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March 06, 2008

Gay Marriage: A Loss Is a Win?

posted by Josh Goodman

It wouldn't be an election year without a debate over gay marriage. Right now, the center of attention is the California Supreme Court, where the case to overturn the state's ban on same-sex nuptials had a hearing on Tuesday.

As the Los Angeles Times described it, the justices seemed inclined to leave the prohibition in place:

During more than three hours of arguments from lawyers for and against same-sex marriages, several justices appeared to be skeptical of legalizing the unions, suggesting they see the state's domestic partnerships as marriage in all but the name.


Three of the court's seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman, one suggested that gays should prevail and the other three asked questions critical of both sides.

I've been wondering whether a defeat in the California case would really be a bad thing for the gay rights movement. A victory might be short-lived, if it drove the state's voters to ban gay marriage in the state constitution.

If the California court ruled in favor of the gay couples, the decision might reverberate in other states that are currently considering constitutional bans on gay marriage, including Iowa, Indiana and Florida. It also might serve as an effective talking point for candidates -- state or federal -- that oppose gay rights.

But, it might not.

In spite of the 2004 Massachusetts ruling that legalized gay marriage, the issue has faded into the background to some extent over the past couple of years. If a second state followed Massachusetts, it's not clear that such a move would represent an earth-shattering political event. Perhaps the impact would be bigger if the state were California and if the decision came from a court (which would probably stir more opposition than a legislative action).

Andrew Sullivan, for one, argues that gay marriage supporters should turn their focus away from the judiciary:

The great achievement of the marriage movement has been to establish that marriage equality is a legitimate and constructive social reform, to establish it securely in one state and to tell our stories across America. The speed of change has been phenomenal - far faster than many of us ever dreamed of when we embarked on this two decades ago.

And that means that our chance to win democratic and legislative victories is now much, much higher than it has ever been. We have also managed to prevent the worst from happening: a federal constitutional amendment. And so our task now is to keep making the case, keep building and strengthening our own families, keep reaching out to the next generation of more inclusive Americans. Establishing civil unions and domestic partnerships that are the equal of civil marriage is enough work for now. The society needs time to absorb this change, and to let go of its own irrational fears. Using courts to establish a precedent is one thing; using them to force social change prematurely when it is happening at its own pace anyway is foolish.

Sullivan is right when he says the chances of legislative approval of gay marriage are much higher than they've been in the past. New Jersey is very close to endorsing same-sex marriage. In New York, Gov. Eliot Spitzer and the Assembly are both supportive, so if the State Senate (where Republicans have a 32-30 edge) goes Democratic, the state will warrant watching.

Most notably, the California legislature keeps sending Gov. Arnold Schwarzenegger same-sex marriage bills, which he keeps vetoing. So, barring a surprise from the California Supreme Court, the fate of gay marriage will almost certainly be in the hands of the next governor.


Charles Gossett

As you note at the end, the California state legislature has twice passed a marriage equality bill that the Governor has vetoed. After the first veto, the Governor punted and said quite clearly that this was an issue he wanted the courts to decide. More recently, of course, he has been saying that the voters should decide the issue through a referendum. It will be interesting to see what he does if the Supreme Court says this is an issue for the legislature to decide. This, of course, is one of the "great" features of American democracy...if you don't win in one arena, you can always look for another playing field (see Schattschneider).


Knowledge is power. Marriage is a basic civil right that should be attainable by all Americans if they choose. For the truth about gay marriage check out our trailer. Produced to educate & defuse the controversy it has a way of opening closed minds & provides some sanity on the issue:


It is not quit clear to me why so many right-wing conservatives are completely against gay marriage. They are essentially trying to convince people that mutually respectful relationships are not beneficial to the couple or the society around them. In addition, Democrats that favor civil unions over marriage rights are opening the door to straight couples entering into civil unions so that they can get the benefits alloted, without actually getting married. Civil unions, then , will actually lower the overall marriage rate. Who is to stop two straight "friends" from filing for a civil union in order for work-related benefits in a state. Legalizing gay marriage would raise the overall marriage rates and civil unions would lower it. This is perhaps the goal of both political parties. Civil unions means no access to Social Security, whereas marriage does give access.

I'm a legally married gay man in Massachusetts, and because there is no federal recognition of our marriage, we will not contribute the bankruptcy of Social Security because we will not have access to the money that we pay for legally married straight couples tat tap into the Social Security Benefits of his/her spouse. Civil Unions may have nothing to do with gay rights, but rather may be a way of keeping money available in Social Security.

Leland Traiman

Federal Civil Unions=Marriage Equality; State Same-sex Marriage Does Not.
There is a myth that marriage has more rights than civil unions. That myth is born from the fact that civil unions have only been passed by states which have no power to grant the 1138 federal benefits of marriage. However, a federal civil union policy would. Senators Clinton & Obama support a federal civil unions policy. 48 million votes cast in 29 states, 32 million against same sex marriage, we lost 2 to 1. According to Jennifer SookneMizell of Marriage Equality USA, “Actually, we get more benefits in California in certain areas with domestic partnerships than the same gendered marrieds in Massachusetts get.” 45 states have laws or constitutional amendments banning same-sex marriage. The choice is clear, federal civil unions are achievable, federal same-sex marriage is not. Federal Civil Unions=Marriage Equality

Anatomically Correct

It's unfortunate that people feel the need to air their sexuality - as if to acknowledge they are now part of some sex group. Keep it to yourself - it is a private, not social, disorder!


I find this frustrating just to watch. I am a married man, married to a woman. The definition of marriage is that it is between a man, and a woman.
I don't understand how anyone is mystified by the fact that anyone else would want to stop gay marriage. Civil union is the same as, and equal to marriage, just between alternative couples. The argument that the word marriage should be redefined for equality is no different than redefining African-Americans as whites, or vice-versa. The other point that IMHO should have killed this before it started is that given the option to include polygamists along with gays, and transgendered individuals, proponents of same sex marriages staunchly stand bigoted against polygamists, and have excluded them, even agreed during the hearings that polygamists should not be given the option of marriage. The same arguments for gay marriage hold up exactly as well for polygamists, and by the arguments of this case, California will have to legalize polygamy. How far behind will NAMBLA be? California has already established children's rights.

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