Thursday, August 5, 2010

Prop 8 Goes Down (For Now)

I am as happy as anyone that a federal district court judge has overturned proposition 8, the 2008 California referendum that banned same sex marriage in the state. Like most people of my generation, I am in favor of marriage rights for gays and opposed the law on the merits, but I also found the legal reasoning behind it deeply offensive, depending as it did on the troublesome notions that legal rights are privileges conferred according to the whim of the government rather than legally unassailable constitutional guarantees and that it is legitimate for legal institutions like marriage to discriminate against a minority on the basis of arbitrary characteristics like sexual orientation. I agree almost entirely with Judge Walker's argument in striking the law down, and view it not just as a victory for advocates for gay marriage but those who oppose granting the state the power to discriminate against certain citizens as well.

But though this decision is a step in the right direction, it's far from the final legal word on the subject - the case is almost certainly bound for the U.S. Supreme Court, where it is quite possible it could be reversed. In the meantime, debate on the underlying issue will rage on. Allahpundit of HotAir, one of the few mainstream conservative commentators who openly favors gay marriage, is concerned about a popular backlash against Walker's ruling:

That said, while it's no secret that I support gay marriage too, I think they've
made a needless mistake in pushing this in the courts instead of doing it
legislatively state-by-state. The optics are uniquely bad - a federal
judge imperiously tossing out a public referendum enacted by citizens of one of
the bluest states in America on the shoulders of a multi-racial coalition.
If the goal of gay-rights activists is to make same-sex marriage palatable to
the public, then embittering opponents by torpedoing a hard-fought democratic
victory seems like ... an odd way to go about it.
Color me unconvinced. As Allahpundit himself acknowledges, the anti-marriage types are doomed to lose this argument eventually. The coalition that voted to ban gay marriage in California is going to shrink, not grow, because the demographics that chiefly compose it - namely older people and Christian conservatives - are declining as an overall percentage of the electorate. The idea has been slowly but steadily gaining acceptance ever since the Massachusetts Supreme Court's landmark 2004 ruling requiring that state to extend marriage rights to same-sex couples. Proposition 8 barely passed in 2008 despite massive and expensive campaigns against it on the part of conservative activist groups and both the Catholic and Mormon churches, and that margin shrinks every time an elderly "yea" voter dies and is replaced in the electorate by his or her pro-gay marriage millenial grandchild. Opponents of gay marriage may not like this ruling, but before too long, it's not going to matter - they'll no longer have the means to ban it, democratically or otherwise. Politically, they'll become an electorally insignificant rump movement, and eventually, they'll be culturally marginalized as well, and someday be viewed as reactionary bigots the same way people who oppose interracial marriage are today. Bitter or not, they won't matter - they will become, to paraphrase the popular liberal analogy, stragglers fighting a hopeless rearguard action against the inexorable advance of history. And at that point, if not long before, the controversial manner in which the question was decided will be forgotten.

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