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The New 'I Do' - The Way We're Handling It Is Pretty Half-Baked

Publication Date: 
June 15, 2008
The Washington Post
Joe Matthews

Pam Karlan is quoted in the Washington Post about potential challenges to gay marriage even though the right to marry was upheld by the California Supreme Court:


It's far from clear that California's institutions -- the courts, legislature, governor or ballot process -- possess the credibility or power to bring a lasting resolution to any public debate, especially one as contentious as same-sex marriage. Yes, gay marriage supporters are likely to claim more victories than defeats at all levels of California government. But victories in specific lawsuits or bills don't guarantee the unambiguous legalization of same-sex marriage here. The state's madcap legal and political systems offer too many ways to frustrate or delay a final decision. For gay couples and their supporters, California could become an expensive, time-consuming quagmire -- gay marriage's Vietnam.

How can this be, you ask, after the justices' ringing endorsement of gay marriage rights?

Because California has a powerful ballot-initiative process -- the one that in 2000 allowed voters to outlaw gay marriage in the first place -- and the state Supreme Court doesn't always get the final word. Consider the ballot initiative that Californians will vote on this fall. Sponsored by gay marriage opponents, the measure would define marriage as a union between a man and a woman and put this wording into the state constitution, thus reversing the Supreme Court's ruling.

Or not.


Even if these legal efforts go nowhere, the political battle will continue. If the ballot initiative is defeated in November, nothing prevents its backers from drawing up another one, to come before voters in 2010, the time of the next regularly scheduled statewide election -- or even earlier if the state holds a special election. "This is one of the problems with the initiative process," said Pamela S. Karlan, a scholar at Stanford Law School. "There isn't any way of saying, 'The voters have spoken, and it's over.' They can be asked to speak on it again and again and again."