Will this summer of love lead to the winter of our discontent?
The finale to the California Supreme Court's decision recognizing a right to gay marriage isn't yet written. This November, California voters will decide whether to amend the state constitution by adding this language to it: "Only marriage between a man and a woman is valid or recognized in California."
They will decide whether the recent state supreme court decision is remembered mainly as a historic victory that hastened equality under the law or as an act of judicial arrogance and impatience that inflamed voters and stopped or even reversed years of democratic progress toward the recognition of gay relationships.
One way or another, Californians were going to have to vote on gay marriage no matter what the court did. The court held that voters had already banned gay marriages performed both inside and outside the state. In California, an initiative-passed statute could only be repealed by another initiative. However laudable the state legislature's intentions in twice passing gay-marriage bills, such marriages could not have become legal without a vote of the people.
Moreover, it's also clear that whatever the state supreme court decided, the proposed amendment was going to be on the ballot in November anyway. The signatures necessary to put the amendment on the ballot were already gathered by the time the court acted.
In terms of what happens in November, therefore, the main effect of the court's decision has been to change the context in which the vote will occur. By judicial decree, Californians will see thousands of gay couples actually getting married for almost five months before they vote. Those marriages will be real, not hypothetical.
The question is, what effect will this reality have on voters? On the one hand, whatever they think of gay marriage, some voters may feel that it would be unfair to strip existing married couples of their rights. Voters may also be reassured by seeing that nothing bad happens when gay couples wed.
On the other hand, seeing gay couples actually marry may anger some voters. The sight of two men or two women kissing, no matter how joyous the occasion to those involved, is still shocking to a lot of people. They may vote "yes" as a way to stave off what they see as growing decadence and immorality. Five months just isn't a lot of time to normalize what people have spent their entire lives believing is abnormal.
Other voters will be angry at what they see as judicial activism and vote "yes" as a way to rebuke the courts.
It's impossible to predict now what the net political effect of all these gay nuptials will be. But it is possible to say what the stakes are.
If Californians reject the amendment, it will be the first time voters anywhere in the world will have approved gay marriage. They will have done so where the issue is squarely presented. They will have done so in a state inhabited by almost 40 million people, a state whose influence on the nation's culture and law is even larger than its share of the population. Vermont could be ignored. Massachusetts could be legally quarantined. But California can be neither disregarded nor isolated.
In future years, gay couples from across the country will be able to go to California - not to some foreign country - to have their relationships sanctioned. This alone will put enormous pressure on other states to move ahead and to do so more quickly than they otherwise would have. The federal government, too, will face increased political pressure to recognize same-sex marriages validly performed in a state.
We'll have an ongoing experiment that's larger and more significant than any other to prove that gay marriage makes a lot of families happier and causes nobody any harm. The impact will be huge.
That's one possible outcome. Here's another.
If the amendment passes, the result will set back the gay-marriage movement in the state by many years, perhaps a decade or more. While the amendment would be challenged as unconstitutional, such a challenge would face dim prospects. Anti-gay marriage amendments have now passed in 27 states and not one them has been held unconstitutional.
The amendment would be the final word on gay marriage in California - that is, until the voters themselves, in a future referendum, decide to repeal it. In the meantime, the California Supreme Court could not come to the rescue. The state legislature would be powerless to undo the amendment. The governor would be impotent to help.
And getting California voters to reverse their decision in some future election would not be easy. It would require a massive and costly effort to gather enough valid signatures from voters in the state to get the issue put back on the ballot. Next, there would be the enormous task of persuading voters to reverse themselves. Many of them, suffering from initiative fatigue, will vote against repeal simply on the ground that, "We've already voted on this."
If passed in November, I think the amendment would eventually be repealed. But that "eventually" could be a very long time indeed.
The stakes for the cause of gay marriage are higher than they have ever been. We are headed for a momentous battle in a full-scale culture war on the most strategic terrain in the country.