I’m surprised that Judge Walker will lift his stay on August 18 to allow same-sex marriage to go forward in California. It’s not the usual move of deferring to the appeals court on big questions, though it’s certainly within the bounds of his authority (and the Ninth Circuit has a week to get into the picture). The real question now as gay couples go to the altar is whether they’ll have enough time to change the hearts and minds of California voters before the next marriage referendum goes on to the ballot. Last time around, the timing didn’t work out so well for gay marriage proponents. The California Supreme Court gave it their blessing in May 2008; 16,000 couples were married by the November election; Prop 8 still passed and banned others from following them. More from Kenji Yoshino explaining this .
There’s reason to think, though, that this second round could be the charm. Prop 8 passed by a 52 percent to 48 percent margin. Some polls show that the vote might come out differently today because a bare majority of Californians now support gay marriage. In the slightly longer term, this outcome isn’t really in doubt: Poll- and court-watcher and law professor Nate Persily assured me earlier this week that there will be a national majority in favor of gay marriage within five years, and California in all likelihood will be ahead of that curve.
Of course, the fate of Judge Walker’s rulings also probably lies in the hands of the Ninth Circuit. But whatever the appellate judges say, the voters are the audience who matter most, as gay rights advocates keep pointing out. Victory at the polls and in the legislature is the best route democracies offer for making big change. As Kenji wrote in the NYT last week, about the arguments in favor of Prop 8: “Until we directly address them in the public sphere, we will not have truly won the culture war for marriage equality.”
Photograph courtesy of Justin Sullivan/Getty Images News.