However the Supreme Court decides on California's Proposition 8 and the federal Defense of Marriage Act (DOMA) next June, gay marriage in the United States is here to stay and eventually will be legally enshrined and socially accepted.
"Accepted" meaning "nobody will care," which is as it should be, since nobody's marriage is anybody else's business. One day, society will care as little about gay marriage as it does interracial unions. Sure, some people today still consider mixed-race marriages an abomination, just as some in the future will proclaim gay marriage an abomination, but society will ultimately dispatch them all to the ash heap of history.
That's the direction the nation is moving in, has moved in and will continue to move toward, even if the high court decides to uphold Prop. 8.
The court will hear that case on two grounds:
1) Whether it violates the 14th Amendment's equal protection clause.
2) Whether those defending it in court had the legal standing to do so.
Regarding the first, the 9th U.S. Circuit Court of Appeals ruled that because gays already had the right to marry prior to Prop. 8, taking away that right without a rational basis violated the equal protection clause. Prop. 8's defenders couldn't provide that rational basis, even when directly asked to do so. That alone would lift the state's ban on gay marriage.
Issue two is important primarily because it gives the justices an out. They could sidestep the constitutional argument simply by saying that since the state refused to defend Prop. 8 both attorneys general, Jerry Brown then and Kamala Harris now, declined to do so the ballot measure's proponents don't have the right to pursue the case. That would be grounds enough to unilaterally overturn the statute, thereby legalizing gay marriage in California.
Regardless, the court's decision will have consequences only for California, affecting no other jurisdiction where gay marriage is legal. Larger repercussions are possible possibly legalizing same-sex unions in other states but not if the court rules narrowly on what is already a very narrow ruling, the 9th Circuit opinion. The Supreme Court often rules narrowly, especially on divisive matters.
If the high court reverses the appellate ruling, Prop. 8 will remain California law. An initiative to overturn it by popular vote will almost certainly appear on the ballot in 2014, and gay marriage foes will almost certainly lose because they are fighting both time and history.
When Dianne Feinstein was mayor of San Francisco, she vetoed a domestic partnership bill that would have allowed benefits to live-in lovers of city workers. Today, Feinstein marries gay couples, a power granted U.S. senators. Bill Clinton, who signed DOMA into law, now supports gay marriage. President Barack Obama, who once opposed gay marriage, now supports it, too.
While polling data increasingly favor gay marriage, the pattern of such surveys is far more compelling. Pew Research Center figures show gay marriage support shifting from 35 percent in 2001 to 48 percent in 2012, with opposition falling from 57 percent to 43 percent.
That parallels California's own trajectory. Proposition 22, the state's first gay marriage ban, passed in 2000 by 62 percent to 38 percent. Prop. 8's passage in 2008 was 52 percent to 48 percent.
Since then, eight more states and the District of Columbia have joined Massachusetts to legalize gay marriage three by popular vote in November, thus eliminating the "will of the people" argument often tendered by opponents. Did opponents in 2000 ever envision three states even putting gay marriage measures on the ballot, let alone imagine their passage?
A new Politico poll revealed something far more telling than overwhelming support for gay marriage: 63 percent of 18-to-29-year-olds back gay marriage, and of the 1,000 survey participants, one-fifth said they had changed their views on the issue in just the last few years.
This is the future. It's coming, "whether you like it or not," as Gavin Newsom gloated in 2004, when as mayor of San Francisco he allowed gay marriages at City Hall for a month before a court injunction stopped him. The question is when politics and courts will catch up.
"Quite literally, the opposition to gay marriage is dying," conservative commentator George Will observed Sunday on ABC's "This Week." Continued opposition will only further affirm the perceptions of homophobia, xenophobia and misogyny that cost Republicans dearly in the November election.
I've often thought the biggest reason people resented Newsom's gleeful prediction wasn't because they thought he was wrong, but because they feared he was right.
The long arc of history follows that reason eventually triumphs over fear, and that freedom and individual liberties expand, not contract. Often, that road is filled with missteps slavery, Prohibition and segregation, for instance but we learn as we go. History generally is unkind to extremists and suppressors and as we see in our own time, slowly but surely, layers of resistance are peeling away.
The arc of history may be getting shorter.