On being pro-gay but anti-marriage in California

One of the most interesting things about the Marriage Cases arguments before the California Supreme Court was the disarray of the opposition to marriage equality. In an unusual step, the Attorney General and the Governor were represented separately before the court, both making largely the same arguments but apparently differing on the level of constitutional scrutiny that sexual orientation discrimination should receive. More significantly, the state's attorney's disavowed any reliance on arguments about procreation and parenting that were at the heart of the defense of marriage bans in other states. In California, conservative organizations stood alone in presenting these arguments.

Douglas NeJaime has a very interesting Jurist column this week on the significance of this split in opposition to marriage, and what it means for the broader LGBT rights movement:

[T]o fully understand the state’s position, we must look to a shift in mainstream thought characterized by an increasingly institutionalized pro-gay perspective that hews to a gay centrist paradigm of coupling, parenting, and general respectability. What were once considered controversial, left/progressive positions, and what still constitute the dreaded “homosexual agenda” in social conservative circles, are now mainstream ideas held by those at the highest level of state government. And yet these same state decision-makers are charged with defending the state’s marriage restriction, itself a remnant of ideas that have been displaced by these new pro-gay principles. It is a difficult balancing act that the state’s advocates now attempt. Indeed, Mr. Krueger’s seeming discomfort at the podium as he defended the state’s marriage restriction perhaps best typifies the uneasy ground on which the state now stands. The fact that the Governor was represented by a separate attorney before the court, rather than Mr. Krueger, only underscores the fine lines being drawn within the state.

In this light, it will be interesting to see how the Governor responds to the forthcoming decision. He has said the issue is "for the courts or the people" to decide. If the court orders marriage equality, will the Governor endorse, oppose, or stay neutral on a referendum to overturn it? If the court upholds the marriage ban, will the Governor have lost his main reason for vetoing a marriage equality bill, or will he maintain that the matter can only be resolved by popular vote?