When Proposition 8, the amendment to the California Constitution limiting marriage to a man and a woman, passed, it did so by a rather narrow margin -- 52% to 48%. Opponents to same sex marriage received tremendous financial support from religious groups, especially the Mormon Church. This amendment served as a response to an earlier California Supreme Court ruling that overturned bans on same gender marriage because they were inherently discriminatory and akin to bans on interracial marriage, which had been overturned in California by the Courts. What is interesting about California is that it's easier to amend the constitution than pass a budget, and so needing only a simple majority, the voters reversed the court ruling. That effort led to efforts to overturn the California law by taking it to federal court and arguing that this ban stands contrary to the "Equal Protection" clause of the U.S. Constitution.
Leading the challengers to the law was an interesting pair of attorneys -- two men who faced off against each other in 2000 before the Supreme Court. The issue then was the 2000 Presidential Election, a case in which the Supreme Court stepped in and ended Florida recounts and handing the election to George W. Bush, even though Al Gore had won the popular vote. Maybe you remember that. Anyway, Theodore Olson, Bush's lead attorney in that case, would go on to be Solicitor General -- the position that Elena Kagan held until receiving confirmation yesterday as our next Supreme Court Justice. Olson is a conservative, a republican, and an advocate for gay marriage! Sometime back he wrote an important op-ed piece in which he argued for a "conservative case for same sex marriage." In that piece he wrote:
When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.
So, earlier this week, arguing for the opponents to Prop. 8, his position was vindicated by the Court, when Federal Judge Vaughn Walker argued in his ruling that that tradition alone, including the presupposition that marriage fosters procreation, is not sufficient to deny rights to one segment of society that is not accorded to another.
I know that there will be much outcry about activist courts that overrule the will of the people. Remember, however, that it was the "will of the people" that banned interracial marriage. It wasn't the legislatures that overturned that discriminatory practice, but the Courts. It was the will of the people that segregated buses, lunch counters, and schools. It wasn't legislation that overturned these discriminatory practices, it was the Courts (only afterwards did the Civil Rights legislation get passed to affirm what the courts had already deemed appropriate).
More important than the initial effects of this ruling are the longer term ones. Remember that in that earlier election, the vote was rather close -- just a 4 point margin. While California is considered more liberal than most states, there large swaths of the state that are fairly conservative. In addition, the Roman Catholic Church and the Mormon Church have significant presences and they both actively backed Prop 8. In addition, while Latinos and African Americans tend to vote Democratic, they also tend to be social conservatives. Finally, while the trend in 2008 led to the amendment, recent polls suggest that the wind is at the back of those who support same gender marriage. So, what's next?
Obviously this will be appealed, and expect it to go all the way to the Supreme Court. My sense is that the Appeals Court will sustain the District Court judges ruling. What will be interesting is whether the Supreme Court chooses to hear the case. It may not choose to do so. If it does choose to rule, then the question is -- where will Anthony Kennedy take his stand? If it goes all the way and the Supreme Court rules in favor of the opponents of Prop 8, then we have a perfect storm. If Prop 8 is ruled unconstitutional then so is every other marriage ban across the nation -- including federal ones. I think that's what scares religious conservatives (and even many moderates and liberals -- remember that the President has expressed his own discomfort with gay marriage).
The cultural wind is at the backs of those who support same sex marriage. Society has become more and more accepting of gays. In addition, it is becoming increasingly clear that homosexuality is not a chosen "persuasion," but a genetically defined orientation. The judge in this case accepted as foundational the premise that this is not something that is either "chosen" or "changeable." My sense is that among those under 40, the majority is not only accepting of gays, but supportive of gay marriage. The idea that marriage is primarily designed to support procreation is no longer foundational. We marry for love and companionship, with children as a secondary element. Besides, with adoption and artificial insemination there are other avenues for creating families.
If society is moving in this direction, the religious community seems to be somewhere behind the curve. It will be a long time coming in Roman Catholic Churches, whose teaching reinforces the principle that marriage, sex, and procreation all go together (my uniformed assumption is that the Orthodox churches would be somewhere in the mix here -- at least regarding the importance of tradition). Most evangelical churches will stand back from it because they believe it is contrary to their reading of scripture. Thus, that leaves more moderate to liberal Mainline Protestant churches. We are, to this point, a mixed bag. The United Church of Christ and the Evangelical Lutheran Church have taken the most progressive positions. Disciples of Christ have left these issues to congregations -- with discussion at the "level" of the General Church essentially staying out of the conversation. What is important to note in all of this is that no church will be "forced" to marry anyone they don't wish to marry. Although clergy fill a societal role in officiating at weddings (we sign off on the licenses), we are not required to act contrary to theology or beliefs.
So, where will this lead? Only time will tell!