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By a one-vote majority, the California Supreme Court has struck down the state’s marriage law, to take effect in 30 days. Read on for some analysis and what’s likely to happen in the effort to overturn it this November…

The case is now sure to be a defining issue of the presidential campaign, some believe it won’t have nearly the same impact as Massachusetts’ similar decision four years ago - the home state of 2004 Democratic nominee John Kerry. This year, the state isn’t Obama’s home turf, four years have seen a big change in attitudes on the issue, and the Republican in the race, Sen McCain, has consistently over the years has opposed Republican efforts to pass a federal ban on “gay marriage”, saying he’d prefer to leave it to the states. Though he has made a bags of trying to explain his position beyond that - contradicting himself during the same event, for example - the daylight between McCain and the cavedwellers within the party made him seem the sort of moderate that might survive the political asteroid impact that this November is going to wipe out so much of the party I used to belong to.

Obama, within 129 delegates of clinching the Democratic nomination, has supported “civil unions” but opposed “gay marriage”. And he wants to repeal the Defence of Marriage Act. Removing DOMA would ensure that all US states would be compelled to recognised the validity of a same-sex marriage performed in Massachusetts or, for at least until November, California - the “full faith and credit” clause of the US Constitution would be restored.

Based on that you’d think McCain and Obama were basically in the same place on this issue. We’ll see what the coverage looks like tomorrow, but so far it looks like the Republicans believe the California Supreme Court has thrown them a lifeline. McCain will be able to approve as “judicial activism” is attacked, while not being asked to disavow his support for civil unions. Obama, on the other hand, will be under some pressure to weigh in - the “it’s a state matter” view may not be enough in a debate. [UPDATE: Statements from Obama and McCain blogged here (along with one from somebody called Hillary), and their (for now) mutedness analysed here: "Because Obama is not where the far left wants him to be (marriage) and McCain not where the far right wants him to be (a federal ban), this is not something either will probably make front and center". We'll see, once the 527s get done with them.]

Hopefully the campaign noise won’t obscure the issues involved in the case itself, however. The opinion makes for interesting reading, and lays out the very narrow question the court was asked to consider. It started in 2004, when the same California Supremes issued a stay order after more than 4,000 marriage licenses were granted to same-sex couples in San Francisco. At the time the Court made clear it was ONLY considering whether the marriage licenses were legal under the existing marriage laws, not whether the laws themselves were constitutional.

This case combined six different cases challenging those laws, all filed after the 2004 stay. In oral arguments in March, the court made clear what it believed the case came down to - “the m-word”. California has the most robust domestic partnership laws in the US. Gay couples with domestic partnership agreements have “virtually all” the same rights and (crucially) the same obligations as “married” couples. The question was whether or not the State has the right to withhold the nomenclature of “marriage” - the word itself.

My own views on this, in my last Sunday Tribune column (not a week I’m likely to forget soon), were an attempt (a poor one) to wrestle with exactly the same question. What’s the state’s role here? In this case, is it the perogative of a court to overturn the express wishes of an electorate? Life, liberty or property are not being denied. Justice Corrigan’s dissent argues that the domestic partnership arrangements, which California’s legislature worked for months to give them legal parity with marriage, gave gay couples equal protection:

Domestic partnerships and marriages have the same legal standing, granting to both heterosexual and homosexual couples a societal recognition of
their lifelong commitment. This parity does not violate the Constitution, it is in keeping with it. Requiring the same substantive legal rights is, in my view, a matter of equal protection. But this does not mean the traditional definition of marriage is unconstitutional. (p156)

Corrigan goes on to make the point that the majority erred when it made comparisons to striking down laws against race-based denial of access to education or the right to vote, even striking down a ban on interracial marriage. These were of course both good and necessary. But there’s a difference here:

The distinction between substance and nomenclature makes this case different from other civil rights cases. The definition of the rights to education, to vote, to pursue an office or occupation, and the other celebrated civil rights vindicated by the courts, were not altered by extending them to all races and both genders. The institution of marriage was not fundamentally changed by removing the racial restrictions that formerly encumbered it. Plaintiffs, however, seek to change the definition of the marital relationship, as it has consistently been understood, into something quite new.

I think the reaction to this is going to be massive, worldwide and long-lasting. It will certainly get some traction in Ireland. This may be a good thing, because it may illuminate three separate parts of the debate:
a) that the issue is one of changing the definition of the word “marriage”; the innovators have a much heavier burden of proof,
b) what is the best way to achieve a change in that definition - a democratic process or a judicial one - which is more likely to secure durable and just process
and c) the proper role of the state itself in regulating family life.

Suzy Byrne, one of our most thoughtful commentators on this, is the person whose reaction here I’m waiting to see. (As it was she had expressed some worries about the new Justice Minister, Dermot Ahern.)

Andrew Sullivan, unsurprisingly, does a superb job with reactions - particularly in conveying the real-life stories of people for whom this isn’t an abstraction. But it seems almost certain that there will be a constitutional amendment by referendum on the California ballot this November, to overturn the Court’s decision. I don’t think it puts California in play for McCain, but it does make very narrow the space to maneuver on the issue for Obama, who - one assumes from his overall ideology and statements - would want to see California get to the same legal position, but in a way that doesn’t so energise the anti-gay-rights side that it takes something that polling data and actuarial change says might have been achievable democratically in a decade and puts it out of reach for a generation - assuming the decision is struck down in November at the ballot.

One very positive sign for gay-rights-campaigners: Gov Arnold Schwarzenegger backs the ruling, and will campaign against the ballot intitiative to replace it.

I hope there is a vote. I hope it fails to overturn the ruling. The word ‘marriage’ and its etymological definition wasn’t put on stone tablets Yahweh gave to Moses. I wish that the Court had deferred to the democratic process, but the people of California can ratify their decision with a ‘no’ vote.

Personally I still think that the word “marriage” should disappear from the statute books altogether, whether applied to hetero or same-sex couples. Let churches or other private institutions confer the distinction “marriage” and sanctify a relationship. The State simply shouldn’t be in the business of bestowing or withholding dignity rooted in the symbolic and cultural power of a word. Let the relationships be considered equal before the law, in name as well as subtance. But you can’t simply wish away the fact that changing the definition of the m-word is an innovation that society, not the State, is competent to make, much less four justices of the California Supreme Court.