Making the Case for Gay Marriage

While a strong supporter of legalized abortion, U.S. Supreme Court Justice Ruth Bader Ginsburg has long been critical of the court's 1973 Roe v. Wade decision preventing states from banning abortion. She believes the ruling prevented the nation from reaching a consensus on abortion and contributed to societal divisions which continue today.

Last month at Princeton University, she said that, in handing down Roe, the court "bit off more than it could chew." She would have preferred a more incremental decision, which "would have been an opportunity for a dialogue with the state legislators." With more input from elected state representatives, we might have moved closer to a national consensus on abortion.

As it is with abortion, so too should it be with gay marriage. The issue will continue to divide us unless we bring the people, either directly or through their elected representatives, into the process.

Social divisions on gay marriage were made manifest in the bitterness of the debate on California's Proposition 8 which amends the state constitution so that the Golden State may recognize as valid only marriages between a man and a woman. It thus overturns the California Supreme Court's decision of May 15 mandating that California recognize same-sex marriages.

On the day that decision was handed down, I wrote:

Advocates of the traditional definition of marriage have gathered enough signatures to place a referendum on this fall’s Golden State ballot which would amend the state’s constitution to ban recognition of same-sex marriage. I fear that with the court having short-circuited the legislative and initiative process, the chances of that ban passing increased today.

With the success of Proposition 8 on Tuesday (it passed with more than 52% of the popular vote), that fear has been realized.

Proposition 8 passed despite the opponents' numerous advantages. Nearly every newspaper in the state inveighed against the initiative. The language on the ballot focused on the elimination of the right of same-sex couples to marry rather than on the recognition of the traditional definition of marriage (as initiative proponents had hoped). It is a Democratic year in a Democratic state, with the Democratic Party's sample ballot (at least in Los Angeles) favoring a "no" vote on 8. And finally, many Californians have a kind of "default" reaction to ballot measures, voting "no" when they are uncertain about the proposition.