A Different Time

As he savored Thursday's historic decision by the California Supreme Court legalizing same-sex marriage, San Francisco Mayor Gavin Newsom couldn't resist gloating. "As California goes, so goes the nation," he said, wagging his finger in the air as he stood on the same city hall staircase where thousands of same-sex couples wed four years ago. "It's inevitable," Newsom grinned. "The door's wide open now. It's going to happen, whether you like it or not. This is the future, and it's now."

In 2004, when the mayor ordered the city to start issuing marriage licenses to same-sex couples in a deliberate violation of California law, provoking the court challenge that led to Thursday's state Supreme Court ruling, even fellow Democrats criticized him for giving conservatives a cudgel to use against John Kerry in the 2004 presidential election. In that election year, 13 states had "defense of marriage" acts, defining the relationship as a union between a man and a woman, on the ballot. The Supreme Court of Massachusetts had legalized gay marriage. Pictures of same-sex couples smooching in San Francisco were in fact a powerful get-out-the-vote tool for socially conservative voters, who propelled the anti-gay marriage measures to victory in all 13 states, and helped bolster George W. Bush's re-election campaign.

But 2008 isn't 2004. Even though opponents of gay marriage in California vow to fight on—a measure to amend the state constitution to ban same-sex marriage is likely to be on the ballot this November—the issue is unlikely to pack the same punch as it did only four years ago. Here's why:

1. The country has moved—and so have the candidates. Even though a majority of Americans (56 per cent, according to a Gallup poll last week) oppose gay marriage, public opinion is shifting, especially when it comes to conferring equal rights to same-sex couples by granting civil unions. Barack Obama and Hillary Clinton oppose gay marriage but approve of civil unions. John McCain opposes both, but also says he opposes discrimination. All three oppose a federal amendment to define marriage as a union between a man and a woman (although McCain did support a similar measure in Arizona, citing his belief that marriage is a state issue, not a federal one.) As couples flock to California to get married, even more Americans will be exposed to the "lived experience" of same-sex couples and families, says Evan Wolfson, of the Freedom to Marry project, an advocacy group. "It's much easier to whip people up over the hypothetical." Even Dick Cheney, no liberal, is the grandfather of a child born to a same-sex couple.

2. John McCain's heart isn't in it. The presumptive Republican nominee put out a statement affirming his belief that marriage should be between a man and a woman, and for good measure, he chided the California Supreme Court for overstepping its bounds. "John McCain doesn't believe judges should be making these decisions," his campaign said. McCain has always couched his position on same-sex marriage in terms of states' rights. But McCain watchers say it's more important that the candidate didn't mention the California decision—or his own position on gay marriage—in a major speech he gave the same day outlining his presidential agenda. "His heart's not in it," says one informal adviser to McCain, not authorized to speak for his campaign, of the battle over gay marriage. McCain is no favorite of social conservatives and is playing for independents in the fall. While the issue may help him gain traction with some on the religious right, it's unlikely that agreement on gay marriage alone will be enough to mobilize conservative voters who are wary of McCain's maverick streak on social issues. Besides, does he really want to contradict his No. 1 Republican backer in California, Gov. Arnold Schwarzenegger, who said on Thursday that he plans to uphold the court's decision and will oppose a likely ballot initiative this fall to amend the California constitution in order to define marriage as a union between a man and a woman?

3. Voters care more about other issues. Jobs. Mortgages. The war. Gas prices. In 2008, only a few states—California, Florida and Arizona—are expected to have marriage-related measures on the ballot. In 2004, 13 states voted on such measures (all passed.) Opponents of same-sex marriage say even though they lost a big court case, the voters are on their side. (27 of 28 defense-of-marriage measures have passed since 2004). "When voters have the chance to vote, they overwhelmingly support the traditional definition of marriage," says Glenn Lavy of the Alliance Defense Fund, one of the groups that argued unsuccessfully before the California Supreme Court. But proponents of same-sex marriage say voter sentiment is not their biggest concern. "The number of voters who plan to cast their vote for president on this issue is miniscule," says Wolfson.

4. It's not a partisan fight. Six of the seven California Supreme Court justices were appointed by conservative Republican governors. The court invoked a 1948 California ruling lifting the ban on interracial marriage (one the U.S. Supreme Court did not follow until 1967), as a basis for its ruling. While the court was split, 4-3, California Chief Justice Ronald George, a Republican appointee, wrote the majority opinion, declaring the state's Constitution protects "the right of the individual to establish a legally recognized family with the person of one's choice." He said the Constitution "properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples."

© 2008