So here we are: It appears very likely that, on or before June 5, 2009, the California Supreme Court will uphold the “right” of California voters to pass Prop 8, taking away a right — the right to marry — that the court had barely more than a year ago deemed fundamental. (Under California law, the court must decide the case within three months of oral argument.) This was a substantial risk that those filing the suit took, and many believed that this legal terrain would have been best left unmapped.
I don’t agree, because I think that the court’s decision, assuming I’m right in my prediction, will underscore that we have substantial work to do to win “hearts and minds.” The reality that this struggle will continue to be difficult hit home immediately after last November’s elections: While they’re already being forgotten in the California-consumes-all-energy frenzy surrounding Prop 8, initiatives in several other states were also blows to the marriage equality movement. In Florida, for example, more than 60% of voters uncharitably passed an amendment restricting not only marriage rights but other forms of relationship recognition. It remains to be seen how broadly the law will be interpreted.
But there is plenty of good news, too. As the always eloquent and perceptive Hendrik Hertzberg observed at the time, these measures had the feel of a “last stand.” His piece is required reading for those inclined to despair at recent (and upcoming?) developments and setbacks. Marshalling the pile of relevant polling data available as well as marriage developments in Massachusetts and Connecticut, he argues that the public’s view of gay rights and relationships is moving inexorably in a progressive direction.
He’s right, and things have only moved more briskly since last November. Indeed, Prop 8 may ultimately be remembered not because of its radical removal of fundamental rights from a “suspect class,: but because of the cascade of dormant activism it unleashed. In a post later today, I will offer a review and assessment of the legal, social, and political work that has been done since the dawning of the Age of Obama. As you’ll see, things are getting better.