The Plank

Jeffrey Rosen On The Gay Marriage Ruling

Many are celebrating yesterday's decision by the California Supreme Court to legalize gay marriage in the state; others are bracing for a referendum battle; and some, cooped up in campaign offices, are trying to figure out how best to play it. So, in an effort to see the ruling from as many perspectives as possible, we've enlisted a few friends of the magazine to offer their thoughts. First, we have Jeffrey Rosen, who is TNR's legal affairs correspondent.

Why did the California Supreme Court endorse gay marriage with an unnecessarily expansive decision that seems specifically designed to drive conservatives and moderates crazy? If the gay marriage decision triggers a backlash that hurts the Democrats' chances in November--as the Massachusetts Supreme Court hurt John Kerry with its unnecessarily expansive gay marriage decision in 2003--the politically controversial result, rather than the legal reasoning, will be the main culprit. But legal reasoning isn't irrelevant, as the backlash against Roe v. Wade shows: Because Roe was so poorly reasoned, pro-life activists found it easier to rally undecided voters under the guise of attacking judicial usurpation. On that score, the California decision represents a huge opportunity for gay marriage opponents who are already trying to persuade undecided voters to overturn the decision by popular initiative.

So what makes the legal reasoning so inflammatory? Most controversially, the Court held that sexual orientation discrimination should be treated just as skeptically as racial discrimination--a conclusion that the U.S. Supreme Court and the other state Supreme Courts have refused to accept. Social conservatives are already invoking contested science to question 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 for Advocates for Faith and Freedom told The New York Times. There was no need to open this Pandora's Box: The Court could have held more modestly that there are no rational reasons for limiting the label "marriage" to straight people and denying it to gays and lesbians.  

But the Court went further still, holding that the California legislature's remarkably progressive decision, in 2003, to expand its Domestic Partnership law to give gays and lesbians all the legal benefits of marriage itself represented an unconstitutional effort to demean gays and lesbians, rather than to treat them equally. That's a possible reading of California's effort to create a separate but equal category of civil unions, but it's certainly not the only interpretation. In passing the Domestic Partnership Law, the California legislature said 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." And all three major presidential candidates--Barack Obama, Hillary Clinton, and John McCain--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 the Dred Scott decision shows. Of course, any pro-gay marriage decision by the California Supreme Court right before a presidential election would have created a firestorm. But by writing the most combative and legally expansive decision possible, the California Court just handed its opponents a golden opportunity.

--Jeffrey Rosen

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