Remember in AZ it’s a “new” proposition, one that doesn’t ban civil unions.

But the CA amendment is the more benign, more likely to pass variety. If it doesn’t come awfully close to passing, the Doug Manchesters of the world aren’t going to want to fund another run.

And California is a peculiar state. As the lawyer for Protect Marriage said, attacking gay rights is a method that is “unlikely to succeed in California”. Once the voters choose not to “protect the definition of marriage”, there are simply no winning arguments left.

And with each passing year support for marriage increases. They may have already waited too late. There are no statewide elected officials backing this proposition, including the two Republicans: Governor and Insurance Commissioner.

I really believe that if Prop 8 fails, marriage equality is here to stay for the forseeable future.

But, of course, this is all speculation. I think our best bet is to band together and fight like wildcats to see it defeated.

They are not going to let this go away.

I’m worried less than you are about the way the Court would rule on the question, although I agree that there’s always a chance that we would lose.

My own legal analysis of the case presented in the briefs is that, from a constitutional law perspective, it is very compelling. (I can provide more detail about this upon request.) Above and beyond that, the case asks the 4-vote majority, “Did you mean what you said in the Marriage Cases?” My guess is that the answer will be “yes”–an opposite result would totally confound the legal principles laid down in the decision itself. But I concede that the possibility of a loss always exists, and that none of us can make a meaningful prediction as to the potential outcome.

My greater concern–with which you seem to disagree–is that the proponents won’t give up. I would hate to appear as though I am accusing you of underestimating the resolve of persons opposed to our civil rights, but I’m absolutely convinced that their ability to fundraise–combined with their ardent desire to harm our families–will keep them coming back.

Even so, I am deeply appreciative of your positive take on the matter, and I hope against hope that you are right.

Here in D.C., with a sufficient amount of time and money, it’s fairly easy to get something done that nobody actually wants or needs (see, e.g., the repeal of the estate tax, which currently impacts less than 1% of the U.S. population). Perhaps this reality has given me a somewhat cynical view of political processes.

My fear, then, is that the lobbying principles that work so well in D.C. will be deployed to create a perpetual campaign against same-sex marriage in California. And I sincerely hope that I am wrong about that.

If Prop 8 fails, it isn’t likely to come back. Or, at least not in repetitive cycles.

If it wins, however, there is no guarantee that one of the four votes will not agree with the argument made and will instead – as was Judge Corrigan – be subject to the “will of the people” thinking.

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One thing everyone should remember is that this order was unanimous (i.e., 7-0), but the Marriage Cases and Denial of Stay were decided 4-3.

This points to a policy decision by the Court to follow its longstanding preference for hearing challenges to ballot initiatives only after they have been approved by the voters.

From our perspective, of course, waiting until the initiative passes isn’t necessarily a good thing, because the initiative can keep coming back every election cycle (including off cycles, like primaries) at phenomenal expense to all involved. To me, then, the notion of a FAILED ballot measure is far worse than the notion that it would pass.

Why is that? Because the Court will almost certainly step in after the election cycle to defend its ruling in the Marriage Cases. The gravamen of the complaint–that a simple majority vote to deny fundamental rights (like the right to marry) based on a specific classification (like sexual orientation) flies in the face of everything the California Constitution stands for (equal application of the laws to all citizens), and therefore the state must follow the more stringent revision process to work such a foundational change to the Constitution–is extraordinarily compelling in light of the strong language of the Marriage Cases opinion. (And the statutory claim that the petition was misleading to the signatories is not insubstantial, either.)

IMO, if the measure PASSES in November, it’s likely to be overturned as a revision, which will set back the haters for decades. If the measure FAILS in November, all the haters will need to do is to keep their eyes on the prize, and spend enough money and time to bring it back every election cycle until it passes. While the Court would likely take up review of the measure at that time, it would have waited far longer than is necessary to make the pronouncement that the measure is a revision–a pronouncement that it could–and should–make NOW.

Very disappointing and economically inefficient, but the weight of precedent seems to be that the Court will only take up the question if–and only if–the measure ever passes.

C’est la vie. We have our work cut out for us.

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I also wonder, if as a few people have suggested, the court simply refuses to hear this argument now and instead intends to wait and see if the vote actually passes … what happens during the lawsuit? Will the effect of the initiative be stayed until the lawsuit is settled (i.e. same-sex marriages continue)? Or will same-sex marriages be stopped and same-sex marriage certificates invalidated … and then what, if the lawsuit is successful? Will all those marriages ‘turn on’ again?

I hope the right-wing forces are proud of all the pain, confusion, and uncertainty they cause. And that’s real-world pain and uncertainty, not that silly “preserve marriage” nonsense.

If the initiative passes, the court can and most likely will agree to hear the case then.

Is it common practice for the court to remove initiatives from the ballot before an election? or do they usually wait to see what the voters decide before wading in?