Gay marriage advocates win battle, but will lose war
California has now become the second state — after Massachusetts — to recognize same-sex marriage. But the decision, which has come as an activist edict from a divided California Supreme Court rather than from the consensus of a democratically elected legislature, does nothing to bring this long simmering controversy any closer to a lasting resolution. That’s because the only real battlefield that matters for those advocating the recognition of same-sex marriages is not to be found in a paneled courtroom, but in the far more consequential court of public opinion. Despite the 4-3 ruling, which revealed a deep division of opinion, even among members of the California Supreme Court, the decision has been widely hailed in the national media as a big win for same-sex couples. Yet, in many ways this narrow victory — like the previous 4-3 decision of the Massachusetts high court — is a pyrrhic one. It serves to emphasize the extent of the gulf between an overreaching judiciary and the rest of society. Like most political issues, the argument over same-sex marriage is a contest of values. After all, if people’s core beliefs and values were not at issue here, there would be no controversy. In recognizing the legal right of homosexuals to marry, a bare majority of the California Supreme Court has essentially elevated one value — that of minority rights — over the common cultural values of society at large. Advocates argue that same-sex marriage is akin to the civil rights movement of the 1950s and 1960s that fundamentally changed the lives of black Americans. The analogy is certainly an alluring one, but fundamentally flawed in many ways. Homosexuals are not being denied voting rights, access to employment, or shelter, or food in a public eatery — issues at the heart of blacks’ epic struggle for basic human dignity. The civil rights movement was, at base, a challenge to rededicate ourselves to a common set of core values. By contrast, homosexuals are engaged in a campaign to substitute one value for another. They are not the first group to try to impose their values on others — such attempts are made all the time — but their prospects of succeeding are not promising. The California Supreme Court’s decision notwithstanding, a ban on same-sex unions doesn’t violate the Equal Protection Clause of the Fourteenth Amendment for the very good reason that such a ban applies equally to men and to women. America remains an exceptionally tolerant society, but there are no public opinion polls showing majority support for same-sex marriage. That’s because tolerance isn’t the same thing as approval. It is an oversight in the law — and an overzealous court — which has provided this latest win in California. The vast majority of the American people don’t want to extend the term “marriage” to same-sex unions. If sufficiently annoyed — or alarmed — by this latest California high court decision, the general public could well demand that the U.S. Constitution be specifically amended to reflect that belief. Indeed, 43 states have statutes restricting marriage to two persons of the opposite sex, including some of those that have created legal recognition for same-sex unions under a name other than “marriage.” A handful of other states ban any legal recognition of same-sex unions that would be the legal equivalent of civil marriage. Even in California — a state well known for its liberal leanings — a constitutional amendment banning gay marriage is likely to be featured on this fall’s election ballot. Earlier this year, supporters of that initiative sent more than one million signatures to the Secretary of State — only 700,000 signatures were required. And, if recent history is any guide, the chances of the amendment passing should have same-sex marriage advocates there worried: In 2000, 61 percent of Californians voted for a measure that prohibited same-sex marriage — the same law a divided California Supreme Court just overturned. As California’s Supreme Court decision demonstrates, advocates of same-sex marriage may win a battle here and there before a few liberal justices, but absent a sudden sea-change in American attitudes, they appear to be on the losing side of a larger cultural war.