The California Supreme Court's decision to uphold Proposition 8 was as expected as it was crushing to same-sex couples and those who support their right to marry. The ruling conformed with the court's historical reluctance to overturn constitutional amendments; the argument that Proposition 8 represented a more sweeping constitutional revision, requiring more than a majority vote to pass, always rested on shaky legal legs.
Yet the campaign supporting equal marriage rights for gays and lesbians is far from a total failure. It sparked a necessary if testy national conversation that almost certainly contributed to new marriage rights for same-sex couples in several other states over the last few months, and the possibility of laws that would do the same in three more, including New York. The court's decision invites supporters of equal marriage to try again, this time at the ballot box. In fact, given the strongly held opinions among their opponents, it's likely that attempts to grant and revoke marriage rights for gays will become an ongoing, expensive and wearying battle of initiatives for years to come.
The court's decision leaves California with a muddle of contradictory legalities. By upholding the marriages of the 18,000 same-sex couples who wed between June and November 2008, the justices deny the wording in Proposition 8 that asserts the state will recognize only heterosexual unions. Yet the court demurely declined to rule on whether marriages in other states during that time — which were legally recognized in California — would retain that status in the state.
The best way to reach legal clarity, as well as equal civil rights, would be nullification of Proposition 8 at the ballot box, a day that we fervently hope will come. Gay rights activists already have announced their intention to place a proposition on the 2010 ballot. They'd have an easier campaign, however, if they waited a few years. Polls continue to show that California voters are evenly split on the issue. That should change over time as today's teenagers, who favor equal marriage laws, become tomorrow's voters.
Same-sex couples always had a strong argument that they are due the same family status as everyone else. Marriage is a fundamental right under the state Constitution — or it was before Proposition 8 — that should not be denied to any group long targeted by discriminatory practices. What the pro-gay marriage campaign lacked weren't noble goals, but savvy political tactics. It failed to respond to the fear-mongering commercials aired by the pro-Proposition 8 camp, which were misleading but extremely effective. The new strategy doesn't sound like a big improvement — rallies in such "Middle America" cities as Fresno featuring actress Charlize Theron. People who consider such marriages immoral aren't going to care about Theron's opinions.
Civil rights groups should be focusing their time and money on reaching out to moderate voters with information that quells misdirected fears. Contrary to what the pro-Proposition 8 ads implied, no religious group ever lost tax-exempt status over refusal to perform same-sex weddings; gay marriage will not be forced into the California schools curriculum; and faith-based adoption agencies will continue to operate.
In spreading this message, they will have the assistance of everyday reality. Voters will see that moral decay does not set in among those states where same-sex marriage is legal. And though the 18,000 same-sex married couples in California have been stranded on a legal island, they too have an important role in demonstrating that granting gays the right to form families in no way threatens other Californians; rather, these couples strengthen the message that marriage is the foundation of family life.