As California goes on gay marriage ...

Today’s question: What effect, if any, might the California decision have on other states? Could this become an issue in the presidential campaign? Davidson and Lavy continue their debate. Click here to read Monday’s installment.

A guiding light for other states
Point: Jon W. Davidson

Even though you disagree with the outcome, Glen, you must agree that the impact of the state Supreme Court’s decision is likely to extend well beyond California.

California’s Supreme Court has long been one of the nation’s most highly regarded courts. It is generally recognized as both moderate and nonpartisan. Chief Justice Ronald M. George, who authored the majority opinion, was appointed by a Republican governor, as were two of the three other justices who joined the opinion. These factors -- together with how reasoned and principled the exhaustive, 121-page majority decision is -- will make it highly influential to other courts deciding similar issues.

Connecticut’s high court is one of those. That court is expected to rule soon on the same issue decided in California: whether the fundamental right to marry and the constitutional guarantee of equal protection can be satisfied by relegating one group of people to some other status with a different name. The California decision concluded that “the exclusion of same-sex couples from the designation for marriage works a real and appreciable harm upon same-sex couples and their children.” It explained how that exclusion marks gay couples as second-class citizens and how the unfamiliarity with terms other than marriage causes them significant practical difficulties, often during emergencies. The decision found that allowing same-sex couples to marry, however, does not deprive opposite-sex couples or their children of any rights. This insightful evaluation of what’s at stake should go far in shaping the Connecticut court’s thinking.

Other aspects of the decision should be helpful to Iowa’s high court, which currently is considering the trial court victory Lambda Legal achieved in our marriage case there. The California decision makes clear that same-sex couples do not seek a right to enter a new-fangled institution called “gay marriage,” just as prior cases did not seek a new right of “interracial marriage” or “prisoner marriage.” The decision also powerfully explains why laws that discriminate based on sexual orientation should be viewed with suspicion. Although sexual orientation is irrelevant to the ability to contribute to society, negative attitudes about gay people often have led to them being singled out for unequal treatment.

In addition, the California decision’s compelling analysis and stirring words are likely to assist the legislative efforts to secure marriage equality in states such as New Jersey, New York and Rhode Island. And the decision already is helping move public opinion in favor of allowing same-sex couples to marry, as evidenced by the large number of recent newspaper editorials supporting the case’s outcome.

The presidential election, however, is one area in which the decision is unlikely to make a difference. Arguments that marriage tipped the scales in the 2004 election have been persuasively rebutted. Voters are committed to values, but not the kind that lead to unfairness and inequality. Instead, the electorate is most concerned about our weak economy, sky-high gas prices, failing healthcare system and soldiers in Iraq.

Voters are tired of politics that seek to divide us by our differences. That’s why many prominent Californians, including Gov. Arnold Schwarzenegger and Los Angeles Mayor Antonio Villaraigosa, are not only opposed to the divisive anti-gay-marriage amendment that will probably make the November ballot, but have pledged to fight against it. We think that Californians’ belief in fairness will lead a majority to join them in supporting all couples who want to express their commitment through marriage.

Jon W. Davidson is the legal director of Lambda Legal, a nonprofit legal organization dedicated to protecting the civil rights of lesbians, gay men, bisexuals, transgender people and those living with HIV. Lambda Legal was counsel in the case that led to last week’s decision from the California Supreme Court.

A guiding light all right — away from it
Counterpoint: Glen Lavy

Jon, you make a good point that the California court’s decision will have an impact on other states, but I think you’re missing something.

The decision could very well generate a response like the Massachusetts high court’s 2003 ruling and San Francisco Mayor Gavin Newsom’s 2004 fiasco did and lead to the enactment of additional state marriage amendments. Voters across the nation made it clear in 2004 that they do not like courts or politicians ignoring the will of the people, and they are likely to make this point again. The threat of California’s same-sex “marriages” being exported to other states might galvanize voters, and perhaps even legislators, in states that otherwise may have been content without marriage amendments. The response could be even more dramatic if Connecticut and Iowa follow California’s revolutionary example.

In addition, if the California court does not stay its ruling pending the outcome of the November vote on the marriage amendment, the decision will lead to wasteful litigation in other states when same-sex couples who travel here to marry demand recognition of their California marriage licenses back home. That litigation will become even more complicated when California voters amend their Constitution in November.

Despite the court’s statement that creating a right for same-sex couples to marry is not a new right, people know better. The New York high court cogently observed in 2006 that until recently, no one even considered the possibility that same-sex couples could marry. In fact, no major civilization ever considered same-sex relationships the equivalent of marriage before 2000. That stands in stark contrast with interracial marriage, which has been understood as marriage throughout recorded history. Indeed, the famous Loving vs. Virginia case in 1967 was based on a criminal prosecution of an interracial couple because they were married. And in 1875, the California Supreme Court ruled that an interracial marriage formed in Utah would be recognized in California despite state law prohibiting such marriages. Unions of interracial men and women have always been understood as marriages except where specifically prohibited by law; same-sex relationships never have, regardless of whether the law said anything about them. That is why this is a newly created right.

As for the election, it’s possible the decision could have a significant impact. Many voters who aren’t particularly concerned about marriage don’t like elitist judges reversing public policy that has been established through the political process. The clear difference between the presidential candidates on the types of judges they intend to nominate could motivate many voters to support a candidate that they otherwise would have rejected.

In sum, the California court’s failure to acknowledge that it was creating a new right and its failure to acknowledge that it was redefining the term “marriage” is likely to move public opinion in the opposite direction of what you predict, Jon. Sure, ardent supporters of same-sex relationships have written editorials supporting the outcome, but millions of Californians are outraged. That doesn’t make them bigots who hate concepts of fairness or equality; it simply means that they believe in the governmental system established by the California Constitution.

Jon, the divisiveness that you lament is not the result of support for something that’s “traditional.” It is the result of those who are trying to foist radical change through the judiciary rather than the political process. That is something that a broad spectrum of Americans rejects.

Glen Lavy is senior counsel with the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations dedicated to protecting religious liberty, the sanctity of life, marriage and the family. ADF and Lavy have been involved in same-sex marriage across the country, including the recent decision from the California Supreme Court.