Why the California Court Struck Down the Gay Marriage Ban

There has been a lot of whining lately about how activist judges from San Francisco struck down the "will of the majority" when it ruled the gay marriage ban unconstitutional. This, however, is one of the fundamental purposes of the Supreme Court and the Constitution: to protect the rights of minorities from an aggressive majority. In the words of Kenneth Roosevelt, "the majority is not always supposed to have its way." I thought it might be useful to here revisit the court's ruling in order to understand why it ruled as it did.

In its decision, the court appealed to "this court’s landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 7114 — which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state — makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee."

The bottom line in the court's decision was that since the state already accorded homosexual partners more or less all the substantive rights accorded married couples, and since the state had officially recognized homosexual families as such, the Constitutional protection of families extended to homosexual families as well as to heterosexual families. And since the distinction between marriages and domestic partnerships has the effect of marking homosexual families off as second-class citizens, retaining the distinction would, "as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."

So you see, what it really came down to for the court was a question of "separate but equal". California voters wanted to maintain a verbal separation on the grounds that such a separation was purely formal, and did not violate the protections afforded to homosexual families. The court followed in the old American legal tradition according to which separate is never equal, especially when-- as in this case-- the purpose of the separation is generally understood by both sides to be the maintenance of boundaries between different classes of people, one of which has often been the target of hate crimes that zero in on its separate identity.

In short, Proposition 8 would re-establish a verbal distinction that the court has ruled to be harmful to legally-protected families. What's more, it would actually enshrine that verbal difference in the Constitution of our state, thereby making it immune to future judicial review. I am not comfortable with having something that even potentially harms families enshrined in our Constitution. If the court has found that all families have the right to equal dignity and protection under the law, I want nothing to do with the kind of majority that decides to partially revoke that dignity and protection in the name of its own parochial, sectarian interests.