Will the California Supreme Court decision on same-sex marriage have impact beyond the issue of marriage? Much of the current debate is focused on the decision’s legalization of same-sex marriage and a November ballot initiative whose sponsors seek to reverse its effect by putting a ban on gay marriage in the state constitution.
But the future of gay marriage in California is not really in doubt. Same-sex Polling shows that those of us under 40 overwhelmingly support legalization of gay marriage; this generational view is so strong that it won’t be denied.
The unknown is whether the decision will impact other issues.
I’ve read the court’s decision three times, and it has left me with more questions than answers. The court decided the case with very broad language, extending new legal protections on the basis of sexual orientation. One imagines that the decision will be decided in other cases to expand the rights of gay people, but exactly how is hard to guess.
What’s most puzzling about the decision is that the court grounded its legalization of gay marriage not in anti-discrimination law, but in an unwritten right it identifies in the state constitution: the right to receive respect and dignity for the family you form. Here’s how the court put it:
"These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded to a union traditionally designated as marriage."
A right to respect and dignity? Perhaps that’s how the world should work, but as a legal matter, such a right would be difficult to enforce. I’m no lawyer (though my wife will tell you I enjoy practicing law without a license), but it seems likely that plaintiffs in other court cases will attempt to gain legal sanction for all kinds of family structures and personal behavior.
If opponents of gay marriage wanted to make mischief and score political points this fall, they could encourage folks to file legal claims citing the court’s decision to demand respect and dignity for family structures that wouldn’t be very popular.
However the decision is employed, bet on this: the gay marriage ruling will keep the courts busy for years to come.