4 votes to 3, but this is a moderately conservative court, dominated by Republican appointments (6 to 1). An appeal is expected to the federal Supreme Court but they have never taken up the issue of gay marriage and it is unlikely they will do so now. Thus there is nothing to stop licenses from being issued later this spring. Note that California already had a domestic partnership program that was among the most ambitious in the country, as it granted pretty much all marriage rights to gay couples.

Opponents are already gearing up for a showdown at the polls to pass a constitutional amendment banning gay marriage in November -- though even that will be too late to stop the marriages that will take place until then. A coalition of religious and conservative groups had already submitted a petition to place the issue on the fall ballot; the petition is being currently reviewed by the Secretary of State's office. 763,790 signatures out of 1,1 million have to be valid, and past rates of signature validity don't guarantee that this one will make it.

Predictably, Republican leaders are enraged against these "activist judges." Rep. Roy Blunt, who is high up in the GOP's House leadership, issued a statement lamenting that "the decision of unelected judges to overturn the will of the people of California on the question of same-sex marriage demonstrates the lengths that unelected judges will go to substitute their own worldview for the wisdom of the American people." He added that "these California values are not the values of the majority of the American people."

But the GOP is in a bind here. First, these California judges are confirmed by voters -- so they are dependent on the democratic process. Second, the California legislature twice passed a law legalizing gay marriage; twice Governor Schwarzenegger vetoed the bill saying that the matter should be settled by the judiciary and that the matter was already making its way through the courts. That's not going to stop Republicans from denouncing the activist judges, but the fact that the state's Republican governor declined to listen to the legislature and asked the court to rules makes their argument weaker. To his credit, Schwarzenegger did not criticize today's decision and stated that, "As I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

The presidential campaigns, meanwhile, have stayed largely silent on this issue today. Today's ruling brings back the debate over same-sex marriage in the political discussio; it had largely faded since 2004. That year, George Bush benefited from two factors: (1) Discussion of gay marriage made values and social issues crucial to the campaign and (2) a bunch of states passed constitutional amendments that Republicans helped put on the ballot to boost conservative turnout. It has been debated whether these referendums actually changed turnout rates and helped Bush that much, but there is no question that heavy discussion of those issues did not help John Kerry.

This year is likely to be different, however. For one, gay marriage is already less polarizing than it was 4 years ago. Arizona rejected a constitutional marriage amendment in 2006, South Dakota almost did the same. Schwarzenegger's opposition will make it even more difficult for conservatives to win the battle. It is true that anything that will drive conservatives to the polls will be welcome by McCain considering that his campaign is worried the most die-heart conservatives will be reluctant to support him, but I remain skeptical that this will impact the field of battle in California.

Second, gay marriage is unlikely to make that successful a comeback at the national level as well for the simple reason that John McCain is reluctant to campaign on any social issues, let alone gay marriage. If he rarely brought up abortion during the primary -- though this was the one issue on which he had the most conservative record, he is even less likely to campaign on gay marriage in the general. After all, he voted against the federal marriage amendment when it came up in the Senate a few years ago. Also, Democrats are much less shy about the issue than they were in 2004, when Kerry shockingly said that he would vote in favor of the Missouri anti-gay marriage amendment if he were a Missouri resident. Both Obama and Clinton are stronger on gay rights this time, testifying to the change of climate just in the past 4 years.

Update: It looks like the new conservative strategy is the constant deferral of the decision from the legislative to the judiciary power. Here is how the New York Times describes the dissenting opinion in today's ruling:

Justice Marvin R. Baxter, dissenting, said the majority had should have deferred to the state Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years.

“But a bare majority of this court,” Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves.”

Given that the legislature had legalized gay marriage, bills that had been vetoed because the Republican governor said he wanted to defer to the state Supreme Court, it's hard to make any sense of Justice Baxter's prescription.