Friday’s dramatic passage of a law permitting same sex marriage in New York State raises the obvious question: What does this mean for California? The answer? A squishy “too soon to tell.”
New York has a set of circumstances unique to that state, including an extremely popular Catholic governor with an openly gay “brother-in-law”; relatively liberal Republican legislators; Wall Street Republicans willing to buck up wobbling GOP legislators, strong public support for gay marriage (58% in recent polls) and the ability to write the law in a way that allayed concerns of the Catholic Church.
Here in California, Prop. 8 is mired in legal battle. While supporters of same sex marriage have won important legal victories, including the recent rejection of a motion to strike down Vaughn Walker’s Prop. 8 decision, the issue is in some ways on the slow track.
The appeal of Walker’s decision is stalled at the 9th Circuit, which awaits legal advice from the California Supreme Court on whether Prop. 8 backers have legal standing to appeal Judge Walker’s decision. A date for oral arguments has not been set. It was thought to happen in September, but until a 7th justice is appointed by Governor Brown to replace retired justice Carlos Moreno my guess is the court will be reluctant to schedule it. Otherwise there’s a risk that a random Appeals Court judge will sit in as the 7th justice and take part in the decision — not a good scenario for the new Chief Justice.
As for the politics, insiders say it’s highly unlikely gay marriage will be back on the ballot in California before Prop 8 plays out in court. That could be 2012 or 13 … meaning the 2014 ballot at the earliest. Reason: Who wants to fund a ballot measure that could lose and undermine what is so far a successful legal challenge in federal court?
So, as for the impact of New York on California? It surely makes same sex marriage more broadly available and therefore less “marginal” in the U.S. That could affect judges, including Anthony Kennedy who most agree is the key US Supreme Court justice on this issue. They often don’t like to get too far out in front of the public.
That said, at least two other states — Minnesota and N. Carolina — are said to be considering ballot measures banning gay marriage. So — this issue is far from done.