California matters

By DAVID S. BERNSTEIN  |  May 21, 2008

Those writers and pundits are still fighting the last war, politically speaking. Carefully placed gay-marriage-ban initiatives did help Republicans in 2004, but that was in another political lifetime.

In fact, the dynamic in California is more likely to work in reverse: the enthusiasm for the 2008 election among Democrats — and particularly young adults, who are most supportive of gay rights — will probably drive turnout to the disadvantage of those seeking the constitutional ban.

A poll taken this past year in that state found 45 percent in favor of same-sex marriage and 49 percent opposed. But that doesn’t necessarily say how many of those who personally disapprove of gay marriage would support a ban.

It seems likely that we will finally see, at least in California, the voters rejecting polarization in favor of a middle-ground consensus. After all, mainstream Americans ultimately rejected the full-throated cries of the abortion debate, voicing their disapproval of abortion in most or all situations but objecting to making it illegal or unavailable. They may likewise be ready to say that their personal homophobia is insufficient grounds for governmental prohibition.

That mindset will be made easier by the facts on the ground in California, where thousands of same-sex couples will have tied the knot with the state’s blessing by the time of the November vote. Pollsters and political academics will tell you that voters are usually apt to keep things how they are.

Close, not good enough
Governor Arnold Schwarzenegger has said that he will not support the November initiative, making it all the more unlikely that it will pass. Another Republican, Mayor Jerry Sanders of ultra-Republican San Diego, has gone through a very public conversion from anti– to pro–gay marriage. A majority of state legislators are already on record — twice — voting to allow gay marriage.

That progressive attitude has been sorely missing from our national political leaders. President George W. Bush and his would-be successor, McCain, both spoke out against the California ruling. No surprises there. Sadly, both remaining Democratic Party nomination contenders did the same, albeit in less stark terms.

This could have been a moment for Senators Obama and Clinton to finally shed their safe, calculated opposition to gay marriage. Neither did; they both issued statements reiterating their support for civil unions, and for maintaining marriage as a purely heterosexual construct.

Obama and Clinton — with world-class legal educations from Harvard Law School and Yale Law School, respectively — should be made to explain how and why they disagree with those judges, who laid out a careful, and bold, line of reasoning against the exact position Obama and Clinton espouse.

Unlike other courts that have dealt with this issue, including Massachusetts’s, the California justices ruled unequivocally that their state’s equal-protection guarantee extends to discrimination on the basis of sexual orientation. The practical effect was to trigger the “strict scrutiny” standard, under which it is easy to find the restriction of marriage unconstitutional.

That finding, however, applies well beyond marriage. The ruling on the equal-protection clause will open the way to a new day of gay rights in California — which means, inevitably, elsewhere in the country.

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