The Equality Issue

Before the talk-radio showmen sink their fangs into Monday’s state court ruling overturning California’s ban on gay marriage, and before too many celebrations in front of San Francisco’s City Hall, we’d like to say that Judge Richard Kramer reached the right decision. That doesn’t mean having judges decide such explosive social issues settles them.

The historical definition of marriage, by itself, the judge said, cannot justify the denial of equal protection to gays and lesbians. The San Francisco Superior Court ruling was the result of a pair of lawsuits that focus on a voter initiative, passed in 2000, that amended state law to limit marriage to a union between a man and a woman.

Those uncomfortable with the concept of gay marriage -- and according to opinion polls, that includes a majority of Americans -- may argue that marriage is an unnecessary step because California law already grants same-sex couples who register as domestic partners virtually the same state rights and responsibilities as married couples. That argument further undermines any reason for states to make the moral judgments about which adults can marry and which can’t. Let priests, rabbis and imams decide which marriages should receive their blessing, but as to legal and social rights, the state has no business discriminating.

The legal battles over same-sex marriage are not the first time that the courts have gotten ahead of public opinion on social issues. This nation’s long civil rights history is one of two steps forward, backlash, another step or two forward.

Kramer is the fourth trial judge across the country to decide in recent months that same-sex couples should have the right to marry. Those who oppose his ruling, and similar decisions elsewhere, are betting that higher courts and voters will ultimately settle the issue in their favor. Indeed, efforts to place a measure on the November ballot carving a gay-marriage ban into California’s Constitution no doubt got a big boost from Monday’s decision.

Last November alone, voters in 11 states passed such mean-spirited measures, and President Bush says he still backs an amendment to the federal Constitution defining marriage as a union between a man and a woman. So far, only Massachusetts recognizes same-sex marriages.

Opponents of Monday’s decision will be quick to denounce it as judicial activism and result-oriented jurisprudence. They will point out what is indisputable: that the authors of the identical words in the U.S. and California constitutions guaranteeing “equal protection of the law” never envisaged the possibility of gay marriage, let alone making it a constitutionally guaranteed right. The judicial power to overturn the popular will is extraordinary and potentially dangerous medicine. But “use with care” doesn’t mean “never use at all.” The “equal protection” words are there, and are there to be used.

Respect for democracy and the Constitution -- as well as simple prudence (judges can do things you don’t like, as well as things you do) -- requires us to consider the reasoning of a decision, however much we may like the result.

In the coming days, that reasoning will receive close scrutiny. The judge argues that forbidding same-sex marriage is gender discrimination. A better argument would be that gays are a classic example of a group that needs constitutional protection from the tyranny of the majority. There is no special reason to assume that the Constitution’s framers would disagree with that analysis if they were living in today’s society.