More on California

Okay, home sick, but still feeling a bit better than yesterday.

Kevin Drum analyzes the political situation in California. In short, I was probably a bit overly optimistic in thinking the situation was stable, although, particularly with the Governor backing the court, I do think this is a fight we can, and we must, win.

In 2000 Californians voted to ban same-sex marriage by a margin of 61%-39%. If attitudes toward gay marriage have followed their historical pattern, about 9% more Californians are in favor of it this year, which means they’d still vote to ban it, but by the smaller margin of 52%-48%.

In other words: this is likely to be very close. These numbers have fairly big error bars attached to them, and it’s also possible, especially in California, that attitudes toward gay marriage since 2000 have softened faster than in the past. Still, right now it looks to me like the odds are slightly stacked against those of us who favor same-sex marriage. This is going to be a very tough campaign.

Sullivan has a post up where he describes changing attitudes towards homosexuals as an empirical shift, not an ideological one. In essence people used to act out of ignorance but now you have people who grew up knowing gay people. Not a new idea, but well put.

Marty Lederman notes the legal implications of this case, namely that for the first time it applies the very stringent "strict scrutiny" standard to discrimination on the basis sexual orientation. Definitely worth reading the whole thing if you want a some readable details on the ruling. Kenji Yoshino seconds that analysis and notes that it will be applicable in other California rulings on sexual orientation issues.

Ian Ayres has a great post also at Balkinization on the fact the California ruling, unlike the one in Massachusetts, allows for people from out of state to be married(if not necessarily to get that marriage recognized back home). He ends the post with a challenge that’s directly applicable to me.

Proponents of marriage equality have long analogized the ban on gay marriage to a “whites only” water fountain from which only heterosexual couples could drink. Most white Americans would walk across the street to avoid drinking from a white’s only water fountain. Now heterosexuals must choose whether they will travel across a state line to marry in a jurisdiction that has taken down the “heterosexuals only” sign.

With a single stroke, the California Supreme Court has offered all Americans the right to marry without regard to sexual orientation or citizenship. The rest us of us are now challenged to construct an appropriate response.

Frankly, there’s no way I’d move my ceremony, but it is at least food for thought on the license. For now I’ll keep up the fight in Maryland, although for the moment, I think the battleground is California and I’ll be putting my resources there.