The California State Supreme Court reopened the gay marriage issue in a 4-3 decision yesterday, ruling that same sex marriages will be legal in the Golden State in 30 days. The delay is to give counties time to get their licensing procedures in line with the mandate.
There are two facets in play here, constitutional and political. Constitutionally, the court is on firm ground. Politically, the action carries the potential to hurt Democrats and help Republicans in this election year.
Constitutionally, the court demolished the arguments against same sex marriage. Chief Justice Ronald George's 30,000-word opinion dealt in detail with each contention raised by the lawyers arguing against the practice. At the heart of the ruling is the constitutional requirement for equal protection under the law. The decision states, "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." The court specifically cited as precedent the 1948 California Supreme Court decision Perez v. Sharp that overturned laws against interracial marriage, placing gender-based discrimination in the same category. Simply stated, under a constitution that mandates equality, there actually has to be equality. Period.
Another principal justification was the existence of a strong civil union law in the state. By already legally extending the rights and responsibilities of marriage to same sex couples the court held that the state has, in fact, already approved it. But by refusing to use the term and establishing the rights under a separate set of laws, the state evidences a pattern of discrimination. A duck is still a duck. Calling it a goose doesn't change the reality.
The ruling also answered specific objections raised in lawyers' arguments in the case. One contention was that the state has an interest in promoting the propagation of children into families. Since same-sex couples cannot produce children, they can be treated differently than opposite sex couples, the reasoning went. The court's answer: "If that were an accurate and adequate explanation...it would be constitutionally permissible for the state to preclude an individual who is incapable of bearing children from entering into marriage. "
On constitutional principles the ruling is irrefutable. It is noteworthy that six of the seven justices of the court are Republicans appointed by Republican governors. The majority could come to no other conclusion than that it is plain hypocrisy for a society to stand for equality in its foundational constitutional documents and then single out certain groups as exceptions. It is about time this principle, applied by earlier courts to race and gender, was similarly established with respect to sexual orientation.
Politically, however, it is a different ballgame. The latest Gallup national survey on the matter, taken this month, finds 40% of Americans in favor of permitting same sex marriages and 56% opposed. George W. Bush may owe his re-election in 2004 to the legalization of same sex marriage in Massachusetts that year. The resulting furor energized opponents of the practice, particularly evangelicals, who turned out in droves to vote for the President who shared their views. It is possible that could happen again this year, to the overall benefit of Republicans and the detriment of Democrats.
Gallup's findings on the matter found that 16% of respondents consider the issue so important that a candidate must share their position on gay marriage to get their votes. 49% said it was one of many factors, while 33% said it was not an important issue to them. Democrats supported same sex marriage 50% to 45%, independents opposed it narrowly, 47% to 41%, and Republicans opposed it 67% to 26%. Interestingly, all three groups support civil unions: Democrats 46-41, independents 49-37 and Republicans 46-43. What is unclear about these figures is the reasoning of the respondents. We might presume that Republicans who oppose both gay marriage and civil unions do so for the same reason. But how many Democrats of the 41% who were against civil unions did so because they felt they were not enough, that gay marriage should be completely legalized? The poll does not tell us.
Two additional factors come into play are the breakdown by age and time. Younger voters in the 18-24 and 25-39 age groups were more supportive and older ones more opposed. Every succeeding age group was less favorable than the younger group before it. People over 65 were overwhelmingly opposed, to the tune of better than 85%. It could be argued that if this issue assumes major importance in the 2008 election, the record primary turnouts of younger voters might do much to minimize the Republican electoral advantage if they come out again in November.
And by time, I refer to how support for gay marriage has increased over the years. When Gallup first began asking the question in 1996, only 27% were in favor and 68% were opposed. The "pro" side has been growing by about 1% per year. Some supporters feel that as older Americans fade from the scene and successive generations continue to change the demographics, same sex marriage will eventually be accepted by the overwhelming majority. They point to surveys showing that interracial marriage was favored by only 27% at the time of Perez v. Sharp. I tend to think this expectation will be borne out, but certainly have no empirical way of knowing. Time will tell.
In California, opponents of the ruling are working hard to qualify an initiative for the November ballot that would amend the state constitution to forbid same sex marriage. It is expected to get enough signatures to be placed on the ballot, and could spawn similar efforts in other states. Republican Governor Arnold Schwarzenegger has twice vetoed bills sent to him by the legislature that would have legalized same sex marriage. But following the court's ruling this time the Governator said he had attended same sex commitment ceremonies and that they were,"no big deal." He said he would follow the court's ruling and will not support the initiative campaign to overturn it.
In terms of the 2008 presidential election, Barack Obama has said he opposes same sex marriage but supports civil unions. John McCain supported a same sex marriage ban in Arizona but did not vote for the federal "Defense of Marriage Act," on the grounds that he feels marriage and family law are the purview of the states. Based on the absence of any mention of marriage in the U.S. Constitution I would say he is right about that.
But getting back to its effect on the balloting, I surmise the issue has lost some of its punch compared to 2004. The voters are facing so many more pressing issues that are directly impacting their lives this year. But with the Republicans seemingly headed for desperate straits I expect them sooner or later to try to make it a major rallying cry in this campaign. I feel it will help them some, but not as much as it did four years ago. And if they hang onto it in future years there will come a point at which it begins to hurt them. The times they are a changin' on this one.
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