What's ahead for same-sex marriage?

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Friday, June 18, 2010; 8:19 PM

With a federal court considering a challenge to California's Proposition 8, a 2008 ban on same-sex marriage, The Post asked state residents, pollsters and others what it would mean for the cause of gay marriage if the law is overturned. Below, responses from Scott Keeter, Joe Mathews, Morgan Meneses-Sheets, Ayelet Waldman, Dianne Feinstein and Jarrett T. Barrios.

SCOTT KEETER

Director of survey research at Pew Research Centerx

There certainly could be a public opinion backlash if Proposition 8 is overturned in the courts, but it's impossible to say how large it might be. Pew Research polling in 2003 and 2004 detected an uptick in opposition to same-sex marriage after the U.S. Supreme Court struck down state laws against sodomy and the Massachusetts Supreme Court ruled that the state cannot forbid same-sex marriages. By 2006 this surge in opposition had faded, but many proponents of same-sex marriage remain concerned about the possibility of a backlash against from their activism. In an August 2009 Pew Research poll, 42 percent of those favoring same-sex marriage said that supporters should not push too hard on the issue because doing so could create bad feelings against homosexuals; 45 percent disagreed.

At present, the public opinion climate remains chilly for same-sex marriage. Still, opponents of same-sex marriage are a small majority rather than a large one (51 percent in a January 2010 Pew Research poll). While opposition to same-sex marriage tends to be more intense than support for it, acceptance of homosexuality more generally has been slowly increasing in the United States. Young people -- who will hold the key to this issue in the future -- are much more accepting of homosexuality, including gay marriage, than are older people.

JOE MATHEWS

Senior fellow at the New America Foundation

This is a scary moment for those who believe in marriage equality. Same-sex marriage should be legalized in as many places as possible as quickly as possible. A court decision overturning Prop 8 could advance that goal or undermine it.

It depends how the court decision is framed. If judges strongly support overturning Prop 8 at each stage of the appeal, this emerging judicial consensus that gay-marriage bans are unconstitutional would speed acceptance of such unions across the country. But if Prop 8 is overturned by a narrowly and nastily divided U.S. Supreme Court, say 5 to 4, such a decision could conceivably do more harm than good.

How? Public opinion is moving, albeit too slowly, in favor of marriage equality. Same-sex marriage will win at the polls eventually. But a divisive court decision that gets too far ahead of the voters could prolong the fight over same-sex marriage for a generation or more -- and give those who oppose such marriages a politically powerful argument: that a few judges are reversing the verdicts of voters in the 33 states that have passed ballot measures against gay marriage.

The logic behind a Prop 8 decision matters, too. As a journalist who observed the Prop 8 trial in San Francisco, I've been disturbed by the excessive interest that the presiding judge, Vaughn Walker, has shown in the libertarian idea that the state shouldn't be involved in the marriage business at all. If he overturns Prop 8 on those grounds -- that there should be no government-registered marriages -- it might be a disaster for same-sex marriage. Secular straights would lose marriage rights. And conservatives would be proved right after all: Same-sex marriage is a threat to your marriage.

MORGAN MENESES-SHEETS

Executive director of Equality Maryland

It is simply wrong that the question of equal rights would be put up for a majority vote. In California in 2008, a very narrow margin of voters took away important protections from committed couples and loving families.

Overturning Proposition 8 would not harm the cause of marriage equality. It would honor the American value of equal treatment under the law by allowing same-gender couples in California to have access to the same rights, responsibilities and privileges -- no more and no less. We are a country with a history of enhancing the rights of our citizens. Overturning Prop 8 would reflect that history and provide an important safety net to thousands of children and families across the state of California.

AYELET WALDMAN

Author based in Berkeley, Calif.; her next novel, "Red Hook Road," is to be published in July

In November 2008, I had to explain to my children that even in a country that elected a president like Barack Obama, there were still people who believed that there was something wrong about the families of many of their friends. If Proposition 8 is overturned at trial, I can once again tell my kids that the Constitution guarantees that our most fundamental rights will not be taken away from us for arbitrary reasons and that it protects even those of us of whom the majority disapproves.

What I won't share with my children is the dread I feel. I believe the challenge will succeed in the trial court. But I have little doubt that those of us who support the rights of our gay loved ones to marry will be tragically disappointed once the case works its way to the Supreme Court.

When the Supreme Court refuses to uphold marriage equality, as I fear is likely, that decision will become precedent for the myriad states in which there is no well-developed body of state constitutional jurisprudence. Worse, many states in this country will never rule in favor of marriage equality on their own. We will thus need a federal constitutional decision to compel them to act. It took 17 years to get from Bowers v. Hardwick, in which Justice Byron White could barely bring himself to contemplate the existence of gay relationships, to Lawrence v. Texas.

My hope is that Judge Walker decides this case on the narrowest possible grounds, affecting only California, and that the U.S. Court of Appeals for the 9th Circuit affirms on those narrow grounds. Perhaps then the U.S. Supreme Court will do us the favor of simply passing on the case and waiting a few years until it is able to write an opinion that I will be proud to read to my children.

DIANNE FEINSTEIN

Democratic senator from California

My heart sank with the passage of Proposition 8, but I never thought it was the final verdict on the issue of marriage equality. A great deal of money was spent to distort the facts and portray equal rights as a threat to children and the institution of marriage itself.

Proposition 8's passage was a real setback, and it was shocking in a year when Californians voted overwhelmingly for change. Now, a court will decide whether it is constitutional to deprive same-sex couples of the right to marry their loved ones. I do not see how you can take a fundamental right away from people, especially in light of the fact that 18,000 couples were married during the brief period when same-sex marriage was legal. And despite all of the predictions by opponents that same-sex marriage would harm heterosexual marriage, it has been shown that this is not the case.

I firmly believe that marriage equality will one day, proudly, be the law in the state of California. My faith is rooted in my personal evolution on this subject. Over the decades, I have seen the lesbian and gay community grow, mature and find its voice. And I have seen people find love, stability and happiness -- for themselves and their children -- in the special bond of marriage. That's why I strongly support equal marriage rights. And that's why I believe public opinion -- in California and across the nation -- will continue to shift in favor of gay marriage.

JARRETT T. BARRIOS

President of Gay and Lesbian Alliance Against Defamation

The trial mattered a lot, but how Judge Walker rules doesn't matter nearly as much as the process did. Of enormous -- but underappreciated -- significance was the role the trial played as a forum for gay and lesbian couples to tell their stories. As fair-minded Americans have gotten to know these couples and their inspiring commitment to one another, public opinion has moved toward strong support for equality.

Polling shows that Americans' feelings toward gay and lesbian people have become more favorable in large part because they have gotten to know someone who is gay or lesbian. Our stories have shown Americans that marriage is two people who want to take care of and be responsible for each other, and marriage is the way to provide this security. Last month a Gallup poll found opposition to marriage equality was at the lowest level measured, and CBS News found support is the highest since it started polling.

The trial is the latest example for why our community needs to speak out. As long as we keep doing this, it is only a matter of time until the freedom to marry is again secure for all Californians, with the public on board.


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