Gay-marriage ban in the hands of key justices

We gay couples in California have been biding our time, waiting for public opinion to shift in our favor. We know that eventually, the state’s ban on same-sex marriage will be lifted, but many gay couples, activists, and lawyers are tired of waiting. They are pushing for change now, and they are taking a calculated risk.

By pressing the state Supreme Court to strike down the laws banning gay marriage, they are gambling that the voters who are slowly coming around to our side, will not retaliate because of a court legislated overturn. It’s not clear if the court will strike down the ban, and if they do, what the straight voter reaction will be. But one thing is certain, we will soon find out.

Last Tuesday, the seven-member court heard the case, and they appear to be closely divided. Two or three justices seemed to be in favor of overturning the ban, the same number appeared to lean towards the status quo. So it seems that the fate of same-sex marriage in California now rests in the hands of a few fence sitters.

The arguments are pretty straightforward. The gay lawyers argue that there is no difference between same-sex marriage and mixed-race marriage, and no one would dare to go back to the days of outlawing mixed-race marriages. The opposition, lawyers for a conservative Christian group fighting to preserve the status quo, argued that overturning the ban would undermine traditional marriage, and create a system that would no longer be recognizable as marriage.

It is difficult to comprehend why the legal union of two people who love one another would undermine marriages between men and women. It seems to me that the opposite is true, that the proliferation of unwed partners undermines the institution of marriage. This argument is clearly a veil that covers the true motive: straight people want to pretend that they are somehow superior to gays, so they are fighting hard to not give us equal rights under the law. It’s sad, really, the effort by some Christian groups to maintain at any cost this illusion that they are in any way superior to others. It seems to me that if Christians spent more energy adhering to the teaching of their savior, then people the world over would have equal status under the law, hunger and poverty would be wiped out completely, there would be no need for military action, and no child would go unloved. But of course, that’s not the case, because so many Christians prefer to feel superior, rather than act in a superior way.

There are some justices who seemed troubled by the idea of the court intervening in what they suggested might be an issue better decided by the electorate or the Legislature. And if they hold to that position, then the court may very well preserve the status quo.

Another possibility could be that they strike down the entire ban and force the Legislature to create new laws from scratch, which would most likely legalize same-sex marriage. It could also open up another avenue: the privatization of marriage. Marriages, after all, are simply contracts between individuals that the state has determined deserves special consideration under the law. We could best avoid the entire debate over traditional vs. gay marriage by leaving the decision of how to structure marriage to the people involved -- and leave the government out of it. That is, have the state only recognize civil unions, and not marriages, for all couples, regardless of race, religion or sexual orientation. For couples who feel the need to be “married” they can still go to the church and perform that ritual, but the state would not recognize that service. That takes the government out of the business of deciding who, and who can’t, be married, and leaves the decision to the individuals.

But that is, undoubtedly, too much to hope for.