Viewpoint: What the California Gay Ruling Won't Do

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Kimberly White / Reuters

Two couples wait for California's Supreme Court to rule on a ban against gay marriage in San Francisco, May 15.

A little more than an hour after the California Supreme Court ruled yesterday that gay couples can legally wed, one of the plaintiffs in the case, Stuart Gaffney, was exultant. Speaking for himself and his partner of 21 years, Gaffney told a press conference, "This is the happiest and most romantic day of our lives." Really?

Gaffney and his boyfriend should consider a gay cruise, or just a walk in the park before the weather turns hot. As sweeping as they can be, court decisions are not romantic. The sentiment that courts can deliver happiness is one cherished by generations of civil rights attorneys (and, apparently, their plaintiffs), but before we get too excited, we might pause to consider what the California court did not — and could not — deliver: legal equality for gay couples. As I pointed out in an earlier story, more than a thousand federal laws apply to married couples, and many of them accord substantial benefits in an array of programs, from Social Security to food stamps to federal housing. Gay couples in California will now be able to wed under state law, as those in Massachusetts can, but their marriages will still be something less than what straight Californians enjoy.

I am hoping for invitations to some lavish gay beach weddings in the next few months, but at the end of the year, the gays who stage those weddings will still be filing separate 1040s. That's not going to change any time soon, since both John McCain and Barack Obama (and, for that matter, Hillary Rodham Clinton) share the same position on equality for gay couples: they oppose it. Neither candidate would end federal discrimination against gays who want to marry.

One of the most puzzling things to me about heat for Obama on the left is that the Senator has taken such retrograde positions on gays. A little more than a year ago, after Peter Pace, then chairman of the Joint Chiefs of Staff, told the Chicago Tribune that he believes gay sex is "immoral," Obama initially declined to disagree with him. Obama's campaign waited hours before making clear that gays aren't actually immoral. (Thanks so much!) Later in the year, Obama's campaign enlisted the support of a Christianist entertainer, Donnie McClurkin, who publicly advocates the idiocy that people can change their sexuality by praying to Jesus.

Obama would benefit from reading the California court decision. At enormous length (nearly 30,000 words) and with great clarity, the court laid to rest all the silly arguments against marriage equality marshaled by the right over the last few years. Three quick examples of such arguments:
1. What gays really want is a wholly new right, the right to "gay marriage." The court answered by citing Perez v. Sharp, its own 1948 decision legalizing interracial marriage: "The court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as 'a right to interracial marriage,' and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on... the importance to an individual of the freedom to join in marriage with the person of one's choice... It is a fundamental right of free men."
2. Marriage exists mainly for the purpose of protecting society by encouraging stable homes for children. The obvious retort to this position is that plenty of straight couples don't have children, and yet they can still marry. Those opposed to gay marriage answer this objection by saying that the state can't go around inquiring which straight couples are fertile and which are infertile; they do know, though, that no gay couple can have kids on its own. The California court's wonderfully dismissive response: "If that were an accurate and adequate explanation for the absence of such a limitation, it would follow that in instances in which the state is able to make a determination of an individual's fertility without such an inquiry, it would be constitutionally permissible for the state to preclude an individual who is incapable of bearing children from entering into marriage." Not even the most hard-core opponent of marriage equality takes that position.
3. If gays are allowed to marry, it will send a message to straight people not only that having children isn't important, but that it doesn't really matter whether kids are raised by their biological parents. The court's response: "Although we appreciate the genuine concern for the well-being of children underlying that position, we conclude this claim lacks merit... Our recognition that the core substantive rights encompassed by the constitutional right to marry apply to same-sex as well as opposite-sex couples does not imply in any way that it is unimportant or immaterial to the state whether a child is raised by his or her biological mother and father. We do not alter or diminish either the legal responsibilities that biological parents owe to their children or the substantial incentives that the state provides to a child's biological parents to enter into and raise their child in a stable, long-term committed relationship."

I could go on — the court certainly does — but suffice to say that this ruling effectively ends the academic debate over whether marriage inequality can be justified. By taking on virtually every objection to marriage rights for same-sex couples, even the most transparently bigoted, the court has produced a document that will be cited for generations. By comparison, the 2004 Massachusetts decision legalizing gay marriage in that state was much less ambitious. The California ruling will undoubtedly fuel the efforts of those who want to amend the U.S. and California constitutions to ban gay marriage, but for now it's enough to enjoy the court's bracingly simple money quote: "An individual's sexual orientation — like a person's race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights." I just hope someone alerts the candidates for President.

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