The New 'I Do'

By Joe Mathews
Sunday, June 15, 2008


Hold the champagne.

Or at least the California sparkling wine.

This week should be a joyous one for those of us who believe in the right to marry the person you love. A month after the California Supreme Court overturned the state's ban on same-sex marriage, gay couples will be able to walk into county offices here and secure the same marriage license to which heterosexual couples such as my wife and I are entitled.

Partners are hastily arranging nuptials, and the wedding-industrial complex of caterers and consultants is anticipating a summer windfall. In San Francisco, Phyllis Lyon and Del Martin, who are both in their 80s and have been together for more than five decades, have arranged to be married by Mayor Gavin Newsom minutes after the ban is officially lifted at 5 p.m. tomorrow. "It means a great deal that we can get a license like anyone else," Lyon recently told the San Francisco Chronicle.

Gay rights supporters should toast the happy couples, but they might want to wait before raising a glass to the state. The ruling will hardly change California, a place blissfully devoted to its live-and-let-live ethos. But California -- with its dysfunctional politics and government -- may hurt the cause of same-sex marriage.

It's far from clear that California's institutions -- the courts, legislature, governor or ballot process -- possess the credibility or power to bring a lasting resolution to any public debate, especially one as contentious as same-sex marriage. Yes, gay marriage supporters are likely to claim more victories than defeats at all levels of California government. But victories in specific lawsuits or bills don't guarantee the unambiguous legalization of same-sex marriage here. The state's madcap legal and political systems offer too many ways to frustrate or delay a final decision. For gay couples and their supporters, California could become an expensive, time-consuming quagmire -- gay marriage's Vietnam.

How can this be, you ask, after the justices' ringing endorsement of gay marriage rights?

Because California has a powerful ballot-initiative process -- the one that in 2000 allowed voters to outlaw gay marriage in the first place -- and the state Supreme Court doesn't always get the final word. Consider the ballot initiative that Californians will vote on this fall. Sponsored by gay marriage opponents, the measure would define marriage as a union between a man and a woman and put this wording into the state constitution, thus reversing the Supreme Court's ruling.

Or not.

"If people vote yes [on the ban]," said Steve Smith, a political consultant working to defeat the initiative, "I think you're going to have immediate litigation." Lawyers on both sides speculate about all kinds of lawsuits, from technical attacks on the initiative's language to broad federal claims about the nature of republican government. Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, suggests that even if voters do approve the ban, a court could grant a stay on its enforcement. "That would allow marriages to continue to take place," he said, until judges sort out the initiative's constitutionality -- a process that could take years.

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