In May 2008, the California Supreme Court legalized same-sex marriage, ruling that "an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights."
After California voters narrowly approved Proposition 8 in November banning same-sex marriage, the same court deferred to the voters, ruling last week, "Our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."
Most Americans remain opposed to same-sex marriage. But support has been growing. In 2000, according to a USA Today/CNN/Gallup poll, 34 percent of Americans believed that marriages between same-sex couples should be recognized as legal. That number grew to 40 percent in 2007 and 45 percent this year.
Some opponents of Proposition 8 are making a federal case out of it. Ted Olson, who represented George W. Bush in the case that decided the outcome of the 2000 presidential election, and David Boies, who represented Al Gore, are joining forces to challenge Proposition 8 in federal court.
"There will be many people who will think this is not the time to go to federal court," Olson said at a news conference in Los Angeles last week. "Both David and I have studied the court for more years than probably either one of us would like to admit. We think we know what we are doing." Boies added, "When you have people being denied civil rights today, I think it is impossible as lawyers and as Americans to say, 'No, you have to wait. Now is not the right time.' "
Many advocates of same-sex marriage believe that it's risky to go to federal court because most federal judges were appointed by Republican presidents. They prefer to take the issue directly to the people. But didn't the people of California say no? They did, but Lara Schwartz, legal director of the Human Rights Campaign, contends, "There has already been an enormous amount of buyers' remorse among Californians."
Gay-marriage advocates are already raising money and gathering signatures to put another proposition on the California ballot to repeal Proposition 8, which passed by a narrow majority (52 percent). Supporters of same-sex marriage believe they have the momentum now. After all, a measure to ban same-sex marriage by statute passed with 61 percent of the vote in California in 2000.
Last year, white voters in California were closely divided over Proposition 8 (they voted 52 percent to 48 percent against it, according to the network exit polls). African-American voters supported the measure by better than 2-to-1 (70 percent to 30 percent). It could be risky for gay-rights advocates to wait until 2012 to put the repeal measure on the ballot. President Obama is likely to be running for re-election and may once again draw heavy African-American turnout.
The ballot-box strategy may work in California, but the prospects in many other states do not look good. Jim Garlow, a California pastor and leading opponent of same-sex marriage, noted on CNN's Larry King Live that "30 states have voted on this and all 30 states where people have been allowed to vote they have all voted for traditional marriage -- every single time."
The argument for going to court is that you can't ask people to vote on basic rights. San Francisco Mayor Gavin Newsom said, "All I can say is, thank God that in 1967 we didn't let the people decide on interracial marriage, because 70 percent of Americans opposed that."
Advocates of same-sex marriage believe that a carefully targeted ballot-box strategy will prepare the way for court victories. "These things happen together," said Schwartz of the Human Rights Campaign. "We have seen over the course of this country's history that civil rights; social and economic advances; protections for women; religious protections; and now protections for the lesbian, gay, bisexual, and transgender community move forward with court cases and with activism and with work in legislatures."
An old adage says, "The Supreme Court follows the election returns." That's why supporters of same-sex marriage believe that a few key election victories could turn the courts around.
This article appears in the June 6, 2009, edition of National Journal Magazine.