What the federal court decision in favor of same-sex marriage will do for gay couples and their children is heartening and welcome. What it will do for our law and politics -- well, that's a different story, and a dismal one.
If I favored a constitutional amendment banning gay marriage, I would have considered Wednesday a very good day. When a judge in California found that same-sex couples have a right to wed, he cemented the widespread notion that the courts are out of control and that the Constitution means whatever judges want it to mean. The verdict will go far to energize and expand opposition to gay rights, at a time when they were on the rise.
Let me be clear: Had I been a Californian, I would have voted against Proposition 8, which banned gay marriage. I would like all 50 states and the federal government to grant same-sex couples access to marriage. But it would be far better for that change to come from elected institutions than from the courts.
U.S. District Judge Vaughn Walker struck down Proposition 8 because it "fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license." But it's silly to believe only nut jobs and bigots could rationally oppose same-sex marriage, or that millions of Californians who accept other laws protecting gays were acting irrationally.
They might reasonably fear that in some subtle way, the legalization of gay marriage may gradually weaken the appeal of marriage among heterosexuals. They might think it will modestly increase out-of-wedlock childbearing. They might believe our understanding of the possible repercussions is so limited that we shouldn't tinker with an age-old institution in this way.
Are those concerns persuasive? Not to me. But they are plausible enough to contradict Walker's assertion that the only real justification for the ban is "the notion that opposite-sex couples are superior to same-sex couples."
Most people and judges agree that the Constitution doesn't allow the government to outlaw interracial marriage. Most would also say the Constitution does allow the government to outlaw polygamous marriage. Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?
The same arguments, after all, apply in both realms. The judge said authorizing same-sex marriage would further social goals like fostering stable relationships, protecting children and allowing adults to follow their natural sexual desires. Ditto for permitting polygamy.
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