The Dish

Gay American Lee Moulton reacts to a California Supreme Court decision to overturn the ban on same-sex marriage at the California Supreme Court May 15, 2008 in San Francisco, California. By Justin Sullivan/Getty.

David Weigel on the marriage ruling:

Politically, I suppose this is bad news for the Democrats, but not nearly as much as in 2004. For one, it’s not coming out of a candidate’s home state. (How lucky was John Kerry to come from Massachusetts in the year of Goodridge?) For another, John McCain voted against the Federal Marriage Amendment: He can’t demagogue this, and he won’t. And finally, the issue’s simply becoming less volcanic as the issue is normalized. The way things are going, Mitt Romney will be leading a pro-gay marriage campaign by 2016 or so.

Eugene Volokh looks at the California opinion:

The opinion is entirely based on claims under the California Constitution, and does not rely on federal constitutional claims. This means that the U.S. Supreme Court cannot review this; and it also means that a state constitutional amendment — which seems likely to be on the ballot this November — could overturn the decision.

Here’s the court’s reasoning, in a nutshell:

1. The California Constitution’s Due Process Clause and Privacy Clause (there’s an explicit one in California) secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. The limit of marriage to opposite-sex couples thus must be reviewed under strict scrutiny (i.e., must be narrowly tailored to a compelling state interest).

2. The California Constitution’s Equal Protection Clause treats sexual orientation as a suspect classification. Any discrimination against gays and lesbians thus must be reviewed under strict scrutiny, and the opposite-sex-only rule is indeed such a discrimination.

3. The opposite-sex-marriage-only rule does not constitute presumptively impermissible sex discrimination, only sexual orientation discrimination.

4. The ban on same-sex marriage can’t pass muster under strict scrutiny (pretty much a foregone conclusion, given how demanding strict scrutiny generally is).

Without McCain-Feingold and without the Internet, Clinton would have crushed the opposition. But she didn’t. And Obama caught the next generation’s wave. Josh Green has a great article in the June Atlantic on Obama’s fundraising. Full of new reporting, it helps put into focus the extraordinary breakthrough the Obama campaign represents in online campaigning. I learned an awful lot. Money quote:

Obama is a gifted politician by anyone’s measure, but what distinguishes him from earlier insurgents is his ability to fully harness the excitement that his candidacy has created, in votes and in dollars. Three forces had to come together for this to happen: the effect of campaign-finance laws in broadening the number and types of people who fund the political process; the emergence of Northern California as one of the biggest sources of Democratic money; and the recognition by a few Silicon Valley entrepreneurs and venture capitalists that the technology and business practices they had developed in their day jobs could have a transformative effect on national politics.

The Field Poll’s last measurement was in 2007:

The Field poll questions have remained the same during the six surveys analyzed here. In 1985, only 30% of those polled supported same sex marriage. This increased to 38% in 1997, and the average for surveys in 2003-2006 showed support by 43%.

While only 25% of those born before 1940 are in support, that number has grown by 5% over these years. Those born in the 1940’s are supportive at 40%, also a gain of 5%. Similar 7 and 8% increases are found for those born in the 1950’s and 1960’s, reaching above the 40% threshold. Those born in the 1970’s and 1980’s are in support by 51% and 58%.

There is no question what the future will be like. The question is whether the court has catalyzed it. The good news is that the Obama candidacy will doubtless increase the number of younger voters in California; the bad news for marriage equality is that will increase the number of African-American voters. Maybe the court’s invocation of the anti-miscegenation precedent will help. But we have a big task on our hands – a $20 million minimum commitment. The prize is immeasurable: the establishment of equality in the most populous state of the union.

Robert Gates yesterday on talking to Iran:

"We need to figure out a way to develop some leverage … and then sit down and talk with them. If there is going to be a discussion, then they need something, too. We can’t go to a discussion and be completely the demander, with them not feeling that they need anything from us."

Grow up, Mr President. Be an adult, like your defense secretary.

A reader writes:

"Their family relationship" is the most striking phrase in the ruling – even for me, as a gay man. It rightly identifies what is at stake. What a radical notion: that we can form a family!

Or that we are already part of one. Another worries:

As explained in one of the dissents, the California Court’s majority basically ruled that, because the California legislature has recognized domestic partnerships (i.e., civil unions), the California Constitution requires that the state also recognize gay marriage.  We should expect, in response, that other, less progressive, states will move to curtail or prohibit civil unions. Those who oppose gay marriage will argue – with some force now – that the only way to prevent a court from recognizing gay marriage by judicial fiat is to prevent civil unions.  Because otherwise, a state court may bootstrap a gay marriage right onto any (democratically created) civil union laws.   

The decision is an arrogant, impatient one. My gay friends are impatient, and I understand their impatience. But the Court should have trusted the people.

It was only a matter of time. A democratic consensus, based on reason and persuasion, is much better for everyone, in all the states, in the long run.

Yes, and it has been building. But a republic is not just a democracy. It is a confluence of constitutions, laws, legislatures, executives and courts. In 1948, the California court ruled against miscegenation bans. It took three decades for that act of "judicial activism" to gain consensus nationally. Another reader writes:

As I sit at my desk and I read your coverage of this remarkable day in California, David Byrne’s version of "Don’t Fence Me In" plays on my iPod. Coincidence? You make the call.

Another:

I’m sitting at my cubicle at the conservative aviation insurance brokerage firm where I work, tears of joy running down my white, heterosexual, Republican cheeks at the California decision. I feel more elated right now than I will if McCain wins in November – this is real, palpable, substantial change, and it’s happening now (or, well, in 30 days). I’m 25, and this is one of the brightest rays of sunshine my young adult life has seen in a period besotted by torture, war, and a deluge of incompetence. This is a great, landmark day.

Drum has information on the ballot initiative that would reverse today’s ruling:

…the initiative to strike down their ruling has already gathered over a million signatures and is just waiting for verification from the Secretary of State before it goes on the November ballot. It’s 14 words long, identical to the wording of Prop 22 back in 2000: "Only marriage between a man and a woman is valid or recognized in California." This time, however, it’s a constitutional initiative, not a statutory initiative, so if it passes it will be immune to court challenges.

Prop 22 passed overwhelmingly with 63% of the vote. Has 13% of the state decided to relax since then and allow gay couples to live in peace? We’re about to find out.

That was eight years ago before marriages had become legal in California and Massachusetts. The current polling shows the state evenly divided.

(Photo: Christmas Leubrie wears a pro same-sex marriage button on her dress as she awaits a California Supreme Court decision to overturn the ban on same-sex marriage at the California Supreme Court May 15, 2008 in San Francisco, California. By Justin Sullivan/Getty.)

A map of them all!

Schwarzenegger’s statement on the ruling:

"I respect the Court’s decision and as Governor, I will uphold its ruling.  Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

Other reactions: Timothy Kincaid:

…this is not the final word. We are not yet sure whether a ballot initiative to ban gay marriage in the California Constitution received enough signatures to make it on the ballot in November.

But whatever you are doing right now, stop for a moment to celebrate an important change. Now one of ten Americans live in a state in which gay people are accorded full equality under the law.

Nancy Polikoff:

So four years – almost to the day – since couples began marrying in Massachusetts, the California Supreme Court has handed the marriage equality movement its biggest win yet.

Massachusetts has refused marriage licenses to most out-of-state couples; California won’t do that. When San Francisco Mayor Gavin Newsom authorized same-sex marriage in February 2004, the streets outside City Hall filled with couples from around the country. Expect a repeat — multiplied many times over — beginning 30 days from now.

Alex Koppelman:

…my first impression is that the political implications here could be big for November and beyond…First of all, this decision will undoubtedly be used by the Republican Party to try to re-energize its base. Secondly, it puts the Democratic Party in an uncomfortable position. The party has largely tried to split the baby by opposing outright legalization of gay marriage, which is still very dangerous politically, and supporting civil unions as an equitable solution. But this decision says civil unions are not the same thing as marriage and shouldn’t be treated that way. It’ll be very interesting to see what the reaction is from the party and the presidential candidates.

More reaction to come. My initial thoughts here and here.