From California with Love
Why same-sex marriage will inevitably become a national issue this fall.
Jun 2, 2008, Vol. 13, No. 36 • By JEFFREY BELL
In the guise of interpreting the California constitution, the state's Supreme Court on May 15 made certain that the issue of same-sex marriage will be a national one in the 2008 presidential race. The 4-3 decision ripped away the presumed middle ground on the issue and (assuming the court grants no stay of implementation before mid-June) all but issues an invitation to out-of-state same-sex couples to migrate to California to be married between now and Election Day, November 4. This in turn makes certain that the federal courts will have the option of reinvolving themselves within a matter of months, regardless of the outcome of California's referendum on a constitutional amendment restoring traditional marriage.
First, on the destruction of the middle ground: The majority opinion by Chief Justice Ronald George, a Pete Wilson appointee, ruled that decisions by the California legislature to give same-sex domestic partnerships every right enjoyed by married couples are not enough. These partnerships must also be given the name of marriage. Any decision to deny, not the benefits, but the word "marriage" is the equivalent of the "separate but equal" rationale used by racists of bygone days to uphold segregation in southern public schools.
For politicians trying to walk down the middle of the road, leaving supporters of traditional marriage the term "marriage" while awarding gay couples some or all of the benefits of marriage, there has to be a feeling of Catch-22. Give in to the gay rights movement on substance, and judges will still equate you with the Ku Klux Klan and find your willingness to compromise a decisive reason for finishing the job. At one point in his book-length opinion, Chief Justice George helpfully indicated that his opinion might have been more moderate if California legislators had denied some of the economic benefits of marriage to gay couples.
Second, on California's immediate future as a national Mecca and pilot project for same-sex marriage: When the Massachusetts Supreme Court legalized same-sex marriage in 2003, the state already had a residency requirement on the books effectively prohibiting couples from coming to Massachusetts to marry. California puts up no such barrier.
The fact that a state constitutional amendment may end same-sex marriage in California if passed by state voters on November 4--the first polling since the decision indicates the amendment has roughly a 3-2 lead--makes couples more rather than less likely to jam into California's wedding venues in the weeks and months before the election. That is because passage of the amendment would bring an abrupt end to same-sex weddings in California without in any way invalidating the marriages performed during the four-month window between mid-June and early November. In these four-plus months, same-sex marriages performed in California will have the force of law thanks to the state's Supreme Court, and even after a voter reversal, should it occur, California officials may have no ground for regarding the couples married during the window as anything other than legally married.
This should in turn prompt the long-awaited challenge in federal courts to the Defense of Marriage Act (DOMA) of 1996, passed overwhelmingly by Congress and signed into law by President Clinton. The purpose of DOMA was to enable states favoring traditional marriage to avoid the consequences of the Full Faith and Credit provision in the Constitution. This provision allows beneficiaries of one state's laws to go to another state without forfeiting those benefits. Many legal observers believe DOMA is unlikely to survive court challenge, given the mind-set of the federal judiciary and the existence, thanks to the judges in California, of newly "married" couples in most other states with clear standing to sue.
As to the presidential race, neither John McCain nor Barack Obama will be able to campaign in California without answering detailed questions on the court decision and (assuming it goes to ballot) the referendum to overturn it by amending the state constitution. In fact, McCain has prospectively endorsed the California amendment, whereas Obama has said he "respects" the decision of the court. While nominally in favor of marriage as being between a man and a woman, Obama will not favor a Yes vote on the ballot measure, which is California's only chance to restore the definition Obama says he favors.
But respecting the decision of one state's high court to ratify same-sex marriage does not commit Obama to spreading same-sex marriage everywhere else--does it?
In real terms, it does. The Defense of Marriage Act is now the only (very shaky) legal barrier standing in the path of nationally mandated recognition of same-sex marriage. What is Obama's stance on DOMA? He recently endorsed its repeal.
Needless to say, Obama also opposes amending the U.S. Constitution to protect traditional marriage, even though with DOMA overturned or repealed a federal amendment would become the only possible means of achieving that end. (McCain has also opposed the federal amendment, but he has indicated he will endorse it if the state-by-state decision-making he favors becomes impossible.)
Finally, the California decision brings front and center the two candidates' views of judicial appointments. McCain is committed to selecting advocates of judicial restraint, along the lines of recently confirmed justices John Roberts and Samuel Alito. Obama voted against both Roberts and Alito. His criteria for selection would be "what is in the judge's heart" and "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."
Thanks in large part to four justices in California, the choices on November 4, in the nation as well as in California, could not be clearer or more consequential.
Jeffrey Bell, a visiting fellow at the Ethics and Public Policy Center, is writing a book on social conservatism to be published by Encounter Books in 2009.