The New 'I Do'

Confusing? Sure. But that's California.

If, on the other hand, the initiative fails, gay marriage opponents wouldn't surrender either. "Would that be the end of the road? Obviously not," said Glen Lavy, a senior counsel with the Alliance Defense Fund, which has provided much of the legal firepower behind the movement to ban same-sex marriage. "This is a fundamental institution of society."

Gay marriage opponents would launch various legal challenges, most on religious grounds. Any institution with a sacred affiliation and a public service mission -- religious schools, health facilities, charities, even summer camps -- could argue that being forced to recognize the marriages of same-sex couples who walk through its doors is a violation of religious freedom. According to Brad Sears, executive director of the Williams Institute on Sexual Orientation Law and Public Policy at UCLA's law school, there could be thousands of such claims.

Even if these legal efforts go nowhere, the political battle will continue. If the ballot initiative is defeated in November, nothing prevents its backers from drawing up another one, to come before voters in 2010, the time of the next regularly scheduled statewide election -- or even earlier if the state holds a special election. "This is one of the problems with the initiative process," said Pamela S. Karlan, a scholar at Stanford Law School. "There isn't any way of saying, 'The voters have spoken, and it's over.' They can be asked to speak on it again and again and again."

Why can't the other branches of California government put a stop to this?

The legislature and the governor could try, but their power is limited, and their record on same-sex marriage doesn't inspire confidence. For at least four years, the Democratic-controlled state legislature has supported marriage rights for gays but has proven too ham-handed to overcome the ban voters enacted in 2000.

In California -- wouldn't you know -- only the voters can change statutes enacted by ballot initiative. The legislature ignored this inconvenient fact, and on more than one occasion passed bills that were almost certainly unconstitutional. Gov. Arnold Schwarzenegger, a very California-style Republican, vetoed those bills, probably saving gay marriage supporters from potentially disastrous court rulings. California lawmakers, an irresponsible species, were hardly grateful, criticizing the governor for his actions.

But frankly, Schwarzenegger hasn't shown much leadership. He has been trying to have it both ways on the issue. Asked about the subject during his 2003 campaign, he delivered an all-time great malapropism: "I think that gay marriage is something that should be between a man and a woman." At a state Republican convention in 2004, he blasted Newsom, who had married gay couples in San Francisco even though it was against state law. Less than two weeks later, he told Jay Leno that he would have no problem if such marriages were legalized.

Recently, Schwarzenegger has said that he believes that marriage should be between a man and a woman but that he doesn't want to impose his views on Californians. And he opposes the current initiative, aligning himself with same-sex marriage supporters. But no one should count on the Terminator traveling through time to save gay marriage. Schwarzenegger often sounds like a man who just wishes that the issue would go away.

So why do supporters need the governor and the legislature, if the state Supreme Court has already made its ruling?

Because the court's decision is so broad that it raises new political and legal questions that will have to be taken up by the other branches of government. For the first time, the court ruled that gay people are a "suspect classification" -- a group, such as women or African Americans, who face discrimination because of immutable characteristics -- and that any law governing sexual orientation requires "strict scrutiny." In his majority opinion, Chief Justice Ronald M. George cited a new right that appears nowhere in the text of the state constitution: "the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples."

In a footnote, George added that such a right doesn't apply to polygamous or incestuous relationships. Good to know. But the court may have opened the door for "other, less deserving, claims of a right to marry," as Justice Marvin R. Baxter noted in a response to the majority opinion. (Please, nobody call the Mansons.)