The latest struggle over who decides the legality of gay marriage - citizens, lawmakers, or the courts - played out in the nation's most populous state last week. The California legislature was the first to approve a bill legalizing same-sex marriage, although Gov. Arnold Schwarzenegger has vowed to veto it.
The political stand-off raises legal issues specific to California, state and national observers say. The legislature's attempt to broaden the definition of marriage is in direct conflict with a citizens' initiative passed in 2000 defining legal marriage as between a man and woman only. That citizen's initiative itself, Proposition 22, is also being challenged in court.
But the recent move by Sacramento legislators emphasizes what some observers see as a shift in public opinion that appears to be more accepting of gay marriage. Still, others anticipate the bill could add to the backlash against the gay-marriage movement that prompted 11 states to ban same-sex marriage through ballot initiatives last year. Indeed, California conservative groups have heightened efforts to place an initiative before voters that would recognize heterosexual unions only.
National pollsters report more acceptance of gays and lesbians in a variety of other contexts. What happens in California could set the tone for how other states deal with the issue legislatively.
"There will be lurches backward and forward as some states throw up roadblocks to such arrangements and others embrace them," says Elizabeth Garrett, a law professor at University of Southern California who tracks state initiatives. "But overall the support for civil unions is getting stronger and stronger."
A recent statewide poll here shows that voters are evenly split (about 46 percent for, and 46 against) same-sex marriage. Five years ago, 61 percent of voters backed the initiative that defined marriage as between a man and woman. "Moves by the California legislature are part of the national trend toward greater equality for same-sex couples that has been growing coast to coast for the past few years," says Ms. Garrett.
San Francisco Mayor Gavin Newsom reignited the issue here last fall when he directed city officials to permit same-sex marriage licenses. Hundreds of couples who obtained the licenses in San Francisco later learned their nuptials were declared invalid by a court ruling that said a mayor could not ignore state law.
Some social conservative groups reject the analysis that public attitudes are shifting to embrace same-sex marriage. They claim that public opinion polls were roughly 50-50 before the Proposition 22 vote, but that the measure's overwhelming victory was a truer litmus test.
"The only vote that counts is at the ballot box, and the people spoke clearly on Prop. 22," says Karen England, of Capitol Resources Institute, a Sacramento group that advocates for family issues. "This legislature knows what the people feel and were afraid to put their measure to a public vote, which they could have done. Instead they are trying to make an end run around the will of the people."
Governor Schwarzenegger is being accused of political posturing with his veto to protect his conservative base in the face of declining approval ratings. But whatever ensues with the legal and political wrangling here, national gay and lesbian rights groups say they are encouraged by the legislature's move.
"Like activities in Massachusetts and Connecticut which have kept the issue alive despite negative attacks, the California measure is a teachable moment," says Seth Kilborn, marriage project director of the Human Rights Campaign, the nation's largest gay/lesbian political organization. "It is an opportunity to talk to voters about why same-sex marriage is important."