The Court Could Not 'Just Say No' 

Tragedy compounded. That is what this ignoble decision of the court means for me. The people have been heard and the California Supreme Court upheld Proposition 8 in a decision that will long remind me of philosopher Alfred North Whitehead’s criticism: There is nothing worse than a pseudo-democracy presented to outsiders as the real thing. Ultimately, the court could not say “no” to a public referendum. Had it done so it would have been branded as a hotbed of activist judges, the likes of which former President Bush often derided.

However, isn’t equal protection supposed to apply to everyone? And how can a fundamental right be voted in or voted out anyway? Rights are rights. Rights are all civil rights, for all people. Go tell that to the eighteen thousand couples that tied the knot in California, many of whom have loved and lived together for years and years. Their unions will remain legal, but in a state that bans same-sex marriage, will the general public give these couples equal respect?

In 2008 the California court’s ruling on same-sex marriage was logical and clear: Equal rights cannot be achieved without equal protection under the law. The court’s true gift was to apply for the first time in the context of marriage rights the precedent of strict scrutiny of review of suspected discrimination cases (whether by race, or gender, and now sexual orientation). In other words, it ruled that lesbian and gay couples have the same right to marry and say “yes” to each other, as do straight couples. We know that the momentum for marriage rights as equal protection is growing in the United States. The Iowa Supreme Court did not apply the strict scrutiny standard in its ruling in favor of marriage rights because intermediate scrutiny by judicial review led to the discovery that equal rights are violated when same-sex couples cannot marry. Still, there may be an effort to overturn that decision. I am reminded of state courts’ and legislatures’ efforts to cling to discriminatory racial policies, including Jim Crow laws, only to be judged by history as pseudo-democracy in their mockery of the rule of law.

In 2003 Massachusetts was the first U.S. state to say “yes” to marriage rights, and Connecticut did likewise in 2008. Now Iowa, Vermont, and Maine have followed suit. New York and New Hampshire are close to taking the big step. Soon virtually all of New England will mirror Holland, Belgium, Spain, and Sweden, not to mention Canada and South Africa, which have also granted marriage rights. Of course real change in the United States will only come when President Obama leads the country to the higher road he often speaks of, by removing the Defense of Marriage Act. The act currently enables twenty-nine states to constitutionally bar marriage rights to same-sex couples.

California is on the radar screen now and its day in the public market place of democracy will come soon, probably in the next election. Let us hope that the state’s marriage rights movement creates a broad and strong message of inclusion and appeal to all citizens to persuade the electorate to endorse equal rights. Let us also remember that society is a social contract that reflects our most cherished ideals. Cherished ideals, such as equality. Until voters say “yes” to marriage for all, equality cannot truly be achieved.

Gilbert Herdt, a cultural anthropologist, is a professor of sexuality studies and anthropology. Dr. Herdt is also the director of the National Sexuality Resource Center. He has written about sexual cultures, and sexual and gender identity development cross-culturally and in the United States.