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100805 Latest Step in Unending Same-Sex Marriage Debate

Latest Step in Unending Same-Sex Marriage Debate

8/5/10

 

As a supporter of same-sex marriage, for me yesterday’s federal District Court ruling that Proposition 8 is unconstitutional was a reminder of the tremendous anticipation and joy that committed gay and lesbian couples feel from the hope that their relationships will eventually receive full recognition. Those who cheered in the streets did so on behalf of their partners and children, and I wish that someday they will find peace and full social acceptance.

 

However, it was also a reminder of the legal mess that has arisen from this issue. I continue to believe that California was right back in March, 2000 when it handled the definition of civil marriage through passage of a garden-variety statute. That process was simple, democratic, and enjoyed a sense of legitimacy. It also retained our ability to reverse or amend it in the future, adjusting for new cultural beliefs and norms.

 

Unfortunately, instead of accepting that as the process for resolving same-sex marriage, some insisted on a much more unstable road and a decade of legal chaos. The noble goal of recognizing the commitments of same-sex couples has become a procedural circus, full of long legal detours that have included one county’s anarchic violation of state law and a legal battle over the State Constitution’s obscure revision rules that really had nothing to do with same-sex rights. Yesterday’s spillage of all this into federal courts only broadens the problem.

 

The situation just reinforces the fact that, unlike the commitment that underlies marriage, civil marriage itself is not a compact between two people but a compact between those two people and society at large. No matter what courts do, society will need to embrace these relationships if these marriages are to become truly accepted. The fact that a solitary judge yesterday expressed a view on the matter is neither a substitute nor a catalyst for that. An electoral win for same-sex marriage is still needed to cement its legitimacy, and yesterday accomplished nothing in that regard.

 

The decision even makes things worse by now forcing years of federal appellate litigation. At very least, federal courts should now stay this ruling for the litigation’s duration. One of the most undignified elements of this whole process has been that same-sex couples’ access to marriage licenses has recently fluctuated, on average, almost annually, and that instability could now spread to other states once the Circuit Court begins its processes. Telling people that they can be married but potentially just for several months is strange and disrespectful of both same and opposite sex couples. Further, if yesterday’s ruling is struck down (which may well happen) and if the injunction does not continue, we may see additional years of litigation just over retroactivity, another tangential question that has no bearing on the real issue.

 

As these new chapters of process and procedure unfold, we will see what happens. However, we must remember that this will ultimately be decided not in a court but in our hearts. We should yearn for the seemingly long ago days of 2000 when we actually had a way to do that.

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