My head and my heart have been in battle ever since I learned that the California Supreme Court would take up the constitutionality of Proposition 8, which eradicated the right for gays and lesbians in California to marry less than a year after the state Supreme Court granted them the right. On the one hand, I was appalled that Proposition 8 had passed in a state with a long (though not unblemished) history of tolerance towards gays and lesbians. I wanted a do-over, a way to stop this abomination from becoming law. But even as I felt that reflex, I also recognized that for the state Supreme Court to overturn a ballot initative that had been supported by a clear majority would risk a constitutional crisis. The state has a clear procedure for voting things like this into law, and the people behind Proposition 8 had followed all the rules. As much as it makes me sick, citizens of a state have the right to enshrine this hate in their constitutions. One of the pitfalls of the democratic process, I guess.
Today, the California Supreme Court announced that it was upholding the constitutionality of Proposition 8. Thankfully, they also upheld the legal validity of the 18,000 marriages performed between the Court's prior ruling that legalized gay marriage and the passage of Prop 8. To have invalidated those marriages would have been devastating. Instead, by preserving them, the Court is forcing the issue in a most interesting way. Recognized as legal and valid marriages, the law of California will now be forced to find ways to accomodate same sex marriages. Legal concepts like full faith and credit will still apply, and battles can still be fought. Even though there won't be more gay marriages coming to the state anytime soon, every single day that close-minded Californians have to learn to live with gay marriage in their midst is a day that weakens the power of intolerance. The framework, both legal and in the minds of the public, can now be laid for forcing the people of California to accept in the future what they could not accept now.
As Andrew Sullivan noted, the fight must now shift to those 18,000 couples. They will prove to the people of California that there is nothing to fear from gay marriage. Once they are accepted as normal, as more and more states move to legalize gay marriage, opposition will hopefully soften. The only way for California to undo their mistake here is through another Proposition that eliminates the discriminatory effect of Proposition 8, and that groundwork will take years to lay down. In that time, gays and lesbians in California and elsewhere should champion those among them who were able to legally marry before the prohibition became effective. And those individuals in such marriages will need to fight for equality in all aspects of their marriage, because today's ruling makes clear that they are entitled to it.
I am torn, because as much as I hate the decision, I know it was the only real choice that the Court had. If the will of the voting public had been undone through the courts, it could have forced a potential constitutional crisis in the state. The will of the people did speak last November, and though we do not like what it said, we need to change the minds of the voters rather than trying to appeal to a higher power. In California, the people have the ultimate power anyway. It is their minds that need to be changed.
