Who knew the path to marriage equality would be such a roller-coaster ride? The California supreme court's epic decision on May 15 had gays and lesbians dancing in the streets. But that same day the LGBT leaders who won this fight were gearing up for a battle royal with social and religious conservatives. The stakes couldn't be higher. Anti-equality forces will field a voter referendum this November to strip marriage rights away. And with public opinion split almost right down the middle, that referendum could pass.
One strategy for swaying voters to our side is as simple as can be. Speaking to The Advocate amid the May 15 celebration, San Francisco mayor Gavin Newsom explained it this way: "With this decision comes a new reality, and it will be advanced, we hope, with tens of thousands of couples getting married between now and November." Here's his thinking: The more happy weddings they see, the less people will want to tear us apart.
If that's the case, then gay couples who get married in California this summer are taking an action that's as political as it is personal. Cary Davidson and his partner of 18 years, Andrew Ogilvie, understand that. Like many of the couples expected to declare their vows in this California marriage rush, Davidson and Ogilvie have already had a commitment ceremony. This time around, in lieu of gifts they're asking friends and family to contribute to the campaign to fight the initiative.
In an already remarkable year for political campaigns, no one knows just how the battle will unfold. But virtually everyone agrees that keeping marriage on the books in California is going to involve one of the most scorched-earth political showdowns in the history of the LGBT movement. If gay rights groups can win in the country's most populous state, both sides agree there will be a ripple effect nationwide. But if they lose at the ballot box after having won in the courts, the victory dissolves in a morass of legal questions. "Anyone who tells you what will happen," says Lawrence C. Levine, a professor at the University of the Pacific McGeorge School of Law in Sacramento, "doesn't know what they are talking about."
A Long and Winding Road
The pending ballot initiative got under way in October 2007 when Protect Marriage -- a coalition of social and religious conservative organizations -- filed paperwork to begin collecting the signatures that would put a voter referendum on the November 2008 ballot to amend the state constitution. In contrast to the size of the task (about 700,000 signatures were required), the ballot's intended edit to the constitution would consist of just 14 words: "Only marriage between a man and a woman is valid or recognized in California."
At the time no one could have known when the court would hear oral arguments -- or rule on the constitutionality of denying same-sex marriage in California. But Protect Marriage did know that, if it passed, the initiative would codify the court's ruling. If it failed, it would at least keep the gay marriage battle alive. That's why the $1.8 million that Protect Marriage spent on its signature-gathering campaign through March 30, 2008, seems worth it. The initiative's two largest donors -- the National Organization for Marriage, California; and Fieldstead and Co., the philanthropic organization of Howard Fieldstead Ahmanson Jr., sometimes called the "paymaster of the political right" -- account for $1 million of that total, according to state election records. Now that the initiative has qualified, Protect Marriage's fund-raising effort will go into high gear, says legal counsel Andrew Pugno: "It takes at least $10 to $15 million to communicate with the voters in California."
Equality for All -- the coalition of LGBT, civil rights, faith, choice, labor, and community of color organizations working to defeat the ballot measure -- knows that too. That's why, says Kate Kendell, executive director of the National Center for Lesbian Rights and a coalition member, Equality for All intends to match the opposition "dollar for dollar." To pull that off, it'll need to raise between $10 million and $20 million -- more than has ever been raised to fight a gay ballot initiative. (As we went to press, the Human Rights Campaign announced it would donate $500,000 to this enormous effort.)
Another Election, Another Initiative
Anyone at all familiar with California politics knows that the state is a hotbed of ballot initiatives. "Putting an initiative on the ballot to amend the California constitution is notoriously easy," says Kendell. "And battling such an amendment is outrageously time-consuming and expensive."
When Protect Marriage's signature-gathering began, Equality for All organized a "Decline to Sign" campaign to look out for improper signature-gathering and to educate voters about the initiative. Through this effort, says Geoff Kors, executive director of Equality California (a coalition partner of Equality for All), more than 80,000 supporters of same-sex marriage were identified who were not discovered before -- and who will be crucial in a win this November.
But Equality California also knew it would be nearly impossible to keep the initiative off the ballot. "Decline to Sign efforts are rarely mounted in California, because it is usually so easy to qualify a measure," says Kendell. "In a state that has almost 16 million registered voters, you can sneeze and generate over a million signatures. And p
they only needed 690,000 valid signatures to qualify the measure for the ballot."
Lambda Legal and other gay rights groups heard accusations that Protect Marriage took part in improper signature-gathering procedures. Such charges, however, are incredibly hard to prove in California because of the type of signature-gathering the state allows. Signature gatherers, explains Kristina Wilfore, executive director of the Ballot Initiative Strategy Center, a progressive think tank, often work for companies that drive them from city to city or state to state. So while you assume the people you see in front of the grocery store are collecting signatures because they care about an issue, that's an illusion. Often, it's just what they do for a living. And in states like California, where signature gatherers are typically paid by the signature rather than by the hour, it's easy to see there's an incentive to forge signatures or copy them from one petition to another.
What's more, California's privacy laws restrict access to the signatures. That's in contrast to states like Oregon, Florida, and Massachusetts, where the names are public information, which can help outside groups monitor the extent to which signature fraud occurs. (In California the secretary of state's office performs only a random check of names, unless the sample reveals irregularities that merit a review of all the names.) "It's shameful," says Wilfore, "that Californians don't have access to these petitions."
A Tough Fight
Both sides will be working hard to win the hearts and minds of California voters. Both will launch media-savvy, message-tested, multimedia campaigns. And both will likely use the state supreme court ruling as red meat to get their supporters out to vote.
"Our major theme," Protect Marriage's Pugno says, "will be that this is an opportunity for the voters to speak out against the judicial activism that occurred here, with the court going beyond its role as an interpreter of law to create new laws.
"I think the fact that the court has already ruled on this increases the likelihood of the marriage amendment passing," he continues. "In the absence of a court ruling, or if the court had upheld traditional marriage, it would be less clear that we needed this amendment.... Folks who support traditional marriage could have voted no, thinking it was unnecessary, but now they know they must vote yes or the court decision will be allowed to stand."
Gay rights groups, however, see it differently. They believe the court ruling puts the momentum on their side. "Having won, we have a much better shot at defeating the amendment," says Kendell. "For the next six months, everyone in California will have the experience of knowing gay people who get married. Just that day-to-day interaction is going to propel us toward defeating this amendment."
Gay rights groups also note how much attitudes about gay marriage have changed over the past eight years. In 2000, says Kors, when California voters passed Proposition 22 -- which changed the state's civil code by adding those same 14 words about recognizing only a marriage between a man and a woman -- it won by an overwhelming majority (about a 23-point margin, with 61.4% of the votes in favor, 38.6% against.) But since then, support for gay marriage has increased in the state, with the most recent poll findings, published in June 2007, showing a virtual dead heat (49% opposed to same-sex marriage, 45% in favor, and 6% unsure.) And since the initiative needs only a simple majority to win, it really is anyone's game.
The Alliance Defense Fund, one of the groups that argued against same-sex marriage, has filed a request for the court to stay its decision until after the November election. ADF's argument, says senior counsel Glen Lavy, is that if the initiative were to pass, the result would be legal chaos because it will be unclear not just in California but nationwide -- since couples from any state could marry here -- whether those out-of-state couples' marriages were still legal.
NCLR, the San Francisco city attorney, and others have filed a response, but many legal scholars think the court is unlikely to stay the decision. "The best their side can come up with is that, if the initiative passes, there will be some uncertainty about the status of the same-sex marriages that took place between June and November," says Levine. "And that doesn't seem that moving to me. It would also be rather remarkable, because the stay would be in conflict with the court decision," which was issued with complete knowledge that the ballot measure was in the works. As a result, most people right now believe the marriages will begin at the end of June.
Uncharted Territory
Overcoming the amendment would have a far-reaching effect. "If we win by even two or three percentage points," says Kendell, "this would be the last gasp of ardent antigay forces in the state."
But conflicting theories are flying as constitutional scholars and legal strategists try to wrap their brains around what might happen if the initiative passes. Legal scholars agree that if the measure were to win, its 14 simple words would theoretically override the court's nuanced 121-page decision. Here's why: The court's ruling in May was possible because there was nothing in the state constitution to keep same-sex couples from marrying. By inserting prohibitive language in the constitution, the initiative would alter the groundwork the court used to make its ruling. With the groundwork changed, the decision would not stand.
At least that's usually how it works. But according to Beth Hillman, a professor at University of California Hastings College of the Law in San Francisco, this situation is unprecedented. No state has ever passed a constitutional amendment to ban same-sex marriage after the court has granted same-sex marriage rights. "In general, constitutional amendments are not used to take away rights but to extend civil rights," explains Hillman. "Plenty of initiatives have changed rights that individuals have, but none has been this specific in eliminating them."
If it does pass, the initiative will go into effect on November 5, the day after the election. But that won't invalidate existing marriages, says Joan Hollinger, a professor at the University of California, Berkeley, Boalt Hall School of Law. "Constitutional scholars agree that the amendment cannot be effective retroactively, so anyone married before November would be protected."
If the initiative passes, gay legal groups say they would immediately ask the court for a stay, arguing that the initiative conflicts with the court ruling. While the court was weighing that request, couples could not marry. Without the stay, no more marriages could take place without further legal action by gay rights groups. But if the stay were granted, marriages could continue while both sides fight it out in the courts.
Legal scholars say the case might have to go back to a California trial court. It could, theoretically, end up before the state supreme court again. Gay rights groups could also argue that the initiative conflicts with federal law, which would put the legal battle on the path to the federal Supreme Court. But it would take years to get that far, and even then the federal Supreme Court could decline to hear the case.
Still, if voters put those 14 words into the state constitution, getting them excised would be tremendously difficult. Even though the California legislature has twice extended marriage rights to gay couples and Governor Schwarzenegger has said he's against the initiative, their hands would be tied. That's why, says Kendell, "we can't depend on some later legal action or intervention to save the draconian effect of this amendment. It must be defeated."
Hands Across the Nation
Although the heart of the battle will be fought in California, both sides say they are going to need -- and seek -- the support of people throughout the country to win. "This is a national battle, no question," says Kors. "The national implications are enormous, because if we can [beat the initiative] in November, it will have an impact throughout the country."
Tom Lang, cofounder of Know Thy Neighbor, an organization working to protect marriage for all families nationwide, puts it this way: "Right now we are all Californians."
Kors and others believe we're in a good position to beat the initiative. "We have a strong court ruling from a court where six of the seven justices are Republicans," he notes. "We have a Republican governor who supports us, and a legislature that has voted in favor of us." Moreover, presidential candidate Barack Obama has said that he opposes all divisive constitutional amendments like the one on the California ballot.
Voters will have these gay-positive considerations in mind when they head to the polls in November. After all, over the past 10 years Equality California has seen the legislature pass 45 of its organization's bills advancing LGBT rights -- and California has yet to fall into the sea. As Kors puts it, "People in California are used to LGBT people."
But, he adds, "we need to be careful that we don't assume that the people we are friends with and work with are necessarily supportive. We need to have those conversations with them. We need every LGBT person in California -- or who knows someone in California -- to pick up the phone and talk about why this issue is important. We have to do that."
And our own happiness will move us forward. In ways we can't yet imagine, California will impact all our feelings about marriage. That's why, even after 18 anniversaries and a Jewish wedding, Davidson suspects he's going to feel new joy after going to the county clerk's office and getting a marriage license. As for Hillman, the ground shifted when she picked up her two daughters from school. "I told them about the court decision," she says, "and they went running down the hall of their preschool, singing 'Mommy and Mama are getting married.' And they looked at me with such happy eyes."
