EDITORIAL It's hard to take the California Courts of Appeal decision on same-sex marriage seriously. It reads like some sort of joke, the product of a bad old mind-set that this country put behind it almost 40 years ago when the US Supreme Court struck down bans on interracial marriage. It's worse though: the court, by a 2–1 decision, seems to imply that gay and lesbian people don't have the same fundamental legal rights as everyone else, that discrimination against them doesn't need to be viewed with strict legal scrutiny.
Hiding behind the absurd notion that the court would be usurping the role of the legislature by finding that it's unconstitutional to outlaw same-sex marriage, Justices William R. McGuiness and Joanne C. Parrilli overturned a landmark ruling by San Francisco Superior Court Judge Richard Kramer and set the stage for what has to be a full debate before the state Supreme Court.
On many, many levels, this is the defining civil rights issue of our era — and the state's highest court must agree to take the case and overturn this embarrassingly misguided decision.
The court goes out of its way to try to sound sympathetic to gay and lesbian couples, acknowledging in its ruling that social standards are changing and that "gay and lesbian couples can — and do — form committed, lasting relationships that compare favorably with any traditional marriage." But the two judges in the majority argue that the state legislature hasn't legalized same-sex marriage, so there's nothing the courts can do.
That, of course, is nonsense and flies in the face of centuries of American legal jurisprudence (and most recently, of the well-reasoned decision by Judge Kramer). The Virginia legislature had explicitly refused to legalize marriage between people of different races when the Loving case came before the US Supreme Court in 1967; the court ruled, quite properly, that the so-called antimiscegenation laws by their very nature deprived people of a fundamental constitutional right. The right to an abortion was never established by Congress; the Supreme Court ruled in 1973 that the constitutional right to privacy protected the right of a woman to terminate her pregnancy. The list goes on and on: when courts find that state and federal legislators have acted in a way that undermines basic legal rights, they often wind up enshrining in law rules that were never put to a majority vote.
Besides, let's remember: the state legislature did take up this issue and passed a bill — which the governor vetoed, saying he was leaving the issue to the courts.
Justice J. Anthony Kline, the lone dissenting voice, put it very nicely: "To say that the inalienable right to marry the person of one's choice is not a fundamental constitutional right, and may therefore be restricted by the state without a showing of compelling need, is a terrible backward step.... Ignoring the qualities attached to marriage by the Supreme Court, and defining it instead by who it excludes, demeans the institution of marriage and diminishes the humanity of the gay men and lesbians who wish to marry a loved one of their choice."
San Francisco City Attorney Dennis Herrera will, of course, appeal this decision to the state Supreme Court, where everyone has assumed it was heading anyway. But there's a danger here: the high court could duck the entire issue, more or less, by simply declining to hear the case and letting the appeals court decision stand. That would be a tragedy. Everyone involved on all sides agrees that this is a huge issue, both legally and politically, and two appellate judges on a sharply divided three-judge panel simply can't be allowed to hold the last word.
We urge the Supreme Court to take the case. So should every Democratic (and decent-minded Republican) politician running for office this fall, starting with Jerry Brown, the leading candidate for attorney general.
The ultimate outcome of the debate over same-sex marriage isn't in doubt.