Six justices of the California Supreme Court decided yesterday that Proposition 8 should stand. In the end, the case revolved around the right of gay people to call their unions marriage. They took great pains to point out that their decision could be made only because gays and lesbians had all the rights of marriage already (italics mine).
Some people are astonished that we would fight so hard for such a small thing as a word. You've got the pie, why don't you just eat it and stop worrying about whether it's called a pie or a tarte?
Millions and millions of dollars. Hundreds of thousands of person-hours involved in knocking on doors, showing up at street demonstrations – all for a single word.
Ironically, the Supreme Court answered the question (Marriage Cases, supra, 43 Cal.4th 757, 845-847), why, in its previous ruling last year. Because “the assignment of a name other than “marriage” to same-sex unions creates the perception of second-class status, perpetuates disparagement based on sexual orientation, poses practical difficulties for same-sex couples and their children, and threatens privacy.”
The question, then, is why they changed their mind this year and supported the taking away of rights they previously found existed in the Constitution.
I don’t think we will ever get an answer to that question. We will know what they tell us, that they had to apply the law as they saw it, that if a majority of Californians expressed their will in a proper election – and there is no doubt this is what happened – their hands were tied. Even though second-class status for gays, the possibility of open disparagement, practical difficulties for same-sex couples and a loss of privacy have been brought about by this event, they had to stay out of it.
I, for one, will not come down too heavily on these justices. They are appointed officials who are subject to recall if they overstep the line into what the right would call judicial activism. And even if you discount that and grant that they have the courage not to fear that possibility, they could well be reasoning, as they say they are, that California has to work its way through the legislative process, no matter if minorities suffer. It's no big deal, dignity. Enjoy the pie/tarte.
Think long term. We will have our equal rights some day. But these justices will have to live with the fact that when the time came to stand up for a California disparaged minority, they said,
“Let them eat their pie.”