No more 4-3 marriage decisions

By David Benkof

So far, 4-3 decisions have marked the implementation of same-sex marriage in all three of the states (Massachusetts, California, and Connecticut) to have done so (although California's voters reversed that state's high court decision). Such split decisions do not bode well for our democracy.

A key turning point for Proposition 8, which was once well behind in the polls in liberal California, was a television commercial featuring leading gay-marriage proponent and San Francisco mayor Gavin Newsom declaring that gay marriage will happen "whether you like it or not." Well, Americans have a funny way of deciding on their own whether something will happen if they don't like it.

Gays and lesbians often compare the state court decisions favoring same-sex marriage to the 1967 Loving v. Virginia decision allowing interracial marriage in every state and especially the 1954 Brown v. Board of Education decision declaring that segregated schools were inherently unequal. But there's a key difference between those civil rights cases and today's gay-marriage decisions. The civil rights cases were both unanimous, and thus carried a legitimacy that, while some still resisted, eventually held sway throughout the United States.

By contrast, all the gay marriage decisions have been 4-3, with stinging dissents from the justices who disagreed. Earl Warren, the chief justice of the United States Supreme Court when the civil rights cases were decided, would not have approved. In the two decisions cited above, he pushed for the court to be unanimous, and was willing to wait to rule until the court could speak with one voice on the outcome. It's a much smoother way to go about achieving social change.

But aren't gays and lesbians desperate and thus willing to accept split decisions if that's what it takes? First, we've already seen the split decision in the nation's largest state overturned. If gay-marriage decisions are overturned, that does little good to the gay community.

More importantly, gays and lesbians in states like California aren't desperate for rights and benefits. Because the domestic partnership law provides all the rights and benefits that the Golden State provides married couples, the opponents of Proposition 8 spent $37 million to try to retain little more than self-esteem for gay and lesbian couples. The gay community has far more pressing needs, especially in states where same-sex couples have no rights, to be waging huge self-esteem battles. And in any event, should self-esteem really be coming from the government?

David Benkof is a freelance writer who can be reached at DavidBenkof@aol.com.