Finally, some logic on same-sex marriage

Pub date August 10, 2010

EDITORIAL Judge Vaughn Walker’s historic decision overturning Proposition 8 was remarkable not so much for its conclusion, but because it has taken so long for a federal court to conclude that same-sex marriage does no conceivable harm to anyone.

The legal scholars can debate whether this particular civil rights issue deserves strict scrutiny or must meet only a rational-basis test. And everyone knows the case will eventually wind up in the U.S. Supreme Court, where nine justices will decide whether official discrimination can be legal in the United States of America.

But what Walker did was crucial — he devoted the vast majority of his 138-page decision to discussing the facts of the case. As Bob Egelko notes in a nice San Francisco Chronicle piece Aug. 8, Walker provided a forum for the public debate that should have happened around the ballot measure but never did. Prop. 8 was decided after political consultants used carefully honed messages designed to play on people’s emotions; the real facts of the matter were hardly ever discussed on a statewide level.

The facts of the matter, as the record clearly shows and Walker eloquently related, are simple: there’s nothing wrong with same-sex marriage. The ability of same-sex couples to marry has no impact on the rights of opposite-sex couples. There is also no legal reason to believe that something rooted in an old tradition — from a time when gender roles were rigidly prescribed — has, in and of itself, any validity. "Tradition alone," Walker noted, citing a 1970 U.S. Supreme Court case, "cannot form a rational basis for a law." Furthermore, studies show that children brought up by same-sex couples fare just as well (and in some studies, better) than children raised in traditional households.

In fact, the judge concluded, the only real reason Prop. 8 supporters put the measure on the ballot is that they don’t like gay and lesbian people: "Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians, or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate."

That record of factual evidence will make it harder for the Ninth Circuit Court of Appeals or Supreme Court to overturn Walker’s ruling. And the very essence of his decision — that no harm comes to anyone in society when same-sex couples are allowed to wed — is ample reason for him to deny any stay while the case is on appeal. A stay, which would leave Prop. 8 in effect for several more years while the case works its way through the system, would make sense only if some irreparable harm would come to some party. There’s no such harm — real or potential or imaginable — to anyone or anything except institutional and personal bigotry.

The decision demonstrates another crucial factor, one that politicians of both parties should pay attention to this fall. Courts tend to (slowly) reflect changing attitudes in society. And while the polls are still inconclusive, the demographics are not: Almost nobody under 30 opposes same-sex marriage, and every year that passes, California and the country come closer to the day when Prop. 8 will seem as silly as anti-miscegenation laws.

Both Attorney General Jerry Brown and Gov. Arnold Schwarzenegger have asked Walker not to stay his ruling. Sen. Barbara Boxer has hailed the decision. But Republican gubernatorial candidate Meg Whitman and Senate contender Carly Fiorina remain adamantly opposed to same-sex marriage. Brown and Boxer shouldn’t be afraid to make this part of their campaigns. There’s not a whole lot to bring young people to the ballot this fall, and making Prop. 8 an issue can only help the Democrats.

It’s also worth remembering that nearly every Democratic leader in the nation blanched when San Francisco, under Mayor Gavin Newsom did the right thing and legalized same-sex marriage in 2004. We warned then that Sens. Boxer and Dianne Feinstein, Speaker Nancy Pelosi, and the rest of the Washington crew would wind up on the wrong side of history. And now that a judge who has never been known as a leftist (or even a liberal) has made the case that marriage is a civil right and discrimination is never legally acceptable, they ought to admit they were wrong.