I had three reactions after skimming through the opinion of the California Supreme Court that legalized gay marriage.
1. For cultural conservatives, the courts are not a friendly arena for the consideration of moral issues. The justices in California were looking at state law and the state constitution, not at what might be better for the moral health of the citizens. Law is all about determining the consequences of a comma or a period, or defining the word "is." Lawyers and judges have simply removed themselves from considering moral consequences.
2. The opinion strikes me as being pretty flimsy. It was 4-3 and the majority justices seemed almost apologetic at times. Their reliance on the lack of compelling constitutional arguments against gay marriage is not strengthened by the fact that there aren't any compelling constitutional arguments in favor of gay marriage, either. These cases have a way of coming back to the courts, so a different result at some point in the future -- though probably not near future -- would not be too surprising.
3. Same-sex couples will likely want to tie the knot before November, when voters will consider a ballot initiative that would amend the state constitution that the justices relied upon. If the ruling is indeed flimsy after further review, then this new initiative could pass just as strongly as did the now overturned Proposition 22, which was approved by about 61 percent of the voters.
Indeed, while the LGBT community was celebrating the ruling Thursday, their's could be a pyrrhic victory. The justices accepted their best and perhaps final argument, which was basically something like "why not?" If they're trumped in November, there might not be much to fall back on.
The best hope for gay marriage advocates might be to sit and watch the traditional values crowd self-destruct. My perception is that the feelings of California residents toward same-sex couples has softened since Prop. 22 passed eight years ago. Most folks are willing to accept civil unions that include the same financial and legal benefits that male-female marriages enjoy. The best argument employed by the anti-gay marriage activists is that it contributes to the breakdown of the nuclear family, that being that men and women were created to unify and produce and rear children to propagate the species. They can point to welfare policies that destroyed once-strong African-American families, the demise of powerful Hispanic families because of immigration and the overall damaging impacts of drug abuse and divorce for families of all backgrounds. But gay marriage is such a small part of the equation I wonder what sort of practical effect the argument would have in 2008.
If gay marriage opponents overplay their hand, they could find some resistance. This is the same state, after all, where voters allowed teenage girls to seek abortions without parental consent and approved of the medical use of marijuana.
Whether the same-sex marriage victories sweep through the other 48 states -- such rights are already available in Massachusetts -- is debatable. In fact, I would rather doubt it. If the vote was stronger than 4-3 and the justification better, then maybe you'd see something. Otherwise, outside of, say, Vermont and Hawaii, don't look for same-sex marriage rights to spread.
