The New Republic

The California Supreme Court's expansive decision last week to
legalize gay marriage has presented its opponents with an
unfortunate opportunity. If the legal merits of the decision had
been clear, the court's boldness could have been justified as a
triumph of shining principle over pragmatic politics.
Unfortunately, the legal merits are extremely murky, giving
ammunition to those who are mobilizing to overturn the decision by
initiative this fall. In addition, the California decision may
trigger a backlash that hurts Democratic chances in November and
guarantees a conservative U.S. Supreme Court for decades to come.
For all of their noble intentions, therefore, the California
justices may have handed supporters of gay marriage a Pyrrhic
victory.It's easy to celebrate the majority opinion by Chief Justice Ronald
M. George, a Republican appointee, for standing up for simple
fairness and for anticipating the future. Given that young people
support gay marriage just as strongly as older ones oppose it,
there's little doubt that, in a few decades, gay marriage will be
legal throughout the United States--as well it should be. And it's
obvious that George and his colleagues saw themselves as brave
pioneers whose judgment would ultimately be vindicated by history:
The California justices repeatedly compared bans on gay marriage to
bans on interracial marriage and suggested that their decision, in
time, would be as celebrated as the California Supreme Court's
decision striking down anti- miscegenation laws in 1948.

But the analogy to interracial marriage bans is less than perfect.
The central question in the California case is whether it's
possible to create a separate-but-equal category of civil unions
for gays and lesbians without demeaning them. Some commentators,
such as Andrew Sullivan, have powerfully argued that, in the case
of marriage, separate is inherently unequal and demeaning. That's a
plausible argument, but not everyone agrees. Of the courts that
have considered this question, two (Vermont and New Jersey) have
held that civil unions can, in fact, be a separate but equal
alternative to marriage; only one (Massachusetts) has disagreed.
Moreover, Democratic presidential candidates from John Kerry to
Hillary Clinton and Barack Obama support civil unions but oppose
gay marriage. Judicial decisions that blithely pronounce the basic
positions of major political parties to be unconstitutional haven't
fared well in American history--as reaction to the Dred Scott and
Roe v. Wade decisions shows. (By contrast, when Brown came down in
1954, it was supported by more than half of the country and not
officially opposed by the Democratic Party or the GOP.)

Although you can argue the question either way, Chief Justice George
inadvertently undermined the heart of his own conclusion that civil
unions are inherently demeaning. He and his colleagues conceded
that California's marriage laws were not motivated by prejudice or
animus--unlike interracial marriage bans, whose supporters
explicitly said in 1948 that they were trying to maintain white
supremacy. "We do not suggest that the current marriage provisions
were enacted with an invidious intent or purpose," the California
justices declared. Indeed, when the California legislature expanded
domestic partnerships in 2003 to include all the legal benefits of
marriage, it said that its goal was to provide essential rights to
"all caring and committed couples, regardless of their gender or
sexual orientation" and to "reduce discrimination on the bases of
sex and sexual orientation." (The legislature later voted twice to
legalize gay marriage in bills vetoed by the governor.) Under most
constitutional analysis, the concession that California's decision
to create civil unions rather than gay marriage wasn't motivated by
prejudice should have ended the matter: Courts generally uphold
laws unless they're irrational, and, without evidence of hidden
animus, it's hard to conclude that a desire to maintain the
traditional definition of marriage is completely irrational.

To get around this analytical roadblock, the California Supreme
Court had to hold that discrimination on the basis of sexual
orientation should be treated as skeptically as racial
discrimination--an argument that the U.S. Supreme Court and other
state supreme courts have so far refused to accept. Social
conservatives are already questioning one of the premises of this
conclusion: that sexual orientation, like race, is immutable.
"There is no evidence to establish that a homosexual lifestyle is
an immutable characteristic such as race," a lawyer with the
socially conservative Advocates for Faith and Freedom told The New
York Times. The other tests for identifying constitutionally
"suspect classes"--that is, groups, such as racial minorities,
entitled to the highest level of constitutional protection--are
even more malleable. For example, how do you decide whether gays
and lesbians have adequate political influence without having some
idea of how much influence they're entitled to expect? Wasn't the
fact that the domestic partnership bill passed in California
evidence that gays and lesbians do have political power? For these
reasons, other courts have refrained from calling gays and lesbians
a suspect class, and, by opening this Pandora's box, the California
justices increased the possibility that their decision will be
overturned.

The California justices combatively declared that they didn't care
if their decision was unpopular or even repudiated: "The Court
should review individual rights questions, unabated by its judgment
about whether a particular result will be subject to criticism,
hostility, or disobedience." But Michael Klarman of Harvard Law
School, who is writing a book on constitutional backlashes against
judicial rulings, argues that the Massachusetts gay marriage
decision in 2003 may have cost John Kerry the last presidential
election by increasing social conservative turnout in swing states,
like Ohio, whose ballots included initiatives to ban gay marriage.
Those initiatives passed by overwhelming margins: Before the
Massachusetts decision, only four state constitutions defined
marriage as a union between a man and a woman; today, 26 state
constitutions have gay marriage bans. During the 2004 election,
Klarman concludes, opposition to same-sex marriage also provided
the margin of victory for Republicans in closely fought Senate
races in states like Kentucky and South Dakota.

The Massachusetts decision wasn't overturned by the voters, largely
because of the state's intentionally cumbersome
constitutional-amendment process, but California's constitution can
be amended by a simple majority of voters. According to a recent
Field Poll, 51 percent of Californians oppose extending existing
marriage laws to include same-sex couples (although only one-third
of Californians oppose equal civil unions as well). It's possible
that the anti- gay marriage initiative will fail in November, given
the closeness of the polls and the fact that undecided voters may
be moved by the thousands of marriages that will have already been
performed by then. But if the initiative passes, as supporters
expect, the California court's self-congratulatory rhetoric about
the wisdom of imposing gay marriage by judicial fiat will look
shortsighted rather than prescient.

Perhaps the California decision will hurt Democrats less than the
Massachusetts decision in 2004. Christian evangelicals who would be
most motivated to turn out in opposition to gay marriage already
mistrust McCain for opposing the federal marriage amendment. (They
may be more motivated by his opposition to abortion: McCain, unlike
George W. Bush, has called for the overturning of Roe.) But, if the
California decision makes things even marginally more difficult for
Barack Obama, it could set back the broader national cause of gay
marriage for decades to come. With at least two U.S. Supreme Court
appointments, President Obama could lay the foundation for a Court
that might eventually nationalize gay marriage once the country is
ready. A McCain Court, by contrast, could ensure that gay marriage
continues to be fought from state to state for several generations.
As Klarman puts it, "If the California gay marriage decision makes
it harder for Barack Obama, it's hard for me to believe that it's
desirable for supporters of gay marriage to insist on it." My heart
is with my colleague Richard Just, whose eloquent response follows,
but my head tells me that courts have often delayed the cause of
justice when they have attempted to impose contested reforms before
the country is willing to accept them.

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