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By Mubarak Dahir
For the second time in a year, gay and lesbian couples gathered in matrimonial throngs at city hall in San Francisco this past week. Some were waving rainbow flags. Others held up marriage licenses in a sign of victory.
But unlike last year when the prescient mayor of that city, Gavin Newsom, announced his city would start handing out marriage licenses to same-sex couples because he felt the state law banning it violated the state’s constitution there were no nuptials this time around. But there was plenty of gay marriage celebration. And before long, there may well be wedding bells ringing there again for same-sex couples.
As the entire nation knows by now, that’s because a state judge in California ruled on Monday, March 13, that the state’s ban on gay and lesbian marriages violates California’s constitution.
County Superior Court Judge Richard Kramer wrote there was “no rational purpose” in refusing same-sex couples the right to marry.
“The denial of marriage to same-sex couples appears impermissibly arbitrary,” he ruled. “Simply put, same-sex marriage cannot be prohibited solely because California has always done so.”
He likened the state’s domestic partnership laws considered to be the third most comprehensive set of laws in the country protecting same-sex couples, after only Massachusetts, which allows gays and lesbians to marry, and Vermont, which sanctions civil unions to the historically flawed “separate but equal” racial laws of the past.
And Kramer flatly rejected the argument by two conservative groups that gays shouldn’t be allowed to marry because they cannot procreate.
“One does not have to be married in order to procreate, nor does one have to procreate in order to be married,” Kramer wrote. “Thus, no legitimate state
interest to justify the preclusion of same-sex marriage can be found.”
The ruling made headline news, and provided further fuel to the already red-hot flames of same-sex marriage.
Anti-gay groups intend to appeal the law in California, so the ruling is far from the last word on the subject there, or anywhere else in the country.
Still, the victory gave a much-needed injection of public optimism, not to mention a level of vindication, to those supporting and fighting for same-sex marriage rights.
Just a few months ago, following the outcome of the November presidential election, supporters and activists on the same-sex marriage front were being scapegoated and vilified, even from within gay and lesbian quarters, for making such a public stand on marriage.
George W. Bush brilliantly manipulated the issue to his advantage at the polls, voters in 11 states approved bans on same-sex marriage, and the Democrats conveniently used the issue to cover up John Kerry’s failings as an uninspiring presidential candidate.
All of a sudden, gay marriage was no longer hip. It was poison.
This ruling, particularly if it holds and many observers are optimistic it will has seemingly made us a popular cause again in the imaginations of many Americans.
I guess everybody really does love a winner.
But in all the hoopla, it’s critical that we, particularly gay and lesbian people, note one extremely important and often misrepresented fact, especially since there will undoubtedly be other less joyous moments ahead in the long and strenuous road ahead for same-sex marriage rights.
The fact is that, despite the media frenzy and the second rash of celebrating in San Francisco’s city hall, the California ruling is not groundbreaking or exceptional.
It’s very good news. It’s an important step. It’s a reason to cheer.
But in many ways, it’s old hat.
The fight for recognizing the legal marriage rights of gay and lesbian couples goes at least as far back as 1993, when Hawaii’s Supreme Court similarly ruled that discrimination against same-sex couples was more than likely unconstitutional. A trial judge removed the restrictions prohibiting gays and lesbians from marrying, but voters there amended their constitution to limit marriage to one man and one woman.
But since then, an additional half a dozen state’s courts have ruled in favor of allowing same-sex couples to marry: Alaska, Massachusetts, New York, Oregon, Washington and now, California.
Furthermore, there are court cases pending in Connecticut, New Jersey, Maryland and Indiana.
Vermont offers a nearly carbon copy of marriage in their form of civil unions, and Massachusetts allows it outright.
And of course, Canada, too, has come to the same conclusion on same-sex marriage rights.
Interestingly, the Connecticut legislature looks poised to pass a civil unions law soon, too even without a court order to do so.
Even in California, the court ruling doesn’t really break much new ground when it comes to the notion of same-sex couples: In the past few years, the state legislature has passed a collection of laws that give gay and lesbian couples nearly as many rights and protections as straight married couples, without calling it by that sacred name.
Judge Kramer’s ruling will, without question, boost the energy, will and determination of foot soldiers in the conservative right who want to pass a federal amendment to the US Constitution banning gay and lesbian marriage.
Conservatives will protest loudly that California’s Judge Kramer is just another outlandish example of “judicial activism” that has veered out of control.
But the truth is that, for years, not only the courts, but politicians and legislatures have been debating and granting marriage rights to same-sex couples. The notion can no longer be reasonably called outside the mainstream.
When it comes to same-sex marriage, California is not even cutting edge.