I wouldn't have left my comment on the other post, had I seen this, lest I be mistaken for a homophobic bigot rather than merely a punning smartass. :)

Although I'm only partially in agreement with you on the gay marriage issue, I agree wholeheartedly that judicial fiat was the wrong way to go about resolving the matter. I'm no lawyer, mind you, but I have to wonder how such an amendment would fare vis-a-vis the "full faith and credence" clause of the US constitution. Does the state constitution take precedence?

Joel, first, it's "full faith and credit", not credence. The federal Constitution is the Supreme law of the land, which means if a state constitutional provision is against the federal constitution, then the state constitutional provision is void (this is a very basic explanation). But, how a case is decided is contingent on the issues raised by the parties. In the marriage cases, the parties were smart not to invoke federal law, which means the decision could not go beyond the California Supreme Court.

The tough issue will be what happens to the marriages that take place between now and the election (should the amendment pass, which I seriously doubt it will). The federal Constitution does not allow States to pass laws which impair the obligations of contracts, at least contracts that have already been made. If you take marriage to be a contract (it is at least a civil compact) then the marriages that happen between now and then can not be made void.

As far as happening by judicial fiat, I'm not all that opposed. The ban on inter-racial marriage was struck down by judicial fiat. In California it was back in the 1940s, some 25 years before the US Supreme Court did it. And the reasoning in this case was pretty much the same.

Another reason I don't worry so much about the judicial fiat angle is that we are not - much to the shock of most average citizens - a democracy. We are a Republic, founded on democratic ideals but weary of the exercise of majoritarian powers. The courts have long protected "discrete and insular minorities" from the will of the majority through both the Equal Protection Clause and the Due Process Clause.

As for the Court's decision in this case, having read through it, it stands on pretty solid ground, legally speaking.

As for the chances of the initiative, the early polls show it only at 52%. Usually this far out the pro side wants to be over 56%. This is because yes-votes tend to become no-votes more than no-votes become yes-votes. Also, undecideds tent to break for no (as a side note, "when in doubt, vote no" is a pretty good strategy in California).

KG, perhaps I'm just more cynical than you, and I admit I haven't read the opinion yet, but the idea that the California Constitution enshrines a right to gay marriage that was just mysteriously discovered after more than 100 years doesn't initially pass the laugh test in my mind. It reeks of the absurdity and, well, utter lawlessness of Justice Kennedy's "sweet mystery of life" paragraph from Lawrence v. Texas. Then again, I'm used to the Florida Supreme Court, which really does regard all authority but its own as mere suggestions.

But KG, the problem is not with striking down a law that conflicts with the constitution. I have no issue with that at all.

The problem is judges deciding on a new interpretation, often with no basis in history, to decide that a law has become unconstitutional. I don't know the exact language of the applicable sections in the California constitution but gay marriage was never contemplated as being encompassed by it until very recently.

Same was true for inter-racial marriage for a long time, but the difference is that denial of due process and equal protection based on race are banned by the 14th Amendment and similar sections in state constitutions. There is no such clause covering sexuality on which to strike down the law.

And it leads to backlash, as you can see. Some time back, I put the legalization of gay marriage out 10 years. Later I revised it to five because people, especially younger people, are becoming much more accustomed to the idea. But I think this just set it back.

As for the chances of passing, I hope you're right but I'm not so sure. Prop. 22 passed with more than 60% of the vote. That was several years ago and things have changed, but I'm not sure they've changed quite that much yet.

I was in the process of writing a very long comment, I think I'll turn it into a post instead... but it likely won't be until sometime tomorrow, or maybe even the weekend.

Joel, first, it's "full faith and credit", not credence.

Mea stupida. I found that out when I went to look up the actual text after I posted. I think you're probably right that it won't pass. I was surprised the initial ballot measure did, and I think public opinion has grown more positive on gay marriage since then.

The federal Constitution does not allow States to pass laws which impair the obligations of contracts, at least contracts that have already been made. If you take marriage to be a contract (it is at least a civil compact) then the marriages that happen between now and then can not be made void.

Again, I don't appreciate the legal niceties, but it seems to me that the entire debate is over whether marriage is equivalent to other civil compacts or whether it is a unique thing. It seems to me that the legal bases for annulling a marriage are more complex than for other contracts, which makes me wonder if a marriage contracted based on this decision without accompanying legislation legalizing it could be declared null after the fact.