If the U.S. Supreme Court upholds Proposition 8, California's ban on same-sex marriage, in a decision that could come Thursday, the next move to overturn the ban could be made in the Legislature almost immediately.
On Wednesday, state Senate President Pro Tem Darrell Steinberg said the Senate is crafting language for an amendment to the state Constitution that would overturn Prop. 8 and that such a move would come "sooner rather than later" if the Supreme Court upholds the ban.
Lawmakers can place constitutional amendments on the ballot with a two-thirds vote, and when Democrats first won two-thirds of the seats in the Legislature in November, Steinberg said he was open to using that power to place a repeal on the ballot if the court does not strike down Prop. 8.
"We hope the subject will be moot, but we will be prepared to take action to uphold the civil rights of Californians," Steinberg said. "Civil rights shouldn't wait."
But there could be a delay.
Democrats will lose their two-thirds majority in the Assembly on July 1 when Assemblyman Bob Blumenfield, D-Woodland Hills (Los Angeles County) leaves for a seat on the Los Angeles City Council. And while a special election will eventually fill the seat, which is safely in Democrats' hands, the musical chairs could continue for several months before the Assembly regains a supermajority of Democrats.
Without the Democratic supermajority, lawmakers would need the vote of at least one Republican to get a repeal on the ballot.
Some are cautious
And not all lawmakers are ready to act right away. Some say they want to make sure that legislative action would be the best move. They say they would want to wait and see whether same-sex marriage proponents would rather pursue a signature-gathering drive to place the issue on the ballot.
Assemblyman Richard Gordon, D-Menlo Park, the chairman of the California Legislative Lesbian, Gay, Bisexual and Transgender Caucus, said there have been some early discussions but that he is in a "wait and see" mode.
"I think if the court were to uphold Prop. 8, we'd probably take a month or so and assess what does that mean? What's the public's reaction and response?" Gordon said. "I don't think you're going to see any member of the LGBT Caucus standing up in the immediate days following a negative decision and say, 'Here we go.' "
If the Legislature does act to place an amendment on the ballot, it would save proponents millions of dollars in costs of running a signature-gathering drive -- and lots of time. But that signature-gathering effort can also be an organizing tool for a campaign to find volunteers and people who may donate money to the effort.
"Both options are real and would be on the table for discussion," said John O'Connor, executive director of Equality California, a LGBT rights organization that was a major part of the effort to defeat Prop. 8 in 2008.
"Collecting signatures and putting the issue back on the ballot is expensive, but also the emotional response of anger, hurt and outrage will be enormous, and people will be hungry to get out and do something," said O'Connor, who began leading the organization in December.
The campaign to defeat Prop. 8 raised $44 million, while the winning effort to pass the same-sex marriage ban raised $39 million, making it the one of the costliest initiative campaigns in California history.
If the court upholds the ban, O'Connor said, there is "no question" the issue will be in front of voters in November 2014, whether via the Legislature or a signature-gathering effort.
Sen. Mark Leno, D-San Francisco, said lawmakers would be working "in concert with a nationwide alliance of varieties of civil rights organizations" on how to proceed.
"If necessary, we are prepared," he said.
Backers of Prop. 8 said that any effort to repeal the ban should start with signature gathering, because that is how they put the measure on the ballot.
"The petition process has twice been used to address the marriage issue, and it would seem most appropriate that any changes to a voter-passed amendment like Prop. 8 should come by way of a petition drive as well," said Andrew Pugno, who wrote Prop. 8 and is part of the legal team that defended it in front of the Supreme Court.
He said it would be "a waste of time and money" to take up the issue again and that if the court upholds Prop. 8, it "would recognize the balance that California has struck between protecting traditional marriage and providing equal benefits through domestic partnerships."
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