In February, a New York State judge in Manhattan ordered her state to recognize same-sex marriages, and the issue (currently stayed) is headed on appeal to New York's highest court. Now, a California State judge in San Francisco has ruled that his state, too, must recognize same-sex marriage, striking down Prop. 22, a statewide ban on gay marriage passed by voters (note: Prop. 22 changed the state's family code, but was not a state constitutional amendment. California's requirements to amend the constitution by initiative are more stringent than the requirements to amend a statute by initiative).
As in New York, there's a strong likelihood this latest lower-court decision will be overturned on appeal, so the celebrating may be premature. But there's also the possiblity that one or both decisions will hold.
A worst-case scenario: In response to the courts ordering gay marriage against the expressed wishes of the electorate, the electorate will pass statewide constitutional amendments (as 13 other states did last year alone). Even worse scenario: Given California's (and New York's) prominence, court-ordered gay marriage breaths new life into the efforts to pass a federal constitutional amendment.
Best-case scenario: California and New York are ordered to establish same-sex marriage, the backlash is successfully countered and efforts to pass statewide constitutional amendments go down in flames. The states' electorates may not have voted for same-sex marriage, but they eventually come to accept it. And all this happens before a federal amendment winds its way into enactment. It could happen (hey, the Berlin Wall fell), but I wish there was at least some acknowledgement that this is a high-risk gamble and that every lower-court victory is not simply a linear advance toward the inevitable goal of marriage equality.
One thing is clear: the leading gay legal rights advocates have adopted a strategy of going to the nation's most ultraliberal state judicial districts to seek favorable marriage rulings, and they will not be dissuaded from that path. The alternative - seeking legislatively approval for granting gay couples all the rights and benefits of marriage - is now viewed with disdain, although real gains for gay families have been achieved through legislative victories in New Jersey, California and (soon) Connecticut.
So it's go for broke, folks. And before too long we'll know if
it's the Berlin Wall falling - or Prague Spring.