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 www.marriagedebate.com.)
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.
This is a ruling which, if left undisturbed, means that Protestants, Catholics, Jews and Muslims who see marriage as the union of husband and wife, and view sexual activity as best confined to marriage so defined, are in the exact position as racists under California law. In Great Britain, a similar idea recently led a court to fine an Anglican bishop $100,000 for refusing to hire an openly gay man -- as a youth minister in one of his parishes.
There are religious liberty defenses under the U.S. Constitution for youth ministers, but not for Christian schools, physicians, social workers, teachers, attorneys, psychiatrists, counselors or tax-exempt charities. The First Amendment will not protect us if our own governments (through the courts) decide that, for example, my Catholic faith is in itself a form of bigotry.
If gay rights advocates don't really mean this to happen, why don't they stop asking courts to rule in this way?
I'd love to get beyond the culture wars in this country. But so far, there are few signs that the courts, or the people who disagree with me, are content to let me.
Fortunately the people in California do not have to accept this outrageous and sweeping ruling. Working with Protect Marriage, NOMCalifornia.org (a project of the National Organization for Marriage, of which I am president) has raised $1 million this spring to get a state marriage amendment overturning this ruling on the ballot in November. The 1,122,000 signatures we have helped gather are far more than the 690,000 needed to qualify. We expect certification this June. The next step is to raise $10 million to get the message out.
In November, voters in California, like voters in Florida, will have a chance to go on record: Should four judges overrule more than 4 million Californians who voted for Proposition 22 in 2000? We will fight for marriage and we will win.
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.