Debra J. Saunders

Four years ago in February, San Francisco City Hall was a chapel of love. Mayor Gavin Newsom had announced that -- a 2000 voter-approved initiative that limited marriage to heterosexual couples notwithstanding -- San Francisco would allow gay and lesbian couples to wed. More than 4,000 same-sex couples obtained licenses that would allow them to pronounce, "I do."

First they had to sign an application with a disclaimer that the nuptials may not be recognized elsewhere. Then there was this caveat: "No refunds."

"That makes it official," I wrote at the time. "This is a stunt."

I thought the California Supreme Court confirmed my opinion when it voided the marriages.

Thursday, however, the state Supreme Court issued a new 4-3 opinion. It is official: The stunt is now law in California -- although the federal government and 48 states will not recognize California's same-sex unions.

In the majority opinion, Chief Justice Ron George wrote that state lawmakers had conferred the same rights on same-sex unions that they have conferred on heterosexual couples. "California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples," George wrote.

Except heterosexuals can call themselves married, while homosexuals cannot.

The problem is, according to George, only the term "marriage" which confers "the understanding that this word describes a family relationship unreservedly sanctioned by the community." The fact that gays and lesbians cannot refer to themselves as married "realistically must be viewed as constituting significantly unequal treatment to same-sex couples."

So by a slim majority, the California Supreme Court changed the law.

Like many people I know, I am ambivalent.

Unlike most Californians -- 61.4 percent of voters supported the heterosexuals-only Proposition 22 in 2000 -- I voted against the measure, in solidarity with same-sex couples. So on one level, I am very happy for the many gay couples across the state who celebrated what they saw as a none-too-soon ruling to end the secondhand status of their unions.

But I have to agree with Justice Marvin Baxter's dissenting opinion that the court "does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice."

What next? Baxter wondered if in the future an "activist" court might look at this opinion and "conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified."

Baxter stipulated, "In no way do I equate same-sex unions with incestuous and polygamous relationships as a matter of social policy or social acceptance." His point is that George and company opened "the door to similar treatment of other, less deserving, claims of a right to marry."

Mayor Gavin Newsom went on CNN to chide the fogies of the world who see this decision as a threat to civilization as we know it.

Newsom is right. America will not fall into the sea and Western civilization will not collapse.

In fact, this decision changed little. California law already has ensured equal rights for gays and lesbians. All this ruling did is change a name.

In short, there was no substantive reason for the court to rule as it did. And in jumping in too soon, the judges have created a permanent opposition -- similar to the permanent opposition to abortion laws -- that would not exist if California voters had changed the law for themselves, as they eventually would have done.

Which makes the George court's decision all that much more heavy-handed.


Debra J. Saunders


 
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