The fight over gay marriage is not over in California, or anywhere else in the U.S. Street protests dragged into the weekend in Los Angeles and other Golden State cities, and legal challenges are already asking the California Supreme Court to overturn the Nov. 4 statewide vote on Proposition 8 that made same-sex marriage in California not only illegal but unconstitutional. On Sunday, gay-marriage supporters got an unexpected boost from Republican governor Arnold Schwarzenegger. The term-limited governor had always opposed the amendment but had not campaigned against it or come out in support of gay marriage. "They should never give up," he said on CNN, referring to proponents of gay marriage. "They should be on it and on it until they get it done." He called the Election Day vote against same-sex marriage "unfortunate, obviously, but it's not the end. I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area." (See pictures from the historic Election Day.)
The legal challenge endorsed by the governor is a suit filed by the ACLU and other groups who allege that the referendum that won on Nov. 4 with nearly 53% of the vote is invalid. "It would constitute a constitutional revision, not a constitutional amendment and, as such, the California Constitution provides that it may not be enacted by initiative," reads the request for an immediate stay to stop Proposition 8 from becoming law. In plainer language, what the suit says is that because the gay-marriage ban so fundamentally alters the state constitution by taking away a fundamental right from some citizens, the change should be viewed as a revision instead of an amendment and the California Constitution requires that so-called revisions be passed by both houses of the legislature before being submitted to voters. (See the Top 10 ballot measures.)
The request is directed at the same court that in May issued one of the most sweeping declarations of fundamental gay rights in U.S. legal history, making same-sex marriage legal by a 4-3 vote. The Republican-dominated court could decide by the end of this week whether to rule on the request for a stay or send it to a lower court first. But whatever the merits of the legal challenge, the court will face enormous pressure as it deliberates.
"If the California Supreme Court were to issue a ruling that would invalidate the will of the people, the consequences for the court would be momentous," the Rev. Albert Mohler told TIME over the weekend. Mohler, president of the Southern Baptist Theological Seminary in Louisville, Ky., and one of the nation's leading Evangelical voices, called such a "usurpation" hard to fathom. Imagine, he said, how much more controversial Roe v. Wade would be now had the court issued the decision after more than half the states had held statewide elections on the issue. "Tuesday's rulings have made it much more costly for any court to reach a conclusion in favor of gay marriage," he said.
The results on Nov. 4 were negative for advocates of gay marriage outside California as well: citizens in Florida and Arizona also voted to make gay marriage unconstitutional. The vote was overwhelming in Florida, where voters favored Barack Obama in the presidential race but still decided 63% to 37% to make marriage available to heterosexual couples only. And in John McCain's home state of Arizona, voters reversed course just two years after defeating a similar, if more sweeping, ban on gay marriage.
California's vote was closer but not that close. Large numbers of those who voted Democratic chose to limit marriage to straight couples. They did so after a long campaign dominated by heavy spending from gay rights advocates. The vote was the first to come in a state where gay marriage had already been legalized. Some 18,000 couples wed before Election Day, and public-opinion polls had shown that support for the amendment trailed badly just days before the vote.
In a teleconference last week among more than 100 gay legal scholars and others who support gay marriage, the mood was dour. "This has cast a pall" over what had otherwise been a historic election on Nov. 4, said D'Arcy Kemnitz, executive director of the National Lesbian Gay Law Association. Longtime gay rights advocate Dean Trantalis of Fort Lauderdale, Fla., and others on the conference call expressed concern that the gay rights movement had become too focused on marriage, and is now paying the price in other more critical areas. "Marriage was never our issue," Trantalis said. "It was thrust upon us by the other side, and they've done a very good job of beating us up over it."