The Court Steps Back In

The California Supreme Court has agreed to hear suits brought by a variety of organizations on behalf of gay and lesbian couples affected by the passage of Proposition 8, and by religious and civil rights groups who worry that Proposition 8 will set an unfortunate precedent that could be used in the future to discriminate against churches and minority groups.

Briefs must be submitted by January 15 and oral arguments will be heard some time in March, with a decision expect within 90 days after that. It was in March of last year that arguments were heard before the Court in the in re: Marriage cases that led to the overturning of Proposition 22 and, ultimately, the approval of marriage equality in California and the placement on the ballot of Proposition 8.

The question is, is this a good thing for the community? The uproar from the right will be ear-splitting should the Court rule that Proposition 8 is actually a "revision" of the Constitution and not simply an amendment. "Activist judges" will likely not be enough of an expression of contempt, and I imagine Hannity and Limbaugh and Maggie Gallagher and the rest of the anti-equality cabal will have to develop a different, more censorious term. "Tools of Satan," perhaps? The churches will take to the streets just as we have. They will immediately begin efforts to recall the justices. They will work incessantly to remove from offices those legislators who refuse to pass a constitutional revision. (2/3 of the legislature would have to pass such a measure, and given that a majority of this same body twice passed legislation to create full marriage equality, that seems unlikely.)

There will be long-lingering animosity toward the gay community, and the issue may never fully resolve itself. But that's OK - it was never going to be fully resolved, even if we ended up winning the battle at the ballot box. For some people, same-sex marriage is always going to be intrinsically wrong, no matter how it comes to be legal.

What can the religious right do?
- It's virtually impossible for them to forward their agenda in the legislature as currently composed.
- It's unlikely they can vote out of office enough legislators to change that composition.
- They could appeal to the Ninth Court, and then to the SCOTUS, but it's unlikely they will win in either venue.
- If they lose at the US Supreme Court, they could attempt to re-introduce a Federal Marriage Amendment, but that's unlikely to gain the traction it needs (though it will certainly galvanize the opposition) to clear Congress. Even if it could, only 13 states have to reject the amendment.

Any of those reactions will take years to play out. And during that time, states with a combined population of 40 million (or more, if legislators in New York and New Jersey also approve marriage equality, and if the Iowa Supreme Court rules in favor of equality) will have equal access to marriage.

The battle goes on!