Gay marriage: Did California move too quickly?

What a “bold surprise” this was, said Maura Dolan in the Los Angeles Times. Few had expected that California’s “moderately conservative, Republican-dominated” Supreme Court would overturn the state’s ban on gay marriage. Yet that’s just what the high court did last week, making California the second state in the nation, after Massachusetts, to legalize same-sex unions. The 4–3 majority acknowledged that the state’s domestic partnership law gives homosexual and lesbian couples virtually all the legal benefits of traditional marriage. But the court ruled that because the partnership law was a separate arrangement for gays, it was inherently unequal. The “basic civil right” of marriage, wrote Chief Justice Ronald George, applies to everyone. Among California’s 110,000 gay couples, there was widespread rejoicing. “I will be able to marry John, the man that I love,” said plaintiff Stuart Gaffney. “Today is the happiest and most romantic day of our lives.”

But for those who believe in democracy, said William Duncan in National Review Online, it’s a dark day indeed. Just eight years ago, 61 percent of the state’s voters ratified Proposition 22, which held that “only marriage between a man and a woman is valid or recognized in California.” Now, in a classic case of “judicial overreaching,” unelected judges are again legislating morality from the bench and thwarting the people’s will. Society has “a survival stake��� in traditional marriage, said Jeff Jacoby in The Boston Globe. Only the union of a man and a woman “can produce new life.” That’s why 22 states have amended their constitutions to ban gay marriage. It’s also why more than a million Californians have already responded to the court’s ruling by signing a ballot initiative to limit marriage to heterosexual couples. Come November, voters will almost certainly “override the court’s presumptuous diktat.”

You don’t have to be a social conservative to see that this decision is needlessly “inflammatory,” said Jeffrey Rosen in The New Republic Online. California’s domestic partnership law already confers all the rights of marriage, withholding only the term “marriage” itself. Slowly but surely, the state was evolving toward a social consensus “concerning the value and honor of same-sex relationships.” But for the court, incrementalism equals bigotry, and so it ordered a revolution.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Actually, the revolution had already occurred, said Andrew Sullivan in TheAtlantic.com. In recent years, society has undergone “a deep shift in consciousness” about homosexuality. Same-sex orientation used to be considered a “defective” and “inferior” choice by confused people who needed curing or shunning. Now most Americans—especially those under the age of 30—understand that some people are simply born with an attraction to the same sex, and that there’s nothing defective or immoral about it. In acknowledging that gay people and straight people are “interchangeable” and equal in every way, the court was simply recognizing our new social reality.

Much as I believe in equality for gays, said E.J. Dionne in The Washington Post, I fear that the California court has done more harm than good. When certain rights are “established or ratified” by legislatures and majority vote, the public generally goes along. But when they’re imposed by judicial fiat, as in Roe v. Wade, there’s usually a popular backlash, and it’s almost certain to happen again. That’s particularly unfortunate, said Steve Chapman in the Chicago Tribune, in light of how much progress the gay-marriage movement has made in America in so little time. We’re obviously on the way to “full equality for gays,” including the right to marry. “I just wish the court weren’t in such a hurry to get there.”