Marriage Amendment

The constitutional amendment initiative to undo today’s ruling has been in circulation for some time now. The text of the proposed initiative may be found on the last page of this file, and it would add a new Section 7.5 to Article I of the state constitution, reading: “Only marriage between a man and a woman is valid or recongized in California.”

Query, though, since the Supremes found that the right to marriage is a fundamental right embedded in other sections of the Constitution and that the equal protections clause of the constitution requires extending that right to same-sex couples, what effect this new amendment would have. The initiative could have been worded better if this clause had been added to the beginning: “Notwithstanding any other provision herein…” That would have made clear that the so-called “California Marriage Protection Act” intended to carve out only one narrow exception to the Equal Protections Clause. But, the initiative is phrased as it’s phrased and that will be what the voters get to decide on. And if it passes, that will be what the Supreme Court will have to deal with again.

It is no feat of prognostication to predict that this initiative will now easily qualify for the November ballot. The question is whether a majority of Californians will vote for it. The latest statewide poll on the issue was conducted in early 2006 and showed 43% of poll respondents in favor of same-sex marriage and 50% against it. And this is looking like a particularly good year for Democrats and liberal Democrats. If less than 50% of the voters get behind overruling the Supreme Court by amending the state’s constitution, then that will permanently resolve the issue in favor of same-sex marriage. The initiative proponents might prefer to wait for a lower-turnout election than November’s, as a strategic matter. But I don’t think they’ll do that.

The reason is that there are conservatives out there who think this is a huge blessing for McCain because it will motivate conservatives to come out and vote against gay marriage and by the way also vote for McCain (or, more accurately, vote against Obama). I’ve already exchanged such thoughts with at least two such people, both more socially conservative than I. They think the power of this will be such that it may put California in play for McCain. While these are both smart people who I respect, I’m far from convinced that their prediction is how it will actually play out. California is a very Democratic state, a very liberal state, at least these days. It’s been a long time since a red-blooded conservative statewide issue or candidate of any significance has won here; I think you’d have to go back to Governor Wilson’s re-election campaign in 1994, when he ran rightward on immigration, to see a statewide electoral success of a conservative Republican here. Yes, I know Bill Jones won re-election as Secretary of State in 1998 and he’s not exactly a liberal. But it also was Secretary of State, and he could not win the California GOP’s nomination for either Senate or Governor since then. Governor Schwarzenegger has always portrayed himself as a “moderate” Republican. So even if you count Jones’ re-election in 1998, that’s ten solid years of the electorate running away from the right in this state.

I think the initiative just might fail.