Why the California Court's Decision Is Good for Gay Marriage

We should view the California court not as opposing gay marriage, but rather as promoting public deliberation and democratic action on the subject of equal rights.
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The California Supreme Court ruled today that Proposition 8, limiting marriage in California to "opposite-sex couples," is a valid amendment to the California State Constitution. While some commentators criticize the California Court's decision, Strauss v. Horton is actually good for gay marriage in the long term.

The Court's decision drives home that the future of gay rights lies at the ballot box and not in the courts. We should view the California Court not as opposing gay marriage, but rather as promoting public deliberation and democratic action on the subject of equal rights.

As a technical matter, the central issue in Strauss was whether the sentence "Only marriage between a man and a woman is valid or recognized in California" was a constitutional amendment or a constitutional revision. In practice, the political question presented by Strauss was whether the California Supreme Court would strike down a popularly enacted constitutional change and restore its earlier judicial decision supporting same-sex marriage.

By upholding Proposition 8, the California Court effectively tossed the ball back to the voters of the Golden State. The Court thereby ensured the long-term outcome of gay marriage: Given the strong support of younger voters, gay marriage will be approved in California by ballot initiative, perhaps quite soon. Moreover, when gay marriage is approved by popular vote, conservatives will not be able to blame a "judicial activist" court for their loss.

Gay marriage will stand on sounder footing when it is popularly enacted rather than judicially imposed. One can imagine the wedge issue Strauss could have handed the Republican Party had the Court overturned the decision of the California electorate. Instead, opponents of same sex marriage must fight it out again at the ballot box.

Supporters of gay marriage should recognize that we are reaching the limits of judicial leadership on this issue. While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964. Similarly, repeal of discriminatory measures like the Defense of Marriage Act will take legislative action. Don't Ask Don't Tell must also be retired by political, rather than judicial, means.

The popular adoption of gay marriage is on the rise. Gay marriage has been adopted by legislative action in Vermont and Maine. New Hampshire's same sex marriage bill has passed the state legislature, and Governor Paterson's bill has cleared the New York Assembly. There is already a plan to put a pro-gay marriage amendment on the California ballot in 2010.

With solid Democratic majorities in both houses of Congress and a Democratic President, now is the time to begin enacting a progressive political agenda through the ballot box. We must recognize that we are reaching the limits of judicial leadership, and that We the People must now take charge. The Court's decision in Strauss is a clarion call for political action.

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