To nobody's surprise, the main group trying to repeal Prop 8 this year in California has announced that it failed to gather the almost 700,000 signatures of registered voters needed to get the issue on this fall's ballot.
While that's disappointing for those who worked hard to get the signatures, and for those who believed it might be possible to win this year, it's good news for the movement. It was never a good idea to try for a repeal in this electoral and economic climate. Without the support of the main gay-rights groups, and without the support of major donors, the 2010 effort has mercifully expired.
Now the focus will turn to a possible repeal in 2012. There are at least two big unknown factors at work.
First, would a repeal in 2012 be successful? A recent poll showing that a bare majority of Californians now support gay marriage is as unpersuasive on this score as were the early polls telling us we would win the Prop 8 battle by fifteen percentage points.
Second, would a 2012 repeal effort be affected by the ongoing litigation over Prop 8 launched by David Boies and Ted Olson? It's now in a San Francisco trial court awaiting closing arguments and a decision. But the inevitable appeals will take at least a couple of years, and probably more.
In the fall of 2011, when money for a signature drive would have to be raised, and in the spring of 2012, when signatures would have to be gathered, it's likely the Prop 8 litigation will still be alive. In the summer and fall of 2012, when more money would have to be raised and volunteers would be needed to execute a campaign, it's quite possible the litigation will be at or nearing the Supreme Court.
The danger is that the very existence of the litigation will sap energy from a repeal effort. Some donors and volunteers will figure that the matter will be resolved by the Court, so why bother working for a repeal? The Supreme Court will do that for us.
The phenomenon of litigation draining energy from political work has precedent. Many abortion-rights activists believe, for example, that Roe v. Wade actually stunted the political movement for abortion rights. The same was true of the many legislative challenges to Connecticut's anti-contraceptives law in the decades before the Supreme Court struck it down. Several ongoing lawsuits over a period of thirty years made the drudgery of legislative work seem even less attractive, and unnecessary.
But at least in the case of abortion and contraception, the movements behind those efforts got what they wanted from the Supreme Court. In 2012, we may be in the unenviable position of getting nothing from the Supreme Court but a depressed and dependant political base.