Opinion

Commentary: Californians still perplexed by Prop 8 gay marriage ban

Kelly McAllister, left, and her wife, Marci Burba, both of Sacramento, attend a gay rights rally protesting the passage of California's Proposition 8 at Cesar Chavez park on Nov. 13, 2008, in Sacramento, California. (Autumn Cruz/Sacramento Bee/MCT)
Kelly McAllister, left, and her wife, Marci Burba, both of Sacramento, attend a gay rights rally protesting the passage of California's Proposition 8 at Cesar Chavez park on Nov. 13, 2008, in Sacramento, California. (Autumn Cruz/Sacramento Bee/MCT) MCT

Advocates of same-sex marriage rights were, to put it mildly, stunned when California voters passed Proposition 8 nearly two years ago, placing a ban on such marriages in the state constitution.

Californians' acceptance of same-sex unions had been steadily growing, the state Supreme Court had overturned a statutory ban on gay marriage, and the 2008 presidential election had a big turnout of young and nonwhite voters presumed to support "marriage equality," as advocates call it.

It later became apparent from exit polling, however, that Proposition 8 enjoyed strong support among black and Latino voters, which may have been decisive.

Gay marriage advocates suffered another setback when the state Supreme Court upheld the measure's validity. They divided over whether to pursue a Proposition 8 repeal in 2010, ultimately decided it would be an unwise tactical move, opted for a federal court challenge, and are now awaiting Judge Vaughn Walker's decision.

In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal "Defense of Marriage Act," which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.

Although Tauro's ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states' rights, to decide whether to recognize same-sex marriage, and the federal law "offends" those rights.

Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states' rights matter, neither could they overturn California's anti-gay marriage law, Proposition 8.

Walker is not bound by Tauro's decree – which means that ultimately the issue may be headed to the U.S. Supreme Court, whose swing vote, Sacramento's Anthony Kennedy, could have the last word.

Meanwhile, back in California, the political debate continues with a new poll by the Field Institute finding that 51 percent of the state's registered voters support same-sex marriage rights, the same number that Field found in a 2008 survey just before Proposition 8 passed.

Repealing Proposition 8 via the ballot box, therefore, would be chancy at best since the actual turnout of voters, both numerically and in terms of characteristics, determines the outcome. Polls on such a hot-button issue may not reveal true sentiment because some respondents may not want to appear to be prejudiced.

The University of Southern California's Annenberg School of Communication will provide more fodder for the debate later in the week, when it releases its own poll declaring that "only one in five Californians believe passage of Proposition 8 is a 'good thing' for the state," which appears to conflict with Field's findings.

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