Despite a seemingly devastating ruling emanating from the California Supreme Court this week upholding the validity of Proposition 8- which amended the state constitution to forbid gay marriage- same-sex marriage advocates are left with a number of different options to carry their cause forward.

The first, and perhaps most obvious tactic, is to fire back at Prop 8 advocates with their own ammunition.  The Court has taken the position that the electorate is free to amend its constitution. And in fact, the constructionist view would likely support that conclusion.  If a constitution is a contract between the people and their government, the people are free to change that contract as they see fit.  And that remains true even if the electorate has only just decided on the issue very recently.

So option one, of course, is to organize, and get the issue back on the ballot.  Prop 8 opponents were foiled by a highly organized, well-funded, well-researched electoral campaign.  But where they may find some solace is in the political climate in 2010.  Barack Obama invigorated the minority voting blocs in 2008, but those same groups tend to be almost unilaterally opposed to gay marriage.  In an off-year midterm election in 2010, turnout will be exponentially lower, and Prop 8 opponents would likely reap the benefits.

The second tactic involves the federal courts.  There are 18,000 gay couples in California who may legally refer to themselves as "married."  A lawsuit that alleges a breach of the Equal Protection Clause under the US Constitution by pointing to the ability of all straight couples and some gay couples to obtain something others can not undoubtedly raises enough of a federal question to get the case into federal court.  Inevitably, the case would appeal all the way to the Supreme Court, and a win there would mean a victory for same-sex marriage nationwide.

The third tactic also involves the federal courts.  If one of the 18,000 gay couples who the Court decided should be allowed to remain married were to move to, say, Texas, they'd likely have any attempt to file joint taxes or apply for spouse's benefits denied under the laws of that state.  That would create an opening under the Full Faith and Credit Clause of the US Constitution, which requires states to respect the decisions of law made by other states.  In 2007, a federal appeals court ruled that a gay couple that adopted a child lawfully in one state could not be declassified by the laws of another state that bans homosexual adoption.

But in using the federal courts for resolution, gay-rights advocates face a serious risk of losing.  The Supreme Court remains strongly conservative.  ANd if the Court were to rule against them, it would essentially nullify any opportunity to institute gay marriage laws across the country.

Neither side is ready to give up, and the issue could become and annual tug-of-war at the ballot box.  But in the meantime, the California Supreme Court left the gay community with a number of different options. How they exercise those options will be the subject of intense research and debate over the next few years.

Sure, they'll continue to fight in court, but this was a considerable amount of time in the planning. Somebody (read: Mormon church) has a plan B in the offing.

The battle needs to be carried to THEM if we're to prevent this kind of maneuver in the future and in more states.

Go on the offensive. Take no prisoners, etc.

Let us suppose that in 2010, a proposition on the California ballot overruling Proposition 8 is passed. Marriage equality comes to California.

What happens to the petition being put for by David Boise and Ted Olson? Does it then become moot for lack of standing?

Just wondering ...

To get DOMA to the supremes will require two conflicting circuits. I don't see that happening soon.

Obama, Closer To The Dream

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