SAN FRANCISCO—A week after ballot initiatives banning same-sex marriage passed in Arizona, California, and Florida, bringing the total number of states with constitutional amendments barring gay marriage to 30, the fierce battle over this culture war issue appears to be far from over. Yesterday, Connecticut became the third state ever to issue marriage licenses to same-sex couples, a month after the state's Supreme Court ruled that gays and lesbians have the right to marry under the state Constitution.
Unlike California, where the state's Supreme Court issued a similar ruling earlier this year only to see it overturned by ballot initiative, there is no statewide initiative process in Connecticut that would allow the ruling to be reversed. Connecticut voters could have supported a measure on last week's ballot that would have called for a convention to amend the state's Constitution, but the measure failed. Under the state Constitution, the question can go on the ballot only once every 20 years. Connecticut joins Massachusetts as one of only two states where same-sex marriage is legal, and it appears likely to stay that way.
"Today, Connecticut sends a message of hope and promise to lesbian and gay people throughout the country who want to be treated as equal citizens by their government," said Ben Klein, a lawyer with Gay and Lesbian Advocates and Defenders, which litigated the Connecticut case. "It is living proof that marriage equality is moving forward in this country."
Opponents of same-sex marriage, after a series of dramatic victories in this fall's elections, do not have much recourse in Connecticut, but they vowed to fight the new law in future elections. "Unlike California, we did not have a remedy," said Peter Wolfgang, executive director of the Family Institute of Connecticut. "It must be overturned with patience, determination, and fortitude."
As gay couples in Connecticut celebrated, same-sex marriage supporters in California continued to protest the passage of Proposition 8, which eliminated the right of gay and lesbian couples to marry. Protests have been held across the state every day since the election, including several passionate demonstrations outside Mormon places of worship in Los Angeles and Oakland. According to some estimates, more than 40 percent of the money donated to defeat the same-sex marriage initiative came from individuals associated with the Church of Jesus Christ of Latter-day Saints. A church spokesperson has condemned the protests as discriminatory.
While the protests grow more heated, there appears to be a growing divide among gay rights groups about what their next step should be. Three lawsuits have been filed asking the state Supreme Court to overturn the new law, and Gov. Arnold Schwarzenegger, for one, seemed to indicate his support for a court challenge of last week's results. "It's unfortunate, obviously, but it's not the end," Schwarzenegger said on CNN. "I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there." Schwarzenegger compared the ban on same-sex marriage to the state's old antimiscegenation laws, which were overturned by the state's Supreme Court in the 1940s. "It's the same as in the 1948 [California] case when blacks and whites were not allowed to marry," he said. "This falls into the same category."
Some civil rights experts, however, argue that the California courts may no longer be the best place to take the fight for same-sex marriage. A group of activists in southern California is organizing an effort to hold simultaneous protests in every state capital and Washington, D.C., over the weekend. As support for that effort grows, some observers have noted that same-sex marriage supporters may have made all the progress they are going to make in the courts. "I think it would be a real mistake to have a big popular referendum and then tell the people, 'For these technical legal reasons, which none of you will understand, we're not going to let you have your way,' " says Michael Klarman, a law professor at Harvard University who has written extensively on the history of civil rights.
Overturning Proposition 8 on a legal technicality might provoke California voters, 52 percent of whom supported the measure last week. "I don't blame people for being upset," says Klarman, who points out that only eight years ago, in 2000, more than 60 percent of the state's voters supported a similar measure. "What is that, a percentage point every year? I think the better strategy for gay rights groups is not to try to get the California court to say this is invalid on technical grounds, but rather just accept the loss and say, 'In two years, we're going to fight again. We can read the tea leaves and we're gaining an average of 1 percent a year, so in two years, we'll fight harder and make better arguments, and we'll probably win.' I think if you get the court to strike it down, you'll just create a backlash."