In the presidential race, California’s electoral results passed as an afterthought, the last minor barrier to an Obama presidency, and the networks took all of three seconds to call the race. But even if there was no drama in the presidential race on the West Coast, there was some excitement in Hollywood thanks to Proposition 8. The ruling to ban gay marriage in the state came down to the wire, and some ballots are still being counted. But all signs point to the measure passing, an unexpected outcome that is a game-changer in the struggle for gay rights.
In May, the California Supreme Court recognized that gay people had the right to marry, sending shock waves across the nation and sending Ellen straight to the wedding registry. Of course, that also got social conservatives up in arms and they managed to get Proposition 8 on the ballots, defining marriage as a union between a man and a woman. While thousands of gay couples rushed to the altar, both sides on the proposition started raising money. Each campaign brought in more than $35 million, making it the most expensive measure on any ballot in the nation.
Going into the election, Proposition 8 looked like it was heading for defeat. It was lagging in the polls and Obama’s popularity meant that millions of new liberal voters were filling out ballots. However, the measure passed with 52.4 percent of the vote. That outcome is raising all kinds of questions.
Analysts are wondering how Prop 8 passed, with so many factors working against it. Some think that the new slate of Obama voters may not have been as liberal as people thought. There may have been a Bradley Effect, only with sexual orientation instead of race. And some are even wondering if Sean Penn could have changed the race: Penn is turning in an Oscar-worthy performance in Milk about Harvey Milk and his challenge to California’s Proposition 6, banning homosexuals from teaching in schools. The movie won’t be released until late November to garner some Oscar buzz, but some wonder if an earlier release of the movie might have turned the tide against Proposition 8.
Whatever the reason, it’s the outcome that really matters. Even though the state is still counting as many as 2 million mail-in ballots, opponents of Prop 8 are already gearing up for a fight. The ACLU is urging the state Supreme Court to overrule the proposition on the grounds that it is unconstitutional. Gay rights groups are organizing protests and some cities are even prepping for a legal fight that would erase the proposition. And some counties are refusing to stop performing same-sex marriages until the state tells them to stop.
California’s case is interesting because it was going to the ballots to overturn the courts. This wrinkle of public opinion versus legalese adds another complication, meaning the legal fight is sure to be long. A lawsuit has already been filed and more will undoubtedly follow. Even though two other states (Arizona and Florida) passed measures against gay marriage last week, California is set to become the battleground for the fight. There’s no telling how successful these challenges will be, especially after the unpredictability of last week’s vote.
There’s a good chance that this fight will be taken to the federal courts. The current atmosphere makes it unlikely that proponents of gay marriage would bring it to the Supreme Court immediately, but the marriage issue is almost sure to end up being settled on the national stage, no matter how many politicians recite the “states’ rights” line. Whether the case comes out of California or another state, Prop 8 will certainly come up in any discussion.
For now, though, it’s unclear what will happen to the thousands of couples that were married in California when it was legal. Domestic partnerships will still be allowed, but it’s unclear if the marriages will be voided, or if they will continue to be recognized. Even more confusing is the option that they would no longer be recognized in California, but would be in other states. The last option is the most likely, but one that can also raise some philosophical questions about what a marriage really is.
As the marriages are in flux, so is the legal status of Proposition 8. However, California has captured the nation’s attention on this issue and this will likely become a seminal moment in our generation’s most defining social battle.