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The Bitter End

A Commentary By Susan Estrich

For many California voters, especially those who supported Barack Obama's presidential bid, election night had a bright beginning and a bitter end. The state overwhelmingly supported the next president. There was no "Bradley effect," as it had come to be known in the place where it was born: former Los Angeles Mayor Tom Bradley's failure to win the governorship, when he was ahead in the polls going in -- and even coming out. No longer does the proposition stand that polls cannot be trusted to predict victory when the candidate is black. Goodbye, Bradley effect. Hello, President Obama.

The election was officially called the moment the polls closed in California. And then the real waiting game began.

Proponents of Proposition 8, the ban on gay marriage, had waged a shrewd, well-funded and deceptive campaign to overturn the recent state Supreme Court decision barring discrimination against gay couples seeking marriage licenses from local officials. To the obvious question of why those of us who aren't gay should care if others who are have the right to go to City Hall and get a marriage license, their answer was deceptively simple: No, this wasn't just about whether public officials could deny marriage licenses based on sexual orientation. It was about kids being indoctrinated in public schools to support gay marriage, and about churches being forced to perform them at the risk of facing state sanctions.

These arguments were wrong. Nothing in the Supreme Court decision, or in Prop 8 for that matter, addresses what children are taught in school. The Supreme Court never held, nor could it, that churches or synagogues are required to perform religious ceremonies marrying gay couples. To do so would violate the protection of free exercise of religion and the separation of church and state, enshrined in both the federal and state Constitutions.

As the night wore on, it became clear what the result would be. The ban passed. While opposition leaders refused to concede, the initiative has been declared victorious, and lawsuits challenging Prop 8 have already been filed.

No one knows for sure whether the proposition will be held to invalidate the thousands of marriages that have already taken place. Wearing my law professor's hat, I'm willing to wager that it will not.

Even if Prop 8 is held to have effectively amended the Constitution (see below), there is no basis for holding that it did so retroactively. The decision of the California Supreme Court was the law of the state until it was overturned, and actions taken consistent with that decision were lawful acts. But that creates the ironic, and painful, reality that we will be a state with gay marriage, but only for the swift-footed.

The second major legal question is whether there is any chance of invalidating Prop 8 in the courts. Opponents have filed a lawsuit in the California Supreme Court arguing that the proposition should be thrown out because it constitutes a "revision" of the Constitution rather than an "amendment." Under the California Constitution, voters may enact "amendments" by majority vote in support of an initiative. A revision, on the other hand, which alters the "underlying principles" of the Constitution or changes the "basic plan" of government, can only be enacted through the more demanding process of legislative approval followed by ratification either by the voters or a Constitutional Convention.

Thus, an initiative that sought to strip judges in the state of the right to provide criminal defendants with greater procedural protections than those provided by federal courts was thrown out as a revision, not an amendment. Does stripping one group of the fundamental rights of equal protection amount to a revision? Depends on whom you ask. Even with my law professor's hat, I wouldn't hazard a guess on how that one will come out.

And then there is the certainty that sooner or later a federal judge somewhere will decide that such bans violate federal equal protection guarantees, and the issue will begin the slow but certain march to the United States Supreme Court. How it will fare will depend on who is in the room when it gets there.

Perhaps the hardest question, at least in the short run, is how a state that so overwhelmingly supported Obama for president, that on the same ballot supported more spacious quarters for chickens and abortion rights for teenagers, could vote for an initiative that is a cruel slap in the face to our gay friends and relatives. In the 21st century, we look beyond race but get stuck at sexual orientation.

Prop 8 was divisive and mean-spirited. The campaign in favor of it was based on transparent lies. And its success, even on the day of Barack Obama's historic victory, makes clear that the battle for equality is far from over.


See Other Political Commentaries

See Other Commentaries by Susan Estrich

Views expressed in this column are those of the author, not those of Rasmussen Reports.

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