A HUGE DAY FOR CIVIL RIGHTS

Kate Kendell. Hero.

Today's unexpected California Supreme Court decision legalizing gay marriage in In re Marriage Cases is equally magnificent and monumental.

The impact is far more than symbolic. For starters, I imagine that today will be a record day for California couples becoming formally engaged.

As I think of all my friends who move a step closer to full equality as a result of the opinion, I stand at the edge of imagining what it might have been like in 1954 to hear about Brown v. Board.

By far, the most significant paragraph of the monstrous 172 page decision is this part of the majority opinion:

A number of factors lead us to this conclusion.

First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.

Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

The second sentence above is a perfectly rational and reasonable conclusion. And yet, it almost sounds revolutionary, now that I've become accustomed to the right-wing bat-sh!t crazy talk about how committed gay couples will destroy the institution of marriage.

A few other observations on the decision:

• The importance of this opinion extends far beyond gay marriage. In deciding that the correct standard of review for sexual orientation discrimination cases is "strict scrutiny," the California Supreme Court will make it incredibly more difficult for any employer or government entity to enact any rules that deny the GLBT community any rights, fundamental or otherwise.

• Nonetheless, Chief Justice George took painstaking steps to ensure that every part of the opinion was carefully drafted to make clear the boundaries and preempt criticism. For example, he stated that no religion will be required to solemnize gay marriages. He also wrote that the Court's decision "does not affect the constitutional validity of the existing prohibitions against polygamy and [incest],” which is a sad but necessary response to the conservative cuckoos who argue that gay marriage will lead to, among other things, the legalization of sex with horses.

• My quick read of the opinion suggests that the only way this decision can be reversed is if there is a state ballot initiative amending the state constitution that says that "same-sex couples shall be denied the right to marry." The language would likely have to be more explicit than Prop. 22 in its intention to harm the LGBT community. In my opinion, such an initiative, assuming it gets on the ballot, would be rejected, albeit by a slim margin. Public opinion in California is clearly shifting toward recognizing gay marriage. Plus, there's a difference between voting for a pre-existing ban vs. voting to take away rights that gay couples will have in 30 days. Finally, even if such an initiative passes, there's a valid argument that it will still be considered invalid based on conflicting language in the state constitution.

• I'm a tad disappointed that the majority rejected the argument that the marriage laws at issue did not constitute gender discrimination. For me, if the right to marry a woman depends on whether you are a man or a woman, that is gender discrimination. But the Court rejected that as a semantic argument. Of course, none of this matters now that sexual orientation discrimination will be treated the same (in California) as race or gender discrimination.

• One of the dissents dismissed the majority's decision as "legal jujitsu." Justice Baxter, why must your insults involve Japanese arts? I resent that ethnic slur, your honor. Plus, jujitsu is kinda awesome.

• Interesting fact: three out of four of the Justices in the majority were appointed by a Republican governor.
  

I think a healthy amount of credit should go to SF Mayor Gavin Newsom, whose election I fiercely opposed when I lived in SF. I take back every bad thing I ever said about you, Mr. Mayor. You have my full respect.

Finally, to the homophobes currently in the Golden State, here's hoping you move to Nevada.

--Junichi