Don’t get me wrong, from a moral point of view, I wholeheartedly applaud California Supreme Court’s decision in In re MARRIAGE CASES (pdf), because equal protection has to mean something godammit!
But, despite the legal victory, I am troubled by the potential political implications of this ruling. For one, this is exactly the kind of ruling by judges that John McCain ranted against last week, and it will no doubt allow pundits on the right to fan the flames of anti-judicial sentiments. Those on the right will undoubtedly point to this case as an instance in which “activist” judges ruled by fiat, overturning a democratically chosen proposition (Prop 21), and undermining traditional family values, so on and so on, ad nauseum.
And it hardly matters that such arguments are without any merit; what matters is how this case will be spun. Now McCain has something fuel to his fire and will most likely use it against Obama during the general election campaign. The decision in this case will no doubt become a rallying point for the Right, and lest anyone forgets what happened to the Democrats in the general election in ’04, the prospect is grim: The Republicans were able to put the same sex marriage ban in many states and used it to beat the Democrats in the general election.
In other words, you can reasonably expect yet another outbreak of the Culture Wars, which I hate above all else. Right now, our country faces some incredible policy challenges, but I would bet good money that come fall, this decision will be part of the “debate.”
But on a somewhat brighter note, this decision shows the wisdom of the Founding Fathers in instituting a federal system: if you can’t get it done at one level of government, pursue another venue. Whereas traditional civil rights cases have always had more luck at the federal level, gay marriage cases have had success at the state level (first in Massachusetts, now in California).