The court also will decide whether to uphold the marriages of an estimated 18,000 same-sex couples who tied the knot before Proposition 8 passed in November. It's generally unwise to place bets on rulings based on what's said during a hearing -- justices are notorious for playing devil's advocate as a way of testing their leanings -- but during the arguments on Proposition 8, no real support was voiced by the court for ending marriages that were entered into legally and in good faith. Though the constitutional amendment says simply that the state will recognize only marriages between a man and a woman, it does not make the requirement retroactive.
Opponents of same-sex marriage could bring another initiative forward to end those marriages, but considering that Proposition 8 passed with a modest majority, it is unlikely that California voters would be willing to rescindthe marital status of lawfully wedded couples.
State recognition of those marriages, though, would open doors to complicated new lines of argument. Same-sex marriage has been legal in Massachusetts for nearly five years, and for a much shorter time in Connecticut. Those marriages also were conducted legally and in good faith, and until Proposition 8 passed, they were recognized here. Can that recognition be withdrawn retroactively? If more such couples move into this state, as a practical matter Proposition 8 will be weakened, as well as being seen as conflicting with reality.
Two groups already have permission to gather petitions for initiatives to overturn Proposition 8, though polls show that these might be politically premature; the state is nearly evenly split on the subject, numbers that will surely change as more young people, who strongly support same-sex marriage, become voters.
The Vermont Senate passed the new gay-marriage legislation on a commanding 26-4 vote, and the House is expected to approve it as well. Gov. Jim Douglas says he will veto it; it is unclear whether the two houses have enough votes to override. But the New Hampshire Legislature quickly followed its neighbor, with the state House voting narrowly Thursday for same-sex marriage. No matter which way the California Supreme Court rules, the campaign to give equal marriage rights to gay and lesbian couples -- and the slow but building acceptance of these couples -- is inexorable.