Hastings College of the Law professor Vikram Amar believes there is "no clear indication" that state courts across the country will force their states to recognize out-of-state same-sex unions. He opposes an amendment while Americans are "feeling their way" through the issue.
I'm against the amendment, too, but there is a strong indication that the courts will rule against states' rights. Two San Francisco judges, fully aware of state law, decided they didn't have to uphold laws that limit marriage to a man and a woman -- in deference to Mayor Newsom's belief that those laws violate the state's equal protection clause. Judges James Warren and Ronald Quidachay could have stopped illegal same-sex weddings until hearings are held on the matter next month, but they didn't feel they had to.
Let me explain what angers me the most about Newsom's nuptials and state courts' failure to immediately uphold the law: I voted against Proposition 22, which prohibited same-sex marriage in California and was passed by 61 percent of voters in 2000. Still, I believed it was only a matter of time before voters accepted same-sex marriage. A voter mandate would be the best way to win the issue because it would produce less resentment in the years that followed.
As Turley observed, American courts were ruling for gay rights as they saw societal acceptance grow. "The irony is that the gay-rights movement was at the very edge of success," said Turley. "And it now stands to lose much advantage." If a marriage amendment passes, it could set back gay rights for decades.
San Francisco's Winter of Love sends two messages to America. The good message is that many same-sex couples want to spend the rest of their lives together. The bad message is that if pro-gay politicians have power, they will use it to break the law, and the establishment -- the courts and the attorney general -- will aid and abet them.
Until now, Bush had resisted pressure to endorse a marriage amendment, even as Vermont and Massachusetts legalized same-sex unions. Only when San Francisco broke the law, and the courts let the city do it, did Bush endorse a constitutional amendment. Said Turley: "This controversy in San Francisco could not have been better planned by the opponents of gay rights."