California Rules!

A Defeat for Right-Wing Activism On and Off the Bench

BY Hans Johnson

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Refusing to be boxed in by election-year timidity or political threats from the religious right, a majority of the California Supreme Court ruled May 15 that same-sex couples have an equal right to civil marriage in the state. The judgment stands on a sturdy foundation of precedents involving equal protection of the law. Its reasoning and force rebut a far-right charge that has cowed other courts despite being perfectly backward.

In a ruling that the state will not appeal, California’s highest court ordered officials to begin granting marriage licenses to same-sex couples June 15. The clarity of the ruling is a reminder that people outside the ranks of a social movement can sometimes best articulate its progress.

“In contrast to earlier times,” wrote Chief Justice Ronald George, “our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation.”

Sixty years ago, against a steep and contrary bent of public opinion, the same court upheld the right of a Mexican American woman, Andrea Perez, to marry her African-American sweetheart, Sylvester Davis, in Los Angeles. It took two decades for the U.S. Supreme Court to finally follow California’s lead and nix all such bans on interracial marriages.

In the current marriage case, Carlos Moreno, the court’s sole Latino justice, and two others joined the ruling by George, an appointee of former Republican governor Pete Wilson. George became the court’s chief justice the very month (May 1996) that fellow Californian Anthony Kennedy, a Reagan appointee to the U.S. Supreme Court, confounded religious conservatives by striking down an antigay amendment to the Colorado constitution. The measure aimed to obliterate and forever outlaw any protection in any area of life against antigay bias, no matter how severe. Kennedy countered with simple declarative grace that even a majority of voters cannot make gay people “strangers to the law.”

Seven years later, in 2003, Kennedy infuriated the far right again with his ruling against a Texas sodomy statute so prone to abuse that police could wield it to barge into homes and bedrooms and arrest unsuspecting adults. Today, at its fifth anniversary, the Lawrence standard nullifying all state sodomy laws and extending privacy continues to gain traction in politics and case law in part because of its author’s conservative credentials.

Even the farthest right-wing fringe refrains from demonizing Kennedy due to his status as a swing vote on the Supreme Court. Instead, like prison wardens mocked by defiance of a noncompliant inmate, they direct their rage at justice David Souter, the moderate appointee of Bush 41, and the aged but unflagging jurist John Paul Stevens, a Ford appointee whose demise some on the right actually pray for.

George, in California, like Kennedy before him, held forth with a boldness informed by such extremism and determined to limit its tyranny. Similar to Kennedy, he struck down the specific provisions before him in a holding that transcends discrimination in the marriage cases. He wrote: “An individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.”

The court applied an age-old insight to efforts by antigay leaders to infringe on the rights and freedoms of a minority group through a referendum, like the one restricting marriage rights approved by California voters in March 2000. Hostility and hype aimed at barring a group of people from accessing a right they seek recalls a line from Shakespeare: You really do protest too much, the court, in essence, ruled.

But seek marriage gay couples have. “We waited more than 50 years for the opportunity to marry,” said Phyllis Lyon, 83, a San Franciscan who, along with her partner of 56 years, was a plaintiff in the California case. “We are thrilled this day has finally come.”

Attentive to the human stakes of the case, the majority spurned calls for caution or dereliction of duty that have diverted other courts. The only other state high court to weigh in favorably on equal marriage rights for same-sex couples is Massachusetts’. In the wake of that ruling, in November 2003, right-wing strategists intent on using the issue as an electoral wedge honed the charge of “judicial activism.” Taking up gay-rights cases and this accusation like a weapon, they have hijacked legislative debate and hoodwinked the press. The rhetorical ploy has even worked in jurisprudence, in how judges speak to themselves.

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Hans Johnson, a contributing editor of In These Times, is president of Progressive Victory, based in Los Angeles and Washington, D.C. He is a columnist and commentator on labor, religion and trends in state and national politics.

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