Steve Chapman makes a strong case that the California court may have tried too much. I certainly see the point, and I sympathize with its core argument with respect to judicial restraint. I worried about this myself and would be lying if I did not confess to some mixed feelings. At the same time, I can also see how exactly this argument could have been used against the Perez v Sharp decision sixty years ago – when the same court struck down miscegenation bans far more popular than the current ban on same-sex marriage.
It will be argued that that ruling was based on racial discrimination which has a clear jurisprudential lineage. Applying strict scrutiny to sexual orientation has no such legal precedence. And yet it is also true that sexual orientation is as ineradicable as gender (arguably more so) and as central to personal identity as religion. If those two categories enjoy constitutional protection, why not sexual orientation? That’s why Judge George’s personal understanding of gay people is relevant. And why the case is powerful.
I stand conflicted here: my head is with restraint; my heart and my head are with equality. But now the decision is made, it seems clear to me that those of us who support marriage equality need to ensure it gains the democratic legitimacy it deserves. By making, as we have for two decades, arguments that can persuade and testimony that can explain. We have work to do – and every gay Californian needs to find one straight person a day to explain why this issue matters so much.
The Dish 