A Useful Nudge in California

By Harold Meyerson
Wednesday, May 21, 2008

The California Supreme Court's decision striking down the law prohibiting the contentious marriages was emphatic. In a concurring opinion, Justice Jesse Carter wrote, "The statutes here involved are the product of ignorance, prejudice and intolerance. This decision is in harmony with the principles of the Declaration of Independence which are guaranteed by the Bill of Rights and the Fourteenth Amendment . . . that all human beings have equal rights . . . and that the right to liberty and the pursuit of happiness is inalienable."

Thus spake the court in Perez v. California, the 1948 case in which California became the first state to declare unconstitutional the prohibition of interracial marriages. For fully a decade thereafter, California stood alone in deeming such laws unconstitutional. In time, other state courts followed, and, in 1967, so did the U.S. Supreme Court in the memorable, and memorably named, Loving v. Virginia.

Last week, when the California high court struck down as unconstitutional that state's ban on gay and lesbian marriages, it based its decision on established state law -- the Perez decision of six decades ago. Chief Justice Ronald George -- a moderate Republican on a Republican-dominated court -- quoted Justice Roger Traynor's ringing declaration in Perez that "the essence of the right to marry is freedom to join in marriage with the person of one's choice." As once the court had ruled that race was not a legitimate basis to deny a person's legal rights, neither, reasoned George, was an individual's sexual orientation.

The ruling has sparked inevitable debate over the proper role of the courts in a democracy. Among those who question the court's decision, some see it as symptomatic of judicial activism that thwarts the will of the people and their elected representatives. Others, including some supporters of gay marriage, question the wisdom of the court intervening when public opinion is shifting toward support of gay marriage in any case. By that standard, isn't the court simply giving opponents of gay marriage an easier target to shoot at?

I'm not so sure it is. Throughout American history, the relation between court decisions, popular movements and legislation in matters of advancing human rights has been complicated -- and often complementary. Brown v. Board of Education advanced the fundamental case for equal rights in America and helped speed the formation of the civil rights movement, even as it provoked a culture of massive resistance in the segregationist white South and prodded conservatives to begin their war against the liberal Warren court.

Moreover, there's a clear constitutional logic for courts intervening early on in such struggles. In our system, legislatures enact the majority's will and courts protect the minority's rights. At times, by forcefully upholding minority rights, the courts can affect the majority's will. Working in different parts of our constitutional arena, Thurgood Marshall, Earl Warren, Martin Luther King Jr. and Lyndon Johnson played leading and mutually reinforcing roles in the civil rights revolution of the mid-20th century. Their efforts helped produce, and in turn were pushed along by, the changing consciousness on race in the 1950s and '60s.

A similar dynamic, I think, is at work today on issues of sexual orientation. Public opinion on gay and lesbian rights, domestic partnerships, and marriage is changing faster than it is on any other remotely comparable public issue. In 2000, 61 percent of California voters approved an initiative banning gay marriage, but polling last year showed that the gap between the numbers of supporters and opponents of the prohibition had virtually vanished. A constitutional ban on gay marriage will be on California's ballot in November. The odds on its passage, I'd guess, are no better than even money.

This shift is being driven by the young: Overwhelmingly, young people favor gay unions and, increasingly, gay marriage. Opposition rises in direct relation to the age of the poll respondents. In 20 or 30 years, I suspect gay marriage will be legal -- and no big deal -- throughout most, if not all, of the nation.

So was last week's ruling an impetus or impediment to that process? My hunch is that by basing the case for the right to intra-gender marriage so clearly and forcefully on the doctrine of equal rights, the court situated gay marriage not only in an established body of law but also within the essential definition of America. Opposition to gay marriage is most commonly rooted in tradition, religious tradition in particular. But the ideas that all men are created equal and have an inalienable right to the pursuit of happiness are the traditions that define our nation, and by basing its decision on those premises the court did gay rights, and American ideals, a huge service.


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