It is by no means certain that the gay marriage ban will be on the ballot in November. Pro-gay political forces, now including the California Governor, who had previously vetoed legislative legalization of gay marriage, might well be able to keep it off the ballot by challenging signatures or taking other legal actions.
Assuming it is on the ballot, it is by no means certain that it will pass. My recollection is that Arizona finally broke a long streak of passed referenda in this area, and it seems to me that a huge turnout in support of Barack Obama may well overwhelm whatever the forces opposed to gay marriage can muster.
The old saying that first they ignore you, and then they ridicule you, and then they fight you, and then you win, may well apply here.
I remember as a part-time law student in the early 1990s being impressed by the vast outpouring of law journal articles promoting expansions of gay rights, but not being certain as a full-time state legislator that there was going to be political and legal significance to this.
Others were even more skeptical than I was. Dan Foley wound up as the key lawyer in the seminal Hawaii case of Baehr v. Lewin--which actually won a Hawaii Supreme Court victory in 1993 quickly overturned by the actions of a hostile legislature--because he had done some real estate work for a relative of one of the plaintiffs.
The plaintiffs had struck out repeatedly in their efforts to get gay organizations to take their desire to marry on as a cause, and could not get an experienced gay rights litigator to take their case because of a widespread sense that it was totally unwinnable. (Note to Daily Kos law students: never underestimate the potential importance of law journal articles as persuasive authority to judges amenable to dramatic change.)
The plaintiff's relative told the frustrated plaintiffs of her experiences with Foley's diligence, and so he came out of nowhere in the constitutional law field to begin the process of changing the laws of our land.
The California Supreme Court attempts in its decision to strike a common-sense tone about the issue. Advocates ought to read and study this case decision for its persuasive style as well as for its content.
I am hardly an expert on California politics. To the best of my recollection, I have made only two trips to California in my life. But it is clear to me that the world is changing rapidly, and the common sense tone of the California Supreme Court may well foreshadow a new common sense tone of the California electorate.
One thing just about everybody has experience with is sexual desire. The overwhelming majority of all straight people have absolutely no sexual desire for people of the same sex. No matter how many times people are told that gay marriage threatens heterosexual marriage, more and more people are going to be getting the confidence to look inside themselves and their own sex drives and experiences and realize that this just is not true.
Ultimately, in politics and in life generally, reality counts a lot more than spin. My strong guess is that with the strong support of much of the California political establishment of both parties, Californians are going to cast a pro-reality, pro-21st Century vote in support of the right of gays to marry if they get the opportunity to do so.