Posted by: Randy Allgaier | July 10, 2006

What’s Next for Gay Marriage? The New York Supreme Court Decision

So I guess that gays and lesbians haven’t been discriminated against long enough to count?  That’s my reading of  the New York Supreme Court’s majority opinion.  In his opinion, Judge Smith said that because same-sex marriage was not deeply rooted in history and tradition and that barring it did not violate fundamental rights and liberties. The majority decision argued that any comparison with anti-miscegenation laws — overturned by the United States Supreme Court in 1967 — was flawed. “Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil,” the opinion said. In contrast, the opinion said, “The idea that same-sex marriage is even possible is a relatively new one.” I didn’t realize that there was an acceptable timetable for discrimination. 

Is this a set back for gay and lesbian rights- maybe, maybe not.  From a purely ideological point of view- sure it is.  The idea that gay couples should not be offered the same rights as heterosexual couples is inherently repugnant and antithetical to the foundations of our country.  The fact that the New York Supreme Court saw fit to uphold that social inequity is a set back to the moral argument.

From a political point of view maybe this is not such a bad thing.  Over the past two decades issues of importance to gay people have slowly moved from no acceptance to toleration to broader acceptance.  Many, possibly a majority of Americans, agree about that the idea of civil unions is acceptable.  That’s a long way away from seeing gays being social pariahs.   But when the word marriage is used- there is a reaction that is visceral and one on which cultural conservatives have pounced.  But when I heard conservative pundit George Will say that he felt that some states should try it out and see what happens- I thought, “You’ve come a long way baby.” 

Maybe it isn’t a good idea for gay marriage to be shoved down the throats by the courts.  After all the Bushies and their ilk have done a great job of maligning jurists who interpret the Constitution based on current morays and realities and see it as a living and breathing document as  –dare I say it – activist judges.  Boy has that one really worked for Rove and Company.  As distasteful as it is for me to hear bloviating about activist judges who are, in my opinion acting in the way the founders intended, it is a sad fact that much of the country now sees the Judicial Branch as the evil doers and in the business of  placing their imprimatur on social issues.  Of course- I guess there are no activist judges on the right, only the left- hmmm Messrs. Justice Scalia and Justice Thomas comes to mind!

But given the fact that the Rove Rhetoric Machine has succeeded in this depiction of the Judical system- maybe it is better to see the change happen through some states’ legislatures.  In California, Assembly Member Mark Leno’s marriage bill has an excellent chance of passing the State House and landing on the Governor’s desk.  A Governor Angelides would sign it but would a 2nd term Governor Schwarzenegger sign it? 

Maybe George Will is right.  Maybe if other states see that states like Massachusetts, (maybe) California, (maybe) New Jersey and (maybe) Washington do not implode from allowing gay marriage- they will eventually turn around.  Social change that sticks happens gradually not through a revolution. 

But what is the issue about the word marriage?  This one baffles me. Marriage is defined in law as a civil union and we have a separation of church and state – so legally marriage has no religious meaning.  Why is Civil Union acceptable but Marriage isn’t?  There is no legal justification for this.  It is a semantic issue based in religion not in law.  But the Religious Right has staked their political fortunes on this issue and as any good propagandist knows- when you mix a little religion into your political rhetoric it makes really good theatre and manipulates people at their gut.  When this happens people don’t think about the issue- they REACT to it with their gut – a gut that is often hard wired to centuries of dogma.  I don’t know why anyone hasn’t raised the issue that Marriage IS Civil Union- so why not call it ALL marriage or call it ALL civil union?

While I want the ability to marry my partner of 18 years it isn’t because I think that heterosexual marriage has been such a resounding success.  It is because it is a right and it is afforded to others.  But even more importantly- young gay people will know that they are not second class and who they are is not a fact to be hidden because who they love is as important as who ANYONE loves.  Imagine gay youth who don’t all think about suicide?

So let’s give the “George Will Experiment” a whirl.  I doubt we will see the walls of gay marriage states coming down with lightening strikes from above.  After all many churches were having gay commitment ceremnoies years before gay marriage was a twinkle in the gay activist’s eye and God only knows that these churches are still alive, flourishing and have not felt His wrath. 

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