Massachusetts' highest court legalized same-sex marriage in 2004. But that decision applied only to Massachusetts residents. Legal scholars note that the California court's ruling will apply to anyone who visits. California has no residency restrictions on marriage licenses, so once the state begins to issue licenses to same-sex couples—something that is expected later this summer—out-of-state couples will be able to come to California, get married, and return to their home states. "Massachusetts didn't create the same kind of internal pressure," Kmiec says. "California licenses will be exportable."
He adds, however, that it's "an open question whether they will be enforceable in one's home jurisdiction." If same-sex marriages from California aren't recognized in, say, Ohio, more lawsuits will be forthcoming.
In the shorter term, of course, the court's decision is likely to enter the political arena. "I think this decision is certainly good news for John McCain," says Koppelman, noting that McCain has been struggling to attract socially conservative voters. McCain voted against the federal amendment that would have banned gay marriage after the Massachusetts decision, and up to now, he has insisted that this issue is better left to the states. But the stakes may be too high now for him to pass up. "We know this issue energizes the religious right," Koppelman says, "and it has a proven track record of getting people to show up at the polls."
Before the campaign ads begin, there is still at least one major unresolved issue in California. Over the past several months, conservative groups in the state have collected more than 1.1 million signatures for an initiative that will likely appear on the November ballot that would amend the state Constitution and outlaw same-sex marriage, undoing yesterday's decision. California is a liberal state, but there are many voters here who are uncomfortable with what the court has done. Proposition 22, after all, was passed by a substantial majority, although polls show voters are split closer to 50-50 on the subject now. The ballot measure might be the last stand for some conservatives. "Thanks to the more than 1 million Californians who signed petitions, these out-of-touch California judges will not have the last word on marriage," says Brian Brown, executive director of the National Organization for Marriage California. "California voters will."
With yet another showdown looming this fall, same-sex marriage supporters were surprised yesterday to find themselves with at least one new, and unlikely, ally. As soon as the decision was announced, Gov. Arnold Schwarzenegger, who has twice vetoed legislation that would have legalized marriage in the state—claiming both times that he was awaiting the Supreme Court's decision—said he would oppose the new initiative. "I respect the court's decision, and as governor, I will uphold its ruling," he said. "Also, as I have said in the past, I will not support an amendment to the Constitution that would overturn this state Supreme Court ruling."