Ending the gay-marriage war

California's ruling may point toward 'marriage unions' as a solution.

By Jeff Amestoy

from the May 22, 2008 edition

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waterbury, vt. - If state supreme court decisions were measured on a constitutional Richter scale, then California has just had "the big one."

The same-sex marriage opinion of the Supreme Court of California is extraordinary in its scope and length – 172 pages including the concurring and dissenting opinions of the 4-to-3 decision. Writing for the majority, Chief Justice Ronald George persuasively articulates the powerful constitutional arguments for same-sex marriage equality.

The counterargument – that recognition of same-sex marriages is a decision for the legislature – is succinctly advanced by dissenting Justice Marvin Baxter. One could not find a better primer on the constitutional issues inherent in the gay marriage debate.

The court's decision may be most significant, however, in its attempt to minimize the "aftershock." The majority acknowledged – as a state constitutional court must – that the ultimate decisionmakers in matters of constitutional law are "the people themselves."

There has been no more dramatic demonstration of this constitutional truism than the public reaction to state court decisions recognizing same-sex marriage equality. From state constitutional amendments in Hawaii and Alaska that essentially nullified judicial recognition of the legitimacy of gay marriage claims, to the passage of state constitutional amendments in more than two dozen states that prohibit courts from even considering such claims, to the more than 1 million signatures already gathered in California to enable citizens to abrogate the Court's decision by ballot in November, voters have made clear that the court's word is not the final word.

The California Supreme Court's decision is remarkable in its attentiveness to the dynamics of state constitutionalism. It comes as no surprise that Chief Justice George, the experienced and highly regarded leader of the largest judicial system in the United States, has thought carefully about how to avoid the enormously detrimental consequences of a continuous culture war over gay marriage.

The key to George's approach lies in the way he frames the issue. The chief justice notes that the California legislature has already provided same-sex couples with access to all the rights and benefits of marriage. This, he explains, distinguishes the question before the court from the one addressed by the Vermont and Massachusetts Supreme Courts, which decided whether same-sex couples ought to have the rights and benefits of marriage.

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