The California Supreme Court struck down two state laws banning same-sex marriages Thursday, becoming the second state, after Massachusetts, to allow gay and lesbian couples to wed. Nothing ignites the blogosphere like a good wedge issue.
“The amazing thing about the opinion, much to the dismay of the religious right I’m sure, is just how conservative it is,” writes Susan Russell, an ordained Episcopalian minister and lesbian living in California, on her blog An Inch At A Time: Reflections on the Journey. “There is no judicial innovation here, just the recognition that, under well established law, marriage is fundamental right and that for a statute abridging that right to pass constitutional muster, the government must demonstrate a compelling state interest served by that restriction.” At the Feminist Law Professors blog, the University of Pittsburgh’s Anthony C. Infanti offered a quick breakdown of the decision’s implications: “I was most relieved to see the court reject the idea that same-sex couples need not be given access to marriage because a California domestic partnership can provide them all of the substantive rights and obligations attendant to marriage.”
Sarcasm alert: At Everything Shines, Danny Pitt Stoller works out the math for nationwide acceptance of gay and lesbian marriage. “Massachusetts made same-sex marriage legal in 2003. Now California! Soo, one state every five years. At this rate, we’ll be all set by 2243.” And the headline from The Ocean State Republican says it all: “Congrats, CA Supreme Court! You’ve Just Put California Back Into Play for the GOP!”
Pointing to California’s 2000 statewide referendum that banned gay marriage, some gay-marriage opponents are complaining about judicial activism. Mr Marano at Propaganda Buster took the judicial activist angle. “Sixty-one percent of California voters who voted, approved a ban on gay marriage. Then one judge (the ruling was 4 to 3) ruled that the ban was unconstitutional and threw out the results of the election. … Okay you can now laugh about the joke of democracy in the United States.” Byron at the No Kool Aid Zone called the ruling “a huge step backward for Californians, every single Californian, homosexual or not. To arrive at this illogical and preposterous ruling, the California Supreme Court usurped authority not inherent in its constitutional powers, and stripped every single Californian of his/her rights to vote in a meaningful way.”
Meanwhile, conservative blogger and gay-marriage opponent Hugh Hewitt is looking forward to November, when California will probably vote on a constitutional amendment banning gay marriage: “This will be an enormously important election for the future of the country. Marriage is of course a central institution that society must protect and nurture, but the idea of separation of powers and accountability for courts is also a bedrock principle of the rule of law, and it is eroding before our eyes.”
UCLA Law professor Steven Bainbridge, who favors civil unions and calls himself neutral on gay marriage, has an interesting take on judicial activism. He quotes Ruth Bader Ginsberg talking about Roe v. Wade halting acceptance of abortion and writes: “Today, gay marriage occupies much the same spot in the political field that abortion did in 1973. Accordingly, I think it’s instructive to compare the NY high court’s decision to leave the issue to the legislature to the judicial activism we saw today from the California Supreme Court.”
This being an election year, many are weighing in on the candidates’ responses. Pam of Pam’s House Blend was unimpressed by any of the three. “Good lord, this ‘leave it to the states’ bullsh*t is so tired. Clinton and Obama are lawyers, for god’s sake. They know the precedent of Loving v. Virginia on this, but as we’ve known for some time, marriage equality is the one area of intellectual political dishonesty they have settled on for this election cycle.” But Politico’s Jonathan Martin is unconvinced that same-sex marriage will be on the political agenda this fall: “Because Obama is not where the far left wants him to be (marriage) and McCain not where the far right wants him to be (a federal ban), this is not something either will probably make front and center.” Gay conservative Andrew Sullivan responds: “I see his point but I still bristle at the notion of marriage rights being a ‘far left’ position. … It’s equally true that a federal ban is not meaningfully ‘far right.’ There is absolutely nothing conservative about amending the federal constitution to deal with a matter of social policy that is best left to the states. I wish these tired and misleading labels could be put to one side.”
Sullivan’s colleague Matthew Yglesias finds the issue fairly moot at this point: “[W]hatever happens this November, this is essentially a fight the right has already lost. Individuals’ views are evolving in a more pro-equality direction, but perhaps more importantly pure cohort replacement effects doom the conservative position on gay rights questions with equality enjoying overwhelming support among younger Americans.”
Read more about California’s ruling. Got a while? In Slate, our legal bloggers react to the ruling in Convictions, and E.J. Graff explains how marriage has changed Massachussets in XX Factor. Kenji Yoshino breaks down the decision, Emily Bazelon explains why voters might not freak out, Dahlia Lithwick explores which branch of California’s government has been most “activist,” and William Saletan claims our bans on polygamy and incest, as well as homosexuality, are losing ground.