California marriage equality: not yet . . . again.

California is at war with itself over gay marriage. For those who may not have been following this issue, here are the basic facts:

1977: From 1850 until 1977, California marriage laws were gender neutral, a contract between two people. In 1977 the legislature defined marriage as "a personal relation arising out of a civil contract between a man and a woman."

2000: In 2000, voters passed ballot initiative Proposition 22 with 61% of the vote, which enacted a law that defined marriage in California as a union between a man and a woman.

2004: San Francisco mayor Gavin Newsome, in defiance of what he considered an unconstitutional and discriminatory law, ordered marriage licenses to be issued to same-sex couples. These nearly 4,000 marriages were later annulled by the CA Supreme Court upholding the law, as it was then written.

2005: CA legislature passed a law recognizing same-sex marriages. Governor Schwartzenegger vetoed it. Again in 2007 the legislature passed a similar bill and again the Gov. vetoed it.

2007: In the fall of 2007, a valid petition by voters put Proposition 8 on the November 2008 ballot. The operative phrase was "only marriage between a man and a woman is valid or recognized in California," the same as in Proposition 22. But, whereas Prop22 was for a statute, which could be ruled unconstitutional, Prop8 was for a constitutional amendment which could not.

May 2008: CA Supreme Court ruled that the statue put into effect by Prop22 was unconstitutional, thus granting full marriage rights to same-sex couples, which began in June 2008. Some 18,000 couples married between June and election day.

Nov 2008: Prop8 passed by 52% to 48%, thus nullifying the May 2008 Supreme Court decision. It officially changes the California Constitution to eliminate the right of same-sex couples to marry. There had been a massive, $60 million campaign to pass the measure, launched by Mormon and Catholic religious organizations. Their advertising included misinformation and scare tactics to inflame emotions.

To get on the ballot, a voter initiative requires simply a petition of voters equal to 8% of the number who voted in the last (2006) election of governor. This process completely bypasses the state legislature.

Legal challengers are claiming that, because this takes away a right that same-sex couples had been granted by court decision in its interpretation of the Constitution, it in fact is not "amending" the constitution but "revising" it and therefore has the higher requirements of legislative approval. Obviously this would make a great difference, since the legislature has already twice voted to make same-sex marriage legal. This is unlikely to prevail, since courts turned down a similar argument to stop Prop8 from getting on the ballot. However, that might have been simply a procedural decision, based on not preempting a voter initiative. So it's worth trying.

There it stands. My own opinion about the process is that it makes no sense for it to be this easy to amend a constitution on such important issues. Why bother to have a constitution if a small percent of voter can put it on the ballot and a simple majority can adopt it? Usually it is made difficult to amend constitutions in order to avoid this kind of highly emotional campaign fervor leading to bad decisions. In Georgia, by contrast, it requires a supermajority of 2/3 vote of each house of the state legislature, followed by voters adopting it by a simple majority.

On the other hand, in this particular case, it also makes it equally easy to undo with another ballot initiative. In contrast, in Georgia, we will have to get our Republican majority legislature, both houses, to vote by 2/3 majority, to put it back on the ballot at some future date. In the foreseable future, that is highly unlikely, if not impossible.

Granted that many people oppose marriage equality for gays, while still being fully supportive of equality of rights and benefits, withholding only the benefit of "marriage" itself. Many people want to keep this distinction either from religious beliefs or because of not wanting to change what is such a tradition, feeling that it would somehow take something away from the institution of marriage as we have known it.

However, first I would offer the evidence that, in the three years experience in Massachusetts of gay and lesbian marriages, there has been no discernable effect on heterosexual marriages or on the institution itself. Second, I offer this anecdote to ponder:

In the 2004 flurry of gay marriages in San Francisco, first-in-line to get their license were the lesbian couple Del Martin and Phyllis Lyon, iconic leaders of the gay rights movement who had also been life partners for over 50 years. Their 2004 marriage was later annulled by the Court.

Just a few weeks prior to this, Britney Spears waked up one morning after a night of wild partying with an old high school boyfriend and discovered that, without quite meaning to, she had married him at a midnight ceremony in the 24 hour wedding chapel in Las Vegas. In the 52 hours that it took Britney's handlers to get it annulled, she was entitled to more than 1000 government benefits that are available to married couples but that were denied to Del and Phyllis.

Fortunately, Del and Phyllis had another opportunity to get married, which they did last August. And this time it was legal. Del died a few weeks later at the age of 87 of the cancer she had been battling. But she died legally married to her long time partner.

Britney's subsequent troubles with drugs, divorce, second marriage, drugs, second divorce, child custody battles, scuffles with police as she shuttled in and out of drug rehab, raises the question: who demeaned the institution of marriage: Britney or Del and Phyllis?

Ralph