In California the new mantra among marriage rights activists can be boiled down to a three-word question: “2010 or 2012?”
For supporters of same-sex couples’ right to marry, the debate over challenging 2008’s Proposition 8 state constitutional amendment banning legal marriage for gay and lesbian partners has become about whether you support putting an initiative seeking to repeal Prop. 8 on the ballot in November 2010 or two years later. At times the discussion has gotten spirited.
There is also a potential complication that hasn’t been widely discussed: Marriage equality supporters in California could face opposing referenda from anti–gay marriage activists indefinitely, creating an expensive and time consuming back-and-forth that would force marriage equality proponents into permanent campaign mode.
“Everyone is lost in the 2010 versus 2012 discussion,” says Chad Griffin, board president of the American Foundation for Equal Rights, the group behind a federal lawsuit filed by prominent attorneys Theodore B. Olson and David Boies on behalf of two same-sex couples who were denied marriage licenses in California. “We need to dig a little deeper to see what we are arguing for. It’s an absurd position to be in.”
What’s absurd to Griffin is that while supporters of marriage equality debate 2010 versus 2012, their opponents could easily be having their own discussions about mounting a ballot initiative in 2012 or 2014 that would once again ban legal same-sex nuptials.
“Would it shock me if we prevailed in 2012 and a group tried to take it away in 2014?” asks Marc Solomon, marriage director for LGBT advocacy group Equality California. “It wouldn’t shock me at all. That’s the way the California system works.”
California is unusual even among the 17 or so states that allow for voter-driven constitutional amendments via the ballot box. The rules in California state that anyone who can get valid signatures from registered voters equal to 8% of the votes cast in the last gubernatorial election (currently around 700,000 signatures) and follow a series of relatively easy rules can get a state constitutional amendment on the ballot -- one that needs only a simple majority to pass.
Some other states require a higher percentage of valid signatures from gubernatorial voters or require a percentage of signatures based on presidential election vote tallies, geographic distribution, or the overall number of registered voters. Although Massachusetts requires a lower percentage of signatures from gubernatorial voters than California, the Bay State constitution doesn't allow initiatives to overrule judicial decisions.