Meddling in Gay Marriage

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Tuesday, May 20, 2008

BESTOWING THE full rights and obligations of marriage on all loving, committed relationships -- whether heterosexual or homosexual -- is a matter of social and political justice. There should be no room in this country for the kind of discrimination that would relegate same-sex couples to second-class status. The California Supreme Court, which last week struck down that state's prohibition against same-sex marriage, correctly recognized that government bears the highest burden if it decides to treat differently the relationships between opposite-sex and same-sex couples.

Yet the flawed court decision could trigger serious political backlash because the outcome was produced not by the state's voters but by a 4 to 3 majority of judges.

There have been times in this country's history when judicial action was necessary to overcome entrenched injustice. The U.S. Supreme Court acted properly and well within judicial bounds when it ruled that the policy of "separate but equal" educational facilities for white and black students offended the Constitution. By 1954, when the court decided Brown v. Board of Education, it was abundantly clear that the separate-but-equal approach was an abysmal failure that produced nothing remotely approximating equal facilities, resources or opportunities for black students. The court was justified in striking down the policy as a clear violation of the 14th Amendment, which was, after all, enacted after the Civil War to prevent exactly this type of substantive discrimination.

This is a far cry from the California experience with the rights of same-sex couples. The state's elected representatives passed sweeping legislation in 1999 that gave same-sex couples near legal parity with their opposite-sex counterparts; that landmark legislation has been amended over the years to expand the rights of gay couples. Before the court ruling, same-sex couples in California had virtually the same -- not separate, but the same -- legal rights as heterosexual couples, insofar as state law can grant that. The only thing they lacked was the right to be called "married." This, a slim majority of the California court ruled, was unacceptable, insinuating that the real, remarkable and well-deserved gains won by gay couples through the political process were entirely inadequate. They then engaged in an unnecessary bout of judicial micromanagement by redefining marriage through a novel reading of the state constitution.

Not surprisingly, those who oppose same-sex marriage in California are working to put a measure on the November ballot to override the decision. Depending on how it is worded, such a measure, if passed, could return California to the status quo that existed before the decision or go further and pare back the protections of the state's domestic partnership law. This latter outcome would represent a truly sad turn of events.


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