This is where constitutional amendments come from

I was worried this would happen. A California court has declared that the state's law defining marriage as a union between one man and one woman is unconstitutional. I'm not anti-gay (I'm an Episcopalian, for goodness sakes, we have gay Bishops!) but I have a sense this is not going to help things at all. The general population is clearly not ready to declare a same-sex marriage the full equivalent of a traditional marriage. The time may come when the people are ready to say that, but this move is likely to push things too fast for the public and when pushed, Californians have a history of taking things into their own hands. California has amended its constitution over 500 times since 1879, and will likely do so again this fall in a special election. You can expect that a constitutional definition of marriage will be appearing before the voters shortly, if not in 2005 then 2006. That's a shame. It's likely to pass, and give impetus to similar amendments elsewhere, a genuine setback for those championing gay marriage rights. Unfortunately for them, they have allowed (or encouraged) the courts to take control of the issue, and that submerges their issue into the much longer-running battle between voters and the courts in California. They have jumped aboard the wrong bandwagon.

Many items that would be handled as statutory law in other states are constitutional issues here. For generations, Californians have felt themselves forced to take matters into their own hands in the face of a an unresponsive legislature and activist courts. This is not how its supposed to be done, but that's what we have, No one wins, really.

The judge who ruled on this case had this to say:

"It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners," Kramer wrote.

Millennia of human tradition and the desires of California's voters are rather easily brushed aside, it seems to me. The judge had a specific answer to the "tradition" argument.

"The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional," Kramer wrote.

I would dicker with his use of the words "protection" and 'became", but then I'm not a lawyer and am limited to the common sense interpretation of language. It still seems, however, that a great deal of the laws we hold so dear are based either on our belief in a law-giving deity (obviously not applicable here), or on the long endorsement of human (and legal) tradition. To describe the institution of marriage as something that has "become traditional" in California is a twist of the language. California is a bit over a century and a half old; I believe that the institution of marriage predates us somewhat.

Of course there are ancient traditions of racial hatred and tribalism that we are happy to be able to put behind us, and in time this may be one of them, but to make an equivalence between gay desire for a state recognized marriage and the struggle for basic civil rights is a stretch. The state has established criteria for recognition of marriage, and the case for the gays rests on their assertion that they cannot meet those requirements (as opposed to will not.) There are plenty of state programs and benefits that are not open to me as I am a white male, and these programs are intended for minorities and women. Clearly the state is allowed to offer benefits that some citizens are unable to claim. The key word seems to be "rational". The people must establish, apparently, that their laws are rational to the satisfaction of a judge.

This is a tenuous thread on which to hang the laws of the state, no? Laws which discriminate on the basis of race or national origin can be found rational, and recognition of traditional marriage is not. All manner of atrocities have been rationalized by those committing them. Read the southern defenses of slavery in the early 19th century. For that matter, a great many laws which we never question are not particularly rational if subjected to critical analysis. We allow parents broad latitude in raising their children; is this rational or merely traditional?

If there is a vote on gay marriage I will vote for in favor. I feel it is a step in the right direction for the gay community and I'm happy that anyone is committed to marriage these days. But I do not like seeing these questions determined in courts and eventually, in a constitutional amendment. The people ought to be able to shape their own community, within the clear limits of respect for basic civil rights, and use their elected representatives to do it. If we're going to amend our constitution, I would prefer to restate what many have thought didn't need restating. Rather than an amendment that defines marriage, I would prefer an amendment that clearly defines the rights that are protected and allows other matters to be determined in the legislature or the ballot box.