Gay Marriages in California Are Safe, Gay Marriage Not So Much

Observers are predicting that the California Supreme Court will uphold Proposition 8, the 2008 ballot initiative that amended the state constitution to ban gay marriage, by a 5-to-23 vote. At the same time, the court seems likely to rule that same-sex marriages performed before the initiative remain valid. The court, which in a 4-to-3 decision last year ruled that an earlier gay marriage ban was unconstitutional, heard oral arguments in the case yesterday. Although I think the government should treat gay and straight couples equally, the predicted decision seems legally correct to me. The issue before the court is whether Proposition 8 merely amends the constitution, which can be done by a popular vote, or fundamentally revises it, which requires either a two-thirds vote of the legislature or a constitutional convention.

Last week I discussed a proposed compromise on gay marriage involving federal recognition of civil unions. The week before, I noted that Utah's governor had come out in favor of civil unions for gay couples. In December I urged both sides in this debate to recognize the distinction between public and private discrimination. Other Reason coverage of gay marriage here.