Tuesday, May 20, 2008

California Supreme Court did the Right Thing and Took the Right Road

Today's Washington Post featured a column by E.J.Dionne, Jr. entitled Two Roads to Gay Marriage, wondering whether the right thing was done the wrong way.

Here was my answer: As with the dissents in California and the majority in New York, EJ Dionne is taking the road more traveled in his "Two Roads to Gay Marriage". First, constitutional law is above all about protecting minorities from dominant majorities. Which means to weigh the harm to the minority against the possible injury to the majority.

Second, judicial leadership is just as important as "democratic" leadership, and because operating more often in the realm of facts, logic and law, has a better chance of being more farsighted than voter leadership, be it from electors or elected representatives.

Third, as has become a popular phrase, the arc of history tends toward justice: we will eventually get there; the question is not whether, but when. This case presented a prefect moment in history for the largest state in the union with a conservative bench, to see through the obfuscations and prevarications of the majority, intent as it is to cling to its privileges.

Fourth, the heterosexual majority suffers no harm. As the Court majority in California pointed out, allowing gay men and lesbians to marry takes nothing away from heterosexual marriage. It simply adds the dignity of marriage to those for whom that fundamentally social status has been denied. And that is what the California court focused on as its central premise. Under California domestic partnership laws, same sex couples already enjoy virtually all of the state level rights of marriage of opposite sex couples, but they lacked the basic equality of having their relationships honored in the same way, to the same degree, as opposite sex couples do. And, importantly, their children will not be second class children of a "domestic partnership" or "civil union."

Nattering on about whether the practical effect will speed or slow social progress misses the importance of leadership. The road more traveled is by definition more congested and slower.