Debra J. Saunders

Equal? That's odd. The anti-8 complaint refers to domestic partnership as a "separate-but-unequal" institution that brings "irreparable harm" on the two plaintiff same-sex couples.

Was Badgett a hater who wanted to hurt gay people in 2006? Did she want to treat the two couples as, to quote the complaint, "second-class citizens?" When Lisa Sanders told her father he could oppose same-sex marriage, was she intent on "stigmatizing gays and lesbians"?

Of course not. Domestic partnerships exist to recognize and provide legal protections for committed gay and lesbian couples. But after Mayor Gavin Newsom decided to flout marriage law and open up City Hall to same-sex marriages in 2004, the ground shifted.

I'm happy for those same-sex couples married during San Francisco's 2004 Winter of Love, before voters passed Proposition 8. But any attempt to force same-sex marriage legalization through the courts makes it impossible to pre-empt possible unintended consequences.

My fear: that someday, some judge will recognize polygamous marriages lest a family in Berkeley feel unhappy or because anti-polygamy laws discriminate on the basis of religion. If the no-on-Proposition-8 argument prevails, why not?

Besides, after hundreds, arguably thousands, of years of Western marriage limited to heterosexual couples -- with the occasional but never-lasting recognition of polygamy -- a humble society ought to hesitate before upending a tradition that has worked. A court fiat is not how a smart society makes deliberate and informed decisions.

This lawsuit may not be about Proposition 8 alone. If Walker strikes down Proposition 8 and the U.S. Supreme Court backs him, you could see a same-sex marriage ruling as sweeping as Roe vs. Wade.

And to think that the outcome could hinge on whether the "no" side successfully establishes animus. Toward that end Thursday, anti-8 attorney David Boies succeeded in marginalizing Proposition 8 supporter Hak-Shing William Tam, by prompting Tam to admit he believes homosexuals are 12 times more likely than heterosexuals to molest children. Talking to the press later, the Yes on 8 folks tried to distance themselves from Tam, but he was one of the measure's official proponents.

Thing is: Tam does not speak for the 7 million Californians who voted for Proposition 8. Boies' colleague Ted Olson, who beat Boies in the rancorous legal battles over the 2000 Florida recount, made a strong argument for same-sex marriage in a recent Newsweek. But he did not make a strong "conservative" case, as he claimed. While many conservatives support same-sex marriage, a conservative should want to debate the possible consequences of upending family law. A good conservative doesn't push a court to impose a ruling that shreds states' rights, as well as the right of Californians to govern themselves.

Debra J. Saunders

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