Gay Marriage: A Loss Is a Win?

It wouldn't be an election year without a debate over gay marriage. Right now, the center of attention is the California Supreme Court, where the ...
by | March 6, 2008

It wouldn't be an election year without a debate over gay marriage. Right now, the center of attention is the California Supreme Court, where the case to overturn the state's ban on same-sex nuptials had a hearing on Tuesday.

As the Los Angeles Times described it, the justices seemed inclined to leave the prohibition in place:

During more than three hours of arguments from lawyers for and against same-sex marriages, several justices appeared to be skeptical of legalizing the unions, suggesting they see the state's domestic partnerships as marriage in all but the name.

...

Three of the court's seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman, one suggested that gays should prevail and the other three asked questions critical of both sides.

I've been wondering whether a defeat in the California case would really be a bad thing for the gay rights movement. A victory might be short-lived, if it drove the state's voters to ban gay marriage in the state constitution.

If the California court ruled in favor of the gay couples, the decision might reverberate in other states that are currently considering constitutional bans on gay marriage, including Iowa, Indiana and Florida. It also might serve as an effective talking point for candidates -- state or federal -- that oppose gay rights.

But, it might not.

In spite of the 2004 Massachusetts ruling that legalized gay marriage, the issue has faded into the background to some extent over the past couple of years. If a second state followed Massachusetts, it's not clear that such a move would represent an earth-shattering political event. Perhaps the impact would be bigger if the state were California and if the decision came from a court (which would probably stir more opposition than a legislative action).

Andrew Sullivan, for one, argues that gay marriage supporters should turn their focus away from the judiciary:

The great achievement of the marriage movement has been to establish that marriage equality is a legitimate and constructive social reform, to establish it securely in one state and to tell our stories across America. The speed of change has been phenomenal - far faster than many of us ever dreamed of when we embarked on this two decades ago.

And that means that our chance to win democratic and legislative victories is now much, much higher than it has ever been. We have also managed to prevent the worst from happening: a federal constitutional amendment. And so our task now is to keep making the case, keep building and strengthening our own families, keep reaching out to the next generation of more inclusive Americans. Establishing civil unions and domestic partnerships that are the equal of civil marriage is enough work for now. The society needs time to absorb this change, and to let go of its own irrational fears. Using courts to establish a precedent is one thing; using them to force social change prematurely when it is happening at its own pace anyway is foolish.

Sullivan is right when he says the chances of legislative approval of gay marriage are much higher than they've been in the past. New Jersey is very close to endorsing same-sex marriage. In New York, Gov. Eliot Spitzer and the Assembly are both supportive, so if the State Senate (where Republicans have a 32-30 edge) goes Democratic, the state will warrant watching.

Most notably, the California legislature keeps sending Gov. Arnold Schwarzenegger same-sex marriage bills, which he keeps vetoing. So, barring a surprise from the California Supreme Court, the fate of gay marriage will almost certainly be in the hands of the next governor.

Josh Goodman
Josh Goodman  |  Former Staff Writer
mailbox@governing.com

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