May 25th, 2009
08:04 PM ET

Decision day in California

Joneil Adriano
AC360° Producer

On Tuesday, the eyes of the nation will be watching California, during what is being billed as the "Day of Decision" by marriage equality activists all across the land. Why? Because the California Supreme Court is expected to issue its highly anticipated ruling on whether or not Proposition 8, the controversial ballot initiative which amended the state constitution to ban gay marriage, should be upheld or invalidated.

After the oral arguments in March, many court watchers predicted that the Supreme Court would respect the will of the voters and allow Prop. 8 to stand. If that is indeed the case, those who support same-sex marriage will hold protests across the country. If the justices surprise everyone by overturning it, those protests will become celebrations.

For those on both sides of the issue, the stakes are high. For one thing, there are an estimated 20,000 gay couples who are, for now, legally married in the state. Will the court allow those marriages to continue, or will they be forcibly annulled?

Also, California is the biggest state in the union in terms of population. Whichever side wins tomorrow will claim a big victory - and momentum.

But taking a step back for a moment, it does seem as if the train has already left the station. Since the California court took up this issue, three other states have begun granting same-sex couples the right to marry: Iowa, Vermont, and Maine. New Hampshire, New York, and New Jersey are poised to follow.

The Golden State has had a reputation for being a trend setter on policy matters over the years, but on this issue, at least, it seems lagging. Northeastern states are the ones driving the agenda now.

In deed, a new front has already been opened up in Massachusetts, which started performing the first same-sex marriages five years ago. There, a lawsuit filed on behalf of 19 gays and lesbians - including the widower of Gerry Studds, the first openly gay Congressman - challenges provisions of the Defense of Marriage Act that prohibit the federal government from recognizing lesbian and gay couples.

This lawsuit alleges that the law discriminates against married lesbian and gay couples by denying them rights like Social Security spousal benefits, family medical leave, and the ability to file taxes jointly.

No doubt challenges to another DOMA provision - that which allows states to deny recognition to legally performed same-sex marriages in other states - are in the works. President Obama has said he would like to see DOMA repealed.

Now don't get me wrong - I'm not trying to underplay the importance of a California victory for supporters of marriage equality. They want it just as badly as their opponents.

But these days, it does seem that proponents of traditional marriage are the ones who need it more. For more than a decade, they have marched across the country easily passing one same-sex marriage ban after another. But that movement seems to have now stalled, and marriage equality activists are the ones on the offensive.

soundoff (182 Responses)
  1. Seattle Steve

    @Rob in Denver;

    Part of the issue is that many religions believe that homosexuality is a sin and will not perform same-sex marriages in their churches. The fear is that with these types of laws being passed churches would have to perform these ceremonies under threat of legal action. While that sounds preposterous on the surface, examples abound of same-sex marriages being 'forced on' various professionals who would, by personal conviction and choice, not participate in these ceremonies. The best example is a photographer - I believe in Arizona - who declined to photograph a same-sex wedding, but was coerced into photographing the ceremony by threat of legal action.

    May 25, 2009 at 11:24 pm |
  2. Anne

    For many of us more conservative voters in California, the issue is not just about who should be able to marry, it is about the ridiculous idea that a constitutional amendment – a MAJOR change to the basic laws of our state – should be allowed to pass with a simple, emotional majority. A 2/3rd majority is required to change the national constitution (and most other states if I understand correctly). A 2/3rd majority is required to repeal an amendment. To allow a simple majority to impose their will on the whole state is not good governance.

    May 25, 2009 at 11:24 pm |
  3. Bruce (Ft Lauderdale)

    In its previous decision, the California Supreme Court noted that religion did not enter into the legal question of marriage, that marriage was valid without any religious rite. It is first a legal contract. Marriage has gathered many legal concepts in the long history of English Common Law, among which is the protection against having to testify against one's spouse. Would that protection, and all others inherent in marriage be included in domestic partner laws, then they would be legally equivalent to marriage. The Massachusetts high court found even that unequal, however, noting that calling marriage by any other name is not truly equal.
    How DOMA will fare in future cases before federal judges, federal Appeals Court and the US Supreme Court will be protracted, with those courts' decisions trying to find the narrowest path rather than taking on a broad Constitutional issue of whether or not the federal government was within its jurisdiction to make that specific law in the first place.

    The California decision did make the point of placing the burden of proof on the state by naming gays as a suspect class, a legal precedent that will color all future court decisions.

    May 25, 2009 at 11:22 pm |
  4. Mary

    Oh boy ! Here we go again !

    What if homosexuality and lesbianism were a result of bad nutrition. What if too much soy (organic estrogen) altered people's chemistry?
    What if our scientists know all this, and they do nothing because they feel it's a way to control the world's population. What if it's all just a really bad experiment?

    Aside from all that -- life on this earth is 'short' eternity is 'long', what if God doesn't want gay marriage? Strong language – 'hate the sin, not the sinner'.

    May 25, 2009 at 11:22 pm |
  5. RB in Houston

    It is amazing how you can use words like "marriage equality" to make it sound like gay "marriage" is a right, and that you are being unequal and discriminatory by not legally recognizing gay "marriage".

    First of all, there is no "right" granted under the constitution for any couple to have a gay marriage. If an individual chooses to live a gay lifestyle, then so be it - they have the right to live like they choose. However, no state or federal government should recognize a "same-sex" couple as having a legal marriage.

    May 25, 2009 at 11:22 pm |
  6. David Nauta

    Coming from The Netherlands, I hope the Supreme Courts rules that proposition 8 is invalid. The proposition is discriminatory.

    May 25, 2009 at 11:20 pm |
  7. Jeff from Santa Cruz

    "Life, Liberty and the pursuit of Happiness." Its an unalienable right people, get with the program.

    May 25, 2009 at 11:19 pm |
  8. Darren from Minneapolis

    I believe that the people have a right to be heard, and that votes should matter. However, I don't think anyone's fundamental rights should be put up for popular vote under any circumstances.

    Suppose someone proposes that people who are Blonde aren't allowed to marry. They get enough signatures and get that proposition placed on the ballot. If a majority of people think Blondes shouldn't marry, it becomes law and enshrined in the state constitution. Does anyone see a problem with this system? What is to prevent other groups or minorities from being persecuted in this matter?

    Regardless of how the Court rules tomorrow, let us hope that the California State Legislature takes a look at how a Constitutional Amendment is ratified there, and make it a bit more complicated.

    May 25, 2009 at 11:19 pm |
  9. MIke

    I just don't understand how one can argue against providing equality when it comes to marriage. Those who oppose same sex marriages would have my support if they can argue against them without using any religious references. When religious groups can interject religious dogma into civil law we cease to be a republic and border on a theocracy. Religion in this country is not suppose to intrude into civil law and Prop 8 and DOMA do exactly that.
    When it comes to California it takes two-thirds of the legislature to agree to put it to the voters. It should take two thirds of the people to change it thru the proposition process.
    Nazi Germany used its laws to remove legal protections not just from Jews but also Christians. We have a republic removed from religion to provide a equallity to all peoples of faith and those of no faith.

    May 25, 2009 at 11:18 pm |
  10. Ben

    If same sex marriage can be approved, polygamy should be approved, too. Why polygamy is banned by US constitution? Why Mormon could not polygamy? Does polygamy affect other people?

    If same sex marriage can be approved, prostitution should be approved, too. Why a consent sex between two adults involved money is illegal?

    If the same sex marriage won't destroy our society value, why prostitution and polygamy will destroy our society value and banned?

    May 25, 2009 at 11:16 pm |
  11. Lisa M. Bloom

    Same-sex marriage is not a threat to traditional marriage. It affects no one except for the two people involved, just as "opposite-sex" marriage does not affect me. This IS and will remain a civil rights issue. Whether it happens tomorrow or not, it will happen! Same-sex marriage will be legal and in my lifetime. Maybe not tomorrow, maybe not next year...but it will in my lifetime.

    May 25, 2009 at 11:14 pm |
  12. J from Iowa

    This is not a "civil rights" issue. To those who say it is, please consider what rights the Constitution is designed to protect. If we view the Constitution through the lens of the Declaration of Independence, it becomes quite clear that it was never designed to protect or promote gay "rights." One of the most poignant lines from the Declaration of Independence states, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

    If inalienable rights are endowed by our Creator, they will coincide with, not contradict, His doctrine. Because it is God who grants inalienable rights, these rights cannot be withheld, controlled, or bestowed by government. So the next question America needs to ask is, "Do we have the right to choose wrong?" While we are given the freedom to choose wrong, it is not a right, and thus does not qualify for protection under the Constitution. If God were to grant the right to choose wrong, there could be no judgment, and no just God.

    May 25, 2009 at 11:10 pm |
  13. Chris Mathews

    "After all these (okay, short) years of debate on the issue, I still do not understand how same-sex couples being allowed to marry is a threat to anyone or anything. How, exactly, do same-sex marriages tear at the fabric of society? It is not as if their existence suddenly convinces thousands of teenagers to think, “Oh, I’ll just be gay now.” Same-sex marriages have no bearing on the continued, effective existence of economy, religion, or polity. Our country will continue on regardless of the existence of same-sex marriage.

    In short, if you don’t approve of gay marriage, don’t have one." via Rob in Denver

    I 100% agree with this! Why can't people just mind their own business? What/Who does/do Same-Sex Marriages hurt?

    May 25, 2009 at 11:10 pm |
  14. David

    How can the Supreme Court of California rule if an amendment to its own constitution is "constitutional"? By definition, an amendment to the constitution is outside of the Supreme Court's jurisdiction, as an amendment is the only means the People have of overriding the court system.

    May 25, 2009 at 11:08 pm |
  15. Duke from Denver

    Problem is ... should marriage even be a state issue if it is deemed "sacred". If marriage indeed is "sacred" it is a religious term which should stay sacred under the individual and her/his respective religion.

    Sacred marriage should not be granted by a state due to the ideal of seperation of church and state. On the other hand if marriage is not sacred what is the point in a marriage? For mere equal protection of property? And if so according to our founding fathers of our inherent due rights to life, liberty and property all accounted for and equally important in a partnership; regardless of gay couples of straight couples, they should all be granted equal protection of life, liberty and property in other words a contractual marriage or civil union. This is a mere binding document under the eyes of a legal standpoint in governing. No one should be treated equal by being "more equal than others".

    If the state truely wanted to do the right thing, they would grant civil unions to all. This certainly would tick many off but it would be truely granting equality to all. Often times doing the right thing is the hard thing. The way it is handled today will certainly create factions in differing groups as we have seen in the past and continue to do so. It may also legalize marriages for a few years and annull it a couple years down the road, having various advocacy groups spend millions fighting a legal issue where the money could be better spent in improving education domestically or feeding starving children in war-torn countries.

    May 25, 2009 at 11:07 pm |
  16. Mike

    If gay marriage is allowed, how do you tell polygamists no?
    Thousands of years of human custom should not be so lightly discarded.
    Besides, haven't we been hearing incessantly about how Obama and the democrats won the election and the rest of us should shut up and get with their program?
    Did not California voters speak very loudly on this subject?
    And despite the writer's comment about momentum being stalled, gay marriage proponents have yet to win a victory at the ballot box, only in courtrooms, something conservatives said would happen when the DOMA was passed in lieu of a Constitutional Amendment.

    May 25, 2009 at 11:07 pm |
  17. Michael Nine

    What's going to happen in the country is there will be same sex marriage states and NOT same sex marriage states. For instance. I live in DC and DC is likely to pass same sex marriage at some point in the future. Maryland is already talking about if this happens, they too will become gay marriage friendly as to not lose a tax paying part of their population to DC. Virginia, oh the Good Old Dominion is so stuck on "traditional values" that when DC gets gay marriage, VA queers will move to DC in droves to protect their families, i.e., the kids they've had in those relationships that have NO RIGHTS, just their parents have NO RIGHTS. All of those anti-gay marriage states will finally get the message when huge numbers of their gay population leave, thus leaving everyone else to fill the coffers because their state chose to be bigoted, homophobic and downright hateful. It will serve 'em right.

    May 25, 2009 at 11:03 pm |
  18. Eoin K.

    I hope this ruling turns out well. Ironically I picked the day before to be sick, so I'll have to watch for the ruling on my mobile browser.

    Still, whichever decision the court makes, momentum is on the side of the gay rights movement. With 4 states already marrying gays and another 3 (hopefully) soon, it's clear that gay marriage is possibly nearing an endgame politically.

    That or it's about to turn into another voting rights for blacks again, with the North and West allowing it and the South refusing.

    May 25, 2009 at 11:02 pm |
  19. Alma

    I hope the California Supreme Court rules against Prop 8 otherwise it will validate discrimination. Very simply, I am a straight person who can marry whom I choose to, so why can't a homosexual person have the same right . Anything else is Un-American. Sad so many people are so mean spirited and fanatical as to discriminate.

    May 25, 2009 at 11:02 pm |
  20. Fred Smythe

    What is the point of gay marriage? Homosexuality is an unpredictable anomaly (birth defect) that randomly occurs during gestation and has nothing to do with heterosexual marriage. Marriage is a concept that fosters monogamy among the heterosexual population and was engendered by tribes to maintain order and hierarchy within a population.

    Homosexuality and dissociative gender disorders do not apply here and the unfortunate unwillingness of the medical community to define this anomaly has led to the notion that is a third gender or a choice when in fact it is not.

    If the Homosexual community (lobby) needs marriage perhaps we should define a homosexual marriage that takes into account the needs of this group, but by no means should we blur or mainstream this particular group on account of their desire to become that which they are not.

    May 25, 2009 at 11:01 pm |
  21. fred

    Does any one know why God destroyed Sodom and Gomorrah?

    May 25, 2009 at 11:00 pm |
  22. Skipper In California

    If the court over turns Prop 8 it proves that the People's vote does not count. Why vote in the first place? Majority said NO, but the court is just going to over rule the people. Seems to me that the Government of California and the Government of the United States have forgotten who thayt work for.

    May 25, 2009 at 10:59 pm |
  23. Jane Collins

    I don't think the people of California (or any state) should have a vote on this issue. Why is it up to the majority to vote on whether or not people in the minority have are allowed to have their civil rights? This violation of rights has gone on too long. Our legislature and courts have an obligation to do what is right., not just popular.

    May 25, 2009 at 10:59 pm |

    As a proud gay man who has been an activist in this movement for equality , I do hope prop hate is annuled and we will all be treated equally, I lived with the same person for over 30 years, when he died I received nothing,we are doing this for future generations.

    May 25, 2009 at 10:57 pm |
  25. mike

    gay marriage is digusting they should get counsling not rights and im not a religious fundmendalist heck im 17 i don't beleive in gay marriage and i don't think it's right at all. And heck seperation of church and state means that even if states allowed gay marriage churchs won't recongnize it so it doesn't even matter. NO GAY MARRIAGE

    May 25, 2009 at 10:54 pm |
  26. Angela

    It's rough when the courts turn against voters. Voters have in all but one case (Arizona, which was later passed) voted in favor of traditional marriage.

    May 25, 2009 at 10:53 pm |
  27. Josh

    my veiw on HOMOSEXUALITY ?
    1) God created homosexuality, and thus 2) that nobody chooses to be gay, and 3) that there is a distinction between being homosexual and same gender sex acts.What's important about 3 is that many people, some fundamentalists and some gay men, mostly, argue that a gay man is homosexual because of his practice of "gay male sex" - defined as sodomy (anal sex).

    But I argue that a man is not gay because he may or may not practice sodomy, but because his orientation (read innate - as opposed to "preference" which is choice) is of the homosexual kind. In other words, a male can be homosexual but not practice sodomy, or even have ever had sex before.

    To illustrate sexual orientation as separate from sexual activity, And true science isn't. In the case of homosexuality, it doesn't matter that Moses or Paul didn't understand that homosexuality was a sexual orientation, Scripture states clearly that "to lie with mankind as with womankind" is a sexual act. Scripture does not condemn homosexuality but the specific sexual act of anal intercourse, which can be and is practiced by both gays and straights alike: "For even their women did change the natural use into that which is against nature..." (Romans 1:26)

    Therefore, it is a lie to say that homosexuality is a sin. And it is even more egregious to brand all homosexuals as "reprobates" and "condemned" for sexual sins attributed to them due to Scriptural ignorance and the long standing tradition of that ignorance.

    The greatest injustice that we can do to a person is to rob them of the truth and then tell them lies.

    This is my veiw and i STAND BY THEM

    May 25, 2009 at 10:52 pm |
  28. Kevin

    This issue is wrong in the sense of decency. Gay people aren't even allowed to be gay in most religions and countries. Many countries does not even have laws against gays, because gay people doesn't even exist in their countries. To my opinion, that is right in my book and many other peoples' as well. I really want this propostition to pass. If it does, then it will show a huge message to the gay and lesbian society that marriage of gay and lesbians are wrong. I do not see gay marriages as threats to society, but it shows that gay marriges in America will show to other countries the indecency and pure ugliness that it holds in having gay marriages. I know America isn't the first or only countries with gay marriages legallized, but it's (America) a good place to start for the anti-homosexual society.

    May 25, 2009 at 10:52 pm |
  29. Alex

    I always see the idea that you should ban gay marriage just dumb. I mean, if someone wants to marry just let them! It's not going to suddenly make the economy fall, or society as we know it to colapse. I mean, if you don't support it then just don't get a same sex marriage. I never understood why people get so angry at other people when thier choices don't even effect thier lives. It would be funny if they passed prop 8 and same sex marriage started to sweep the nation after going through the north. They'll just be like "Didn't we start this?" but really I think it's just a little over the top, banning it. Iowa, Vermont, and Maine don't have some gaping hole on the U.S. map now. Thier perfectly fine.

    May 25, 2009 at 10:51 pm |
  30. Royce

    Citizens of this country can not use their religious meaning of marriage with which to have the government ban others from marriage.

    Society can not say, you must be a heterosexual in order to be married.

    If you want to protect marriage then ban divorce.

    May 25, 2009 at 10:51 pm |
  31. shane in Texas

    Im so tired of this debate. What a huge waste of money.

    I think government should get out of the marriage business. The govt should issue civil unions to EVERYONE. Is someone wants to follow that up with a chruch wedding great.

    Church = marriage
    Govt = civil union.

    What I dont understand is how a civil union is different than a marriage now in the state of California? Does a married person get more rights than a civil unioned person (not sure of the adjective - maybe that's the whole problem...)

    I personally feel like many of the gay activitist just want to put a stick in the eye of the church goers.


    May 25, 2009 at 10:50 pm |
  32. Katie Faye

    The people of California voted (we the people) and have final authority with regard to the issue of same-sex marriage recognition. If the courts reverse the people's decision why should there ever be a vote put before the people again. The voting public should have a voice and if they don't....we have a government run by judges. People will have no input into any decision making processes just like socialistic governments who lord over the people.

    May 25, 2009 at 10:50 pm |
  33. John Davis

    The Supreme Court of the U.S. needs to ultimately stop this insanity and rule in favor of marriage equality. I am ashamed to live in a country where I have certain rights but my neighbors do not. How can we continue to treat our brothers and sisters in this manner? And how sad for those California couples who may possibly be stripped of their rights. This seems to run contrary to our Constitution. It's a national shame that needs to be corrected.

    May 25, 2009 at 10:46 pm |
  34. Christine

    Why do voters even vote anymore when the courts will only over rule them! Voters have no say anymore and that sucks!

    May 25, 2009 at 10:45 pm |
  35. Kalik Crick

    The only thing that matters to me is that the will of the people be accepted and approved.

    Elections have consequences and I don't believe that politicians and judges should go about overturning something that the population voted on.

    Just because an issue was voted on and one did not like the outcome, one should not go around trying to over rule and over turn the results.

    Obama won California and Republicans should not go around challenging the results.

    McCain won Missouri and Democrats should not go around challenging the results.

    May 25, 2009 at 10:45 pm |
  36. Cheyla

    The religious right has led the abuse and discrimination against this minority for decades – one hopes that we can slowly begin to crawl out from under this oppressive yoke.

    May 25, 2009 at 10:43 pm |
  37. Sara

    In 20 years we will look back and think to ourselves..did that really happen? I don't care who you are or where you live...you know this is coming BECAUSE you can NOT deny people inalienable rights!

    May 25, 2009 at 10:43 pm |
  38. Willie in Cedar Falls, Iowa

    Why not have a vote to eliminate the GOP? It is a religious belief. Just ask one.

    May 25, 2009 at 10:42 pm |
  39. ID51

    The voters spoke. That should have been the end of it. Leave the marriages that have already taken place alone, but that should be the end of it. Votes don't count for anything (on any issue) if the Supreme Court overturns the vote.

    May 25, 2009 at 10:41 pm |
  40. Steve in MA

    The Majority cannot take a vote and strip a minority of constitutional rights. This is the lesson of West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). If the California Supreme Court were to sanction Prop. 8, it would enable a future majority of Hispanic voters of California to theoretically hold a vote and strip Caucasians of their right to vote. Once a constitutional right has been bestowed, it is irrevocable and free of the will of majorities. That is why the Supreme Court MUST, as a matter of law, invalidate Prop. 8.

    May 25, 2009 at 10:39 pm |
  41. Dino, Washington, D.C.

    Even if the Calfornia State Supreme Court votes to uphold Prop 8, I think there is a good chance that the voters of that state will vote to repeal it eventually. As the article states, "the train has already left the station", and at the rate things are doing, in the next decade or so, there might be as many as ten states that have legalized same-sex marriage.

    Supporters who are seeking to ban same-sex marriage, constantly argue that marriage is a 5000 year institution that is the 'bedrock of society'. Well marriage today is a little different than it was in 3000BC.

    May 25, 2009 at 10:39 pm |
  42. Rob

    Marriage is between a man and a woman. When lesbian and gay couples can procreate naturally, then maybe we may need to re-think the definition of marriage. Until that time, what say we go with nature?

    May 25, 2009 at 10:35 pm |
  43. K

    what's often forgotten when debating the "issue" is that there are real people affected. my wife and I may no longer be married after 10am tomorrow. How do we explain that to our children? Why do we have to get jacked around when straight people pervert the concept of marriage with the 50% divorce rate? Our relationships being recognized somehow hurts that?

    May 25, 2009 at 10:33 pm |
  44. Eric

    If the courts overturn this, it will be a very sad day in history!

    What good is voting, if your vote doesnt stand?

    May 25, 2009 at 10:32 pm |
  45. thom

    How come this matter isnt closed the people of cailfornia voted and dont want gays to marry. "Tolerance is the last virtue of a dying society."

    May 25, 2009 at 10:31 pm |
  46. James Butler

    It's wrong, point blank. We are a Christian nation (regardless of what Mr. Obama says) and we have to hold on to those same values that our fore fathers believed in. God is what has made America great, and if we start spitting in his face with such filth and nonsense, America will be brought down. I just don't get the purpose of it??? Man and Man can't make a life or vice versa; if homosexuality was correct, wouldn't it make sense for the same sex to be able to procreate w/ each other?

    May 25, 2009 at 10:31 pm |
  47. C. Bush

    Doesn't the US Constitution mention the pursuit of happiness? This country has more pressing problems than same sex marriage. Whether or not same sex marriages comes, it won't have any effect on my 12 year same sex relationship. We just have to keep working toward equality for all Americans.

    May 25, 2009 at 10:28 pm |
  48. Annie Kate

    Whichever way the Supreme Court rules this issue will not be over – the losing side will protest and the fight will continue on. If the Supreme Court does rule that prop 8 is invalid I hope it will not annul the marriages made in good faith in California while same sex marriages were legal. We generally don't make a law retroactive like that and it would seem pretty vindicative to that in this case.

    May 25, 2009 at 10:01 pm |
  49. Valbuena

    I want my rights back, and so do others alike who plan to marry in the future.

    Prop 8 stripped off the option that was given for same-sex couples to marry, proving even today that we can easily take away the peoples' civil rights.

    May 25, 2009 at 9:53 pm |
  50. Rob in Denver

    After all these (okay, short) years of debate on the issue, I still do not understand how same-sex couples being allowed to marry is a threat to anyone or anything. How, exactly, do same-sex marriages tear at the fabric of society? It is not as if their existence suddenly convinces thousands of teenagers to think, "Oh, I'll just be gay now." Same-sex marriages have no bearing on the continued, effective existence of economy, religion, or polity. Our country will continue on regardless of the existence of same-sex marriage.

    In short, if you don't approve of gay marriage, don't have one.

    May 25, 2009 at 9:04 pm |
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