Same-Sex Marriage Hits A Wall In California

The battleground is expected to switch back to the voters, with a new referendum as early as next year, now that California's highest court has upheld the state's ban on same-sex marriage. In a 136-page-long decision, the court rejected arguments that the ban approved by the voters last fall was such a fundamental change in the California Constitution that it first needed the Legislature's approval.

In the ruling, the court said the petitioners and the Attorney General essentially were complaining that it is "just too easy to amend the California Constitution" through a referendum such as Proposition 8, which imposed California's gay marriage ban. "It is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling continues. "If the process for amending the Constitution is to be restricted… this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative."

Justice Carlos Moreno, who was considered by President Obama as a possible U.S. Supreme Court nominee, was the only dissenting opinion in the 6-1 decision. He says it "strikes at the core of the promise of equality that underlies our California Constitution."

At the same time, the court declined to overturn the 18,000 gay marriages that took place before the ban was imposed. The reason, according to the ruling, is that changing the legal status of those marriages would result in "throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives."

With same-sex marriage legal in five states, and two others considering legalization, opponents see the California decision as a "shot in the arm." So says same-sex marriage opponent Bruce Hausknecht of the group Focus on the Family Action, who tells The Wall Street Journal this case will be used "to communicate to people all around the country that at the end of the day, citizens do still control how they're governed."

A Gallup poll released today and based on questions asked in early May found 57 percent were opposed to legalizing same-sex marriage with the same rights as traditional marriage, very nearly the same, or a few percentage points' difference, from the amount of opposition found in surveys in each of the past five years. Going back further in time, shifting opinion is clear: opposition was 68 percent in 1997, slowly and steadily inching down to the current level of opposition.

Support for gay marriage at the same time picked up dramatically, with 27 percent backing this position in 1997, steadily climbing to 42 percent by 2004, and hovering within a few points of that mark ever since, registering this month at 40 percent.

Survey answers broken down according to the self-identified political ideologies of survey participants produces some interesting contrasts: 75 percent of liberals favor legalization; 80 percent of conservatives oppose it; while moderates split down the middle, with 50 percent in favor and 46 percent against.

Not surprisingly, support also varies according to age, steadily declining from 59 percent among America's youngest adults down to 32 percent among senior citizens.

Support for gay rights not involving marriage is another question: 56 percent say sexual relations between same-sex consenting adults should be legal, essentially the same as last year, but a significant increase over time: in the late 1970s and early 1980s, that number was in the low 40s and dipped to 35 by the late 1980s.

Current support is also strong in some other areas: 67 percent say same-sex domestic partners should have access to health insurance and other employee benefits and 73 percent believe they should have inheritance rights.

To learn more about this subject, see our issue guide on gay rights, which includes a timeline of 400 years of laws, court cases and other key milestones.