I have been feeling very queasy on this decision, mostly, that this decision amounts to judicial activism -- when courts overrule the will and vote of the people. It seems as the justices could give a damn for the tradition of vox populi, vox dei (the voice of the people is the voice of God).
USA Today, a reasonably liberal newspaper, published an editorial today which I agree with wholeheartedly in every aspect:
Our view on same-sex marriage: California ruling invites backlash against gay rights
Thu May 22, 12:22 AM ET
Last week, when California became the second state after Massachusetts to allow gay marriage, same-sex couples celebrated and began planning June weddings. Good for them. But the unfortunate and unnecessary impact of the California Supreme Court ruling might well have been to set back the cause of gay rights more broadly.
(Photo - In San Francisco: Christmas Leubrie, left, and Alice Heimsoth celebrate last Thursday / Jack Gruber, USA TODAY )
The judges ruled 4-3 that gays' inability to get married amounts to discrimination under California's constitution, even though the state's domestic partnership laws give them the benefits and responsibilities of marriage.
In other words, pragmatic political compromise on the intensely controversial issue is not allowed in California. It's all or nothing, and recent political history leaves little doubt about what will follow.
In the three years after Massachusetts' top court legalized gay marriage in 2004, 23 states rushed to adopt constitutional bans on gay marriage. This presidential election year is likely to bring more of the same.
In effect, California's high court fixed something that wasn't broken. The state's domestic partnership laws have been a model for other states searching for the needed middle ground that addresses the deep-felt national division over gay marriage.
A recent Gallup poll shows that although 40% of Americans say marriage for same-sex couples should be legal, up from 27% in 1996, 56% still are against gay marriage. At the same time, the nation is far more accepting of homosexuality than it used to be. Several polls have shown that most Americans favor civil unions — which convey the same legal rights as heterosexual marriage — as a reasonable balance between the hard-line attitudes expressed in the two opposing views below this editorial. Eight states allow gay couples to enter civil unions or register as domestic partners.
Sometimes, of course, courts do need to intervene to force morally and constitutionally necessary changes — such as mandating school integration and overturning bans on interracial marriage — when voters or their elected representatives won't do so.
But the domestic partnership laws in California are hardly equivalent to the egregious racial discrimination of the Jim Crow era. Far from denying rights, they guarantee gays equal treatment in such important areas as raising children, assigning responsibility for medical choices and settling financial matters.
By pushing the envelope, the California ruling will help those who want to deny gays such rights — blatant discrimination that reaches far beyond understandable differences rooted in the religious meaning of marriage. Even in California, an initiative is already underway to put a same-sex marriage ban into the state constitution. Similar bans are likely to be considered in Arizona and Florida. Failed attempts to amend the U.S. Constitution will revive.
The special status and sanctity of marriage is the ultimate blessing for couples who want to spend their lives together. Eventually, the nation might be ready to extend the institution to same-sex couples. But, as New Jersey's top judges wrote in a 2006 gay marriage decision, courts "cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society."
It will be regrettable if the impact of the California decision is to slow or reverse that evolution.
