California and Gay Marriage
Supreme Court Says Constitution Affords Gays Utmost Protection
Jun 18, 2008
In May of 2008, the California Supreme Court ruled that homosexuals should be allowed to marry, and that prohibiting them from marrying interfered with their fundamental right to do so.
Thus, the California Supreme Court elevated sexual orientation to the same level as race and gender. That is, any case in that state involving perceived discrimination on the basis of sexual orientation will be viewed with the highest possible scrutiny. That, however, is not the case at the federal level. In fact, more than three decades of U.S. Supreme Court jurisprudence says that cases involving suspected gender discrimination are not scrutinized as much as those involving suspected race discrimination. Sexual orientation is afforded the least possible scrutiny under the federal constitution.
California, though, is a sovereign state and absolutely free to interpret its own constitution the way it sees fit, as long as it does not interfere with the U.S. constitution.
So why, then, is there such an uproar after the court’s decision? Is it because the gay lifestyle is supposedly being celebrated? Is it because it’s seen as an assault on the institution of heterosexual marriage? Is it because the vast majority of people in this country are opposed to letting homosexuals get married? Whatever the reason, it has many conservatives and republicans arguing against one of the basic tenets of the conservative philosophy—states’ rights.
There is little that is guaranteed in this life. One thing that you can bet the farm on, however, is that John McCain and right-wing pundits will do their best to make gay marriage an issue before November, even if McCain himself is not comfortable talking about those so-called family values that the right loves to address. There might even be talk again of amending the federal constitution to ban gay marriage, an idea that frightens true conservatives, who are finding it increasingly difficult to stand up to the Republican Party these days.
First of all, no one can deny that—as a whole—the institution of marriage in America has lost much of its luster, considering that the divorce rate is hovering comfortably around the 50% mark. What exactly the most vehement opponents of gay marriage think that they are protecting is perplexing.
Secondly, gay marriage in Massachusetts—which is legal—is proof that the sun will still rise and set wherever gay marriage is allowed, and that gay marriage bears no relationship whatsoever to the effectiveness or ineffectiveness of a heterosexual marriage. Plainly put, gay marriage is not a threat to traditional marriage.
And finally, this gem from critics has popped up since the California Supreme Court issued its decision: most Americans—and even most Californians—are against gay marriage; thus, the courts are again refuting the will of the people.
This is the same flawed argument so often given by those screaming “judicial activism” at every other court decision: judicial decisions in this country, whether it’s a federal court or a state court, have never been about the will of the people. If the will of the people mattered to the judiciary, we would call it the legislature. The judiciary is a co-equal branch of government, set up to interpret the various laws and constitutions across the country. If the California Supreme Court says that the California constitution affords sexual orientation the utmost protection under the law, then who are we to argue?
