Same-Sex Marriage in California

Andrew Koppelman at Balkinization agrees that the battle for Same-Sex marriage rights is a noble one, but he disagrees with the current methods of it’s proponents in California.

Last month, the legislature for the second time passed a bill legalizing same-sex marriage in California, and the bill was vetoed for the second time by Governor Schwarzenegger. The governor argued that the bill was inconsistent with Proposition 22, a law enacted by ballot initiative and approved by a landslide 61 to 39 percent in March 2000, which states, “Only marriage between a man and a woman is valid or recognized in California.”

Same-sex marriage proponents are now pinning their hopes on a lawsuit, now pending before the California Supreme Court, arguing that the initiative law is unconstitutional and that same-sex marriage is required by the state constitution.

He continues …

Public opinion on same-sex marriage has shifted and is continuing to do so, albeit at a glacial pace. At this point, it’s opponents of same-sex marriage who want statewide initiatives to happen sooner rather than later; proponents of same-sex marriage should want to delay those votes for as long as possible.

Yes, the status quo is bad. But it doesn’t follow that we need to act without thinking. In 1942, General George Marshall rashly wanted to invade Europe; his plan was thwarted only by Churchill’s refusal to cooperate, and D-Day did not happen until June 1944. As Max Hastings explains here, Churchill had the better of this argument; the U.S. and Britain were woefully unprepared for an invasion in 1942. The case for a 1942 D-Day would not have been strengthened by pointing out that Hitler was really, really bad, nor by pointing out the damage his occupation of Europe was going to do in the next two years. Reality is reality.

Reality is indeed reality.  But, my inner jury is still out on whether his analogy is solid.  The trouble is, MLK and others in the civil rights movement were regularly told to hold on, that “the time isn’t yet right.”  But, sooner or later, you just gotta push through and fight it.

Banning same-sex marriages is unconstitutional, and eventually, no matter how hard the conservatives push it, they’ll have to give in to the reality that the constitution doesn’t allow that kind of discrimination.

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