California politics go nationwide: Eyes still on same-sex marriage ruling

The fallout continues from the ruling on May 15 by the California Supreme Court saying the state constitution protected everyone's fundamental "right to marry." The reaction? California politics, not surprisingly, became national. So did the coverage.

Much of the coverage since the California Supreme Court ruled that prohibiting same-sex marriage was unconstitutional has been focused on the impact the ruling might have on the nation's electoral politics, not to mention Gavin Newsom's gubernatorial prospects. The Wall Street Journal was perhaps clearest the day after the ruling in "Gay Marriage Returns."

"Just when the news was filling with stories about a Republican Party gasping for air," the editorial muses, "along comes the California Supreme Court's 4-3 decision yesterday legislating gay marriage. The GOP certainly hasn't done anything to deserve such luck."

The piece went on to say that it was "preposterous, though, to let four judges decide this for a state of more than 36 million diverse individuals." Perhaps the writer understood that democracy can sometimes be stupefying when protecting the rights of the minority or the individual is in conflict with the desires of the majority.

Conservative columnist Rob Dreher wrote on June 1 in the Dallas Morning News that he was, "Retreating to a defensible position on gay marriage." Dreher, prompted by the California ruling, offered, "Conservatives should quit lying to themselves about the culture war. It's over. We've lost."

The finer points of this conflict would be worthy of a lot more coverage these days. Yeah, it's a civics lesson, but one that citizens young and old don't seem to be picking up or recalling. Basically, the issue will almost certainly become a huge can of worms well beyond the narrower issue of who can marry whom.

Even if Californians have an opportunity in November to vote on an amendment to the state's constitution regarding same-sex marriage, the ultimate question, as US Supreme Court Associate Justice Antonin Scalia* and I understand it, is whether any ban will withstand a federal constitutional test under the 14th amendment, on which the California ruling relied. Section 1 says:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Experts argue that continuing to prohibit same-sex marriage could encourage the denial of rights to other groups or individuals. They also argue that recognizing that same-sex marriage is legal could encourage the recognition of rights that many never imagined existed. Could be exciting, no? Maybe challenge the very foundations of the nation?

Reasonable people will disagree, of course, and one of the most interesting discussions on the subject of same-sex marriage and the constitutional rights of the individual, if not the only one in the California media, was presented by the Los Angeles Times between May 19 and May 23. The debate was between Lambda Legal's Jon Davidson (supporting the court's decision) and the Alliance Defense Fund's Glen Lavy (opposing the court's ruling).

More of this kind of coverage is needed. We need to get beyond the generally narrow approach of most stories that were accompanied by photos of men kissing men and women kissing women.

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* For more, search the web for: Scalia, same-sex marriage and "rational-basis plus" or simply go to http://www.law.ucla.edu/williamsinstitute/press/argument.html.