A Fleeting Moment of Democracy for California’s Same-Sex Couples

I have learned as both a pastor and also as a member belonging to several minority groups – African American, women and lesbian – that a popular opinion on an issue does not always reflect the right choice. Too often the right choice and the moral high ground on an issue derive from a small struggling group trying both to be seen and heard among the cacophony of dissenting voices and opposing votes. And it is with this group we see democracy’s tenacity working, where those relegated to the fringes of society can begin to sample what those in society take for granted as their inalienable right.

Last week we saw democracy work. In a 4-to-3 decision, the California Supreme Court ruled that a “separate and unequal” system of domestic partnership for same-sex couples is not only blatantly discriminatory but it is also unconstitutional.

“In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights,” the Court wrote.

But the knot is not completely tied for California’s same-sex couples.

A conservative backlash in California has already begun with opponents gathering signatures to place on the November ballot, a referendum defining marriage as between a man and a woman.

But California won’t be alone it is efforts. Florida will vote on a constitutional amendment in November, and, Arizona, presidential hopeful John McCain’s state, is considering doing the same. Twenty-seven states already have constitutional amendments prohibiting same-sex marriage, defining marriage as a union between a man and a woman.

But with heterosexual marriage being so sacred, conservatives fail to see how it is constantly desecrated on any given weeknight by being slotted for family entertainment – television shows like “The Bachelor” that cavalierly join people together for high Nielsen ratings.

Also when society narrowly defines marriage as the union between a man and a woman, it is not only policing the sexual behaviors of lesbian and gay people, but society is also policing the sexual behaviors of heterosexuals. Handcuffing marriage to a heterosexual paradigm merely chokes its possibility of ever flourishing and lasting, especially as we are coming to understand the fluidity of not only gender and sexual identities but also of the constant changing configuration of family units.

In the Court’s need to deal fairly with same-sex couples given the widespread public sentiment against same-sex marriage did it ignore the will of the people?

For Tony Perkins of Family Research Council the court unquestionably did.

On the day of the Court decision Perkins sent out his FRC Action Update news alert titled “California Marriage Law: 4,618,673 to Four” stating, “ After a brief period of judicial restraint, California voters watched in horror this afternoon as judicial activism returned with a vengeance in one of the most egregious rulings in American jurisprudence. It took just four activist judges to overturn the historical definition of marriage, not to mention the vote of more than four and a half million Californians, as the state supreme court issued a much-anticipated ruling on the question of same-sex “marriage.”

But the California Court’s decision can be read two ways.

The Court upheld the democratic process by offering same-sex couples marriage and not “marriage-lite ” with civil unions. Or, the Court overstepped its authority, imposing its will on an issue the country, let alone the state of California, is not ready for.

We were told here that if the state of Massachusetts legalized such an ungodly act as same-sex marriage not only would it bring about the death the institution of marriage, but it would also bring about the demise of civilization.

Many also said the righteous hand of God would be in that defining moment to stop same-sex marriage with ugly protests, with town clerks engaging in civil disobedience by refusing to issue licenses, and with just those last minute unavoidable and inexplicable legal snafus.

But none of that happened.

And guess what? The sky didn’t fall either!

The ugly rhetoric against same-sex marriage is all too familiar to this country’s legal battle against miscegenation. And here are the four arguments used: