California Courts Overrule the Ban on Gay Marriage

California Courts Overrule the Ban on Gay Marriage – But are Americans Ready to Accept It?

Until yesterday gay marriage seemed to have fallen off the radar screen of hot button political topics, as the public and politicians increasingly looked to “civil unions” as a solution to the problem of offering homosexual men and women a way to legalize their unions without touching the sacred cow of heterosexual marriage.

But now the California Supreme Court has blown that strategy wide open by ruling that the state's ban on gay marriage is unconstitutional and effectively treats “gay individuals and same-sex couples [as] in some respects second-class citizens” (http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF).

In other words, the Court sees “civil unions” as akin to the “separate but equal” schools that segregationist states once offered black citizens; in both cases, the Court deemed these alleged “alternatives” equal only name only.

Suddenly, the idea that a state with 12% of the nation's population and an even larger proportion of its gay citizens could offer those citizens a legal recognition of their same-sex unions is not just a theoretical prospect; it could become a reality in as little as 30 days.

But while gay rights supporters rejoice, they also must face the sobering prospect that this ruling is not a definitive one, and the memories of the short-lived celebrations of gay marriages in San Francisco under Mayor Gavin Newsom in February 2004, could make many people reluctant to celebrate too soon. For conservatives are already gathering signatures for a ballot initiative that would amend the state constitution specifically to exclude same-sex couples from marriage rights.

At the same time, moderates who support civil unions as a first step towards gay marriage, may feel uneasy at this precipitate move by the California Supreme Court, fearing a backlash from social conservatives who not only oppose gay marriage, but also gay civil rights.

In the presidential race, the Democratic front runners, Barack Obama and Hillary Clinton, will have to walk a tight-rope between gay rights advocates, and those who either think civil unions are good enough or those on the socially conservative spectrum of the Democratic party who might bolt to the McCain camp if the candidates get too far ahead of mainstream public opinion on controversial social issues like gay marriage and abortion.

Certainly, gay marriage opponents have been quick to condemn the California Court's ruling in statements rife with words like “shock” and “outrage.” Maggie Gallagher, president of the National Organization for Marriage, told Alex Chadwick of NPR's Day to Day that this ruling made people like her “who think that marriage is the union of husband and wife exactly like bigots who opposed interracial marriage” and argued that they “will be treated like racists in the public square,” (May 16, 2008).

But if social conservatives are expressing anger, they may well find themselves swimming against a tide of public opinion that has turned away from their attitudes towards same-sex marriage in the intervening years since California voters passed a gay marriage ban in 2000.

The Pew Research Center finds that opposition to gay marriage has fallen 12% since February 2004, although it remained just over 50% in March of 2006. At the same time, 54% of Americans approve of a legal alternative to marriage for gay couples, and that support is rising, particularly among the young.

For many young people who go to school with growing numbers of their classmates who “come out” in high school or even middle school, the presence of gays in their everyday lives is increasingly perceived as “normal.” On college campuses, where gay couples are even more more common, fewer students are expressing the idea that their gay colleagues have any negative effect on their lives. One 2004 survey found that among those aged 15 to 25 “support for equal protections for gays, seems to cross partisan, ideological, and religious lines,” (http://www.civicyouth.org/PopUps/FactSheets/Attitudes%202.25.pdf).

Even among the majority of Americans over the age of 25, attitudes towards gays and towards same-sex marriage are also softening as the passage of legislation allowing gay marriage in Massachusetts and civil unions in a number of other states has definitely exploded the conservative canard that gay marriage poses a threat to heterosexual marriage, to young people, or to civil society in general.

Gays are marrying or forming legalized unions in record numbers, and the sky has not fallen. Rather, the public participation of gay couples in our society has made it clear that most of them are not very different at all from their heterosexual counterparts.

In fact, while conservatives like Maggie Gallagher argue that her organization simply wants to defend “marriage” and “religious liberty,” she, and others like her, who oppose gay marriage, never answer the question of how gay marriage injures heterosexual married couples or in any way infringes on their religious freedoms.

Certainly, many Americans do not like the idea of gay marriage, but that is not nearly the same thing as arguing that they are personally injured by its legalization. They are no less “married” in the eyes of the state or according their religious institutions than they were before, and they continue to exercise the same rights and benefits from their marriages as they did before the California Supreme Court ruling.

It may well be that the aftermath of this California court ruling provokes a much smaller and less intense backlash against gay rights than occurred in 2000 when hundreds of gay couples said their vows in San Francisco's city hall.

We may find that with the genie out of the bottle, so to speak, Americans are less fearful of same-sex unions as they live, work, and even worship with men and women who want the same rights as everybody else, the right to live with the person you love and to make that union legal in the eyes of the state and society.

If the California court ruling stands, and the November ballot initiative to write a state constitution ban on same-sex marriage fails, it is likely, as many conservatives fear, that some states will follow suit and that it will be increasingly difficult to maintain consistent legal arguments in favor of a ban on gay marriage. But perhaps, in any case, as more Americans actually see the results of legal gay unions in their communities, the battle over gay marriage may also turn out to be much ado over nothing.