The California Marriage Tug-of-War

In California the new mantra among marriage rights activists can be boiled down to a three-word question: "2010 or 2012?"

For supporters of same-sex couples' right to marry, the debate over challenging 2008's Proposition 8 state constitutional amendment banning legal marriage for gay and lesbian partners has become about whether you support putting an initiative seeking to repeal Prop. 8 on the ballot in November 2010 or two years later. At times the discussion has gotten spirited.

There is also a potential complication that hasn't been widely discussed: Marriage equality supporters in California could face opposing referenda from anti-gay marriage activists indefinitely, creating an expensive and time consuming back-and-forth that would force marriage equality proponents into permanent campaign mode.

"Everyone is lost in the 2010 versus 2012 discussion," says Chad Griffin, board president of the American Foundation for Equal Rights, the group behind a federal lawsuit filed by prominent attorneys Theodore B. Olson and David Boies on behalf of two same-sex couples who were denied marriage licenses in California. "We need to dig a little deeper to see what we are arguing for. It's an absurd position to be in."

What's absurd to Griffin is that while supporters of marriage equality debate 2010 versus 2012, their opponents could easily be having their own discussions about mounting a ballot initiative in 2012 or 2014 that would once again ban legal same-sex nuptials.

"Would it shock me if we prevailed in 2012 and a group tried to take it away in 2014?" asks Marc Solomon, marriage director for LGBT advocacy group Equality California. "It wouldn't shock me at all. That's the way the California system works."

California is unusual even among the 17 or so states that allow for voter-driven constitutional amendments via the ballot box. The rules in California state that anyone who can get valid signatures from registered voters equal to 8% of the votes cast in the last gubernatorial election (currently around 700,000 signatures) and follow a series of relatively easy rules can get a state constitutional amendment on the ballot -- one that needs only a simple majority to pass.

Some other states require a higher percentage of valid signatures from gubernatorial voters or require a percentage of signatures based on presidential election vote tallies, geographic distribution, or the overall number of registered voters. Although Massachusetts requires a lower percentage of signatures from gubernatorial voters than California, the Bay State constitution doesn't allow initiatives to overrule judicial decisions.

"There's no limit to the number of times the California constitution can be amended, or amended on a particular topic," says David B. Cruz, a law professor at the University of Southern California Gould School of Law. "There is also no limit on the number of times an amendment can be proposed."

According to Cruz, there are a few ways to short-circuit what could be a decades-long battle over same-sex marriage in the Golden State.

One option would be changing the California constitution so that the initiative amendment power cannot be specifically used to strip the right to marry from same-sex couples. Activists might be able to pull that off by pushing a ballot initiative that would limit ballot initiatives, "so basically it would put limits on itself," Cruz says.

Solomon suggests the possibility of an initiative that would make it harder to change the constitution by raising the bar from a simple majority of voters to a two-thirds vote. But Cruz says the "initiative for an initiative" approach has its limits in California and may produce unintended consequences.

Marriage equality proponents would then have to spend the money and time to pass two initiatives instead of one. In addition, Cruz worries that a ballot measure that requires a two-thirds vote for amendments could create a protracted legal fight over whether the initiative was not actually an amendment but instead a revision to the constitution, which requires a two-thirds vote of both state legislatures for passage. Cruz also noted that there is no guarantee California voters would curtail their own powers at the ballot box.

Bob Stern, president of the nonpartisan policy think tank Center for Governmental Studies and an expert on political reform in California, thinks getting voters to limit their power is unlikely.

"When you ask the public if they have more confidence in the initiative process or the legislative process, they almost always say the initiative process," Stern says, "so it would be very difficult, for example, to abolish it or to curtail what can be in initiatives."

Another possibility may be a constitutional convention, which could provide for a series of changes to the state constitution by a body of delegates. It's been over 130 years since the last one, but supporters of a constitutional convention say it is crucial because California faces such serious financial distress from a series of ballot measures critics say have left lawmakers fiscally hamstrung.

The Bay Area Council, a business-driven public policy advocacy organization, has been promoting its own ballot initiative for November 2010 that would call a constitutional convention in 2011. Council spokesman John Grubb says his group is "not a lone voice" on the issue, has organized thousands of Californians to promote the idea, and is reaching out to other business groups and public policy organizations.

But whether the Bay Area Council will have the money and signatures to get the question of a constitutional convention on the ballot -- let alone the resources to attract a majority of yes votes -- is open to debate. In the meantime, Grubb is explaining that the Bay Area Council is interested in looking only at issues of governance and limiting the convention's reach to four areas -- the budget, elections, state-local relations, and bureaucracy management. Social issues would not be on the table, but if the referendum process was changed, it could affect marriage-related ballot initiatives.

"Clearly there is a systemic problem with the initiative process in California," says Rick Jacobs, founder and chair of organizing network and marriage equality support group Courage Campaign. "If it takes two thirds a to pass a budget in this state, shouldn't it take two thirds to take away rights from people?"

But Jacobs admits a constitutional convention doesn't come without risks. The Bay Area Council hasn't yet explained how many delegates there would be or how they would be selected, details that worry Jacobs.

And while the council's language seeks to keep the convention focused on specific issues, there is the fear that delegates unsupportive of equal marriage rights could use the opportunity to strengthen the current marriage ban. "One of the reasons state constitutional conventions are viewed with some suspicion and why we don't see them very often is because everything comes up for grabs," Cruz says.

Another possibility to end the debate is the federal lawsuit sponsored by Griffin's group challenging Proposition 8, which is set for a January trial date in San Francisco.

"Fundamental rights should not be decided which side has the best campaign or the most money or the best consultants, and this comes from someone who makes his living off ballot measures," Griffin says. "If a ballot measure goes forward in 2010 and if our side had $40 million to $60 million and a campaign, we may win by a point or two. I'm all for winning full and complete equality any way we can, but I want to win it and know we have it forever."

If the suit is successful, Griffin argues, it would strike down Proposition 8 and render moot any further ballot box challenges to civil marriage in California.

"Winning a case like this is a route to winning a victory once and for all," he says.

Jennifer C. Pizer, senior counsel and marriage project director for LGBT rights group Lambda Legal, notes that Griffin's group's suit "could confirm as a matter of federal law that California does not have adequate reasons to abridge gay and lesbian couples' right to marry. That would mean the right could not be eliminated by another state ballot measure."

Initially opposed to the suit on grounds that the timing wasn't right, Lambda Legal has made an about-face and joined other groups in supporting the challenge now that it is moving forward. The impact of the case on California is uncertain, Pizer says. "Of course, we don't know how narrowly or broadly the various courts will rule in the case, and which way, so it's impossible to know what the future implications are," she says.

For Pizer, the answer still comes back to the grinding, day-to-day struggle to change hearts and minds.

"The answer to antigay ballot measures on all subjects is the same," she explains. "A lot more community education work, especially in communities where LGBT people have been less visible, and cross-community organizing. The demographic and social trends are strongly in our favor, and I am far less concerned than some people that California will see repeated seesawing of conflicting pro-equality and antigay initiatives. In other states the common pattern has been that antigay groups abandon proposals when they see the public has come to recognize the particular proposal as aimed at a fake 'problem' and hurtful. We have every reason to be confident that once we pass the threshold of majority support for marriage equality, the antigay funding sources won't waste their money refighting what will have become a losing battle for them."

Griffin says he "absolutely" supports any ballot measure that brings about equal marriage rights but fears a decisive electoral victory is still far off. According to Griffin, a narrow victory of just a few points in favor of marriage equality would only drive antimarriage forces to conclude it's worth it to mount another Prop. 8-like ballot initiative.

"A landside election for LGBT [marriage] equality would be a major, major achievement," he says. "Having said that, there's no evidence for that in the next two or three years ... in this state or any other."