Maggie Gallagher

They say we are tired of culture wars. Tell that to the California Supreme Court, which didn't sound tired at all when it lobbed a big, fat hand grenade into the marriage debate.

Ideas have consequences. And the California court endorsed two big, brand-new, very bad ideas.

The first idea is that the internationally recognized human right to marry includes same-sex marriage. In U.S. constitutional law, fundamental human rights are those deeply rooted in our traditions. Not even in Massachussetts or in New Jersey could the courts quite stomach the idea that same-sex marriage is deeply rooted in those traditions.

Not even the European Court of Human Rights or the United Nations Human Rights Committee has so ruled. In 2003, the European Court of Justice ruled, "Article 12 of the European Convention on Human Rights protects only traditional marriage between two persons of opposite biological sex." (For excerpts from these and other marriage cases see "Is Marriage Discriminatory?" at

So in rooting around for precedents, the California court had liberal recourse to our neighbor to the north, Canada. Like Canadian courts, the California court grounded same-sex marriage in a larger human right to form families of choice and to have the government sanction all family forms as having equal dignity. Polygamy anyone?

Moreover, Canada is the country that ought to be voted "Most Happy to Persecute in the Name of Tolerance." Just last week the Orwellian "Human Rights" Tribunal of Ontario ruled that Christian Horizons, a charity that runs homes for developmentally disabled adults, engaged in illegal discrimination when it tried to ensure that its employees were practicing Christians who accepted Christian sexual teaching on adultery, fornication and homosexual sex. Worse than the $23,000 fine is a government edict that the organization submit to a re-education plan to change the group's attitudes.

So the second big idea endorsed by the California court is even less promising: Sexual orientation should be treated just like race under the California equal protection amendment, subject to "strict scrutiny." This is another historic first for a U.S. court.

Maggie Gallagher

Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.