Gay couples in California urged to rush to the altar

When the Supreme Judicial Court of Massachusetts opened the door to same-sex marriage in a decision five years ago, the smart money was on couples who moved fast. After the ruling went into effect in spring 2004, it seemed more than possible that the door would swing back shut on anyone who didn't hustle through it. At the time, voters in Massachusetts opposed gay marriage by a margin of 53 percent to 35 percent. Legislators vowed to scuttle the court's ruling by amending the state constitution.

A key distinction between Massachusetts and California is the process by which each state allows its court ruling to be overturned. When Massachusetts Justice Margaret Marshall issued the court's same-sex marriage decision in Goodridge v. Department of Health, she gave the Legislature 180 days to respond. Lawmakers then asked the court whether they could authorize same-sex unions rather than marriages. The court said no. Only then did the Legislature start working on a constitutional amendment to stop gay marriage. And according to state law, lawmakers had to vote twice, both chambers together and in two separate years, to reject the court's ruling. And even then, they would succeed only in getting their state constitutional amendment on the state ballot, where voters would have had one more chance to save gay marriage.

But the forces that protected the same-sex marriage ruling in Massachusetts—time, and a layered and intricate legislative process—don't apply in California. California voters can overturn the decision with a single vote. There is already an initiative on the November ballot that would amend the state constitution and scrap today's ruling: "Only marriage between a man and a woman is valid or recognized in California," it declares. There's a small chance of a flaw with the signatures needed to get the amendment on the ballot, one gay rights advocate told me today. But he acknowledged it was a slim one.

And so California is going to have a big gay-marriage fight in November. Gov. Arnold Schwarzenegger plans to stay out of it: "As I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling," he said in a statement issued today. Also in favor of the court's ruling, Eskridge points out, is the possibility that high turnout for Barack Obama will help pump up the number of pro-gay-marriage voters. Obama pulls in the youth vote, and young people poll far more strongly in favor of same-sex marriage than older people do. That's the optimistic scenario for gay-marriage supporters. The pessimistic one is that this ruling will hurt Democrats nationally in this presidential election just as the Massachusetts decision did in the last contest—and that it won't make it past infancy inside the state that gave birth to it, either. Massachusetts gave its gay-marriage ruling time to grow up a bit. The California craze for changing laws by ballot initiative won't.