by Sean Kosofsky
TKO. Take that Gary Glenn, James Dobson and George W. Bush.
After a series of marriage-related defeats and near misses, California hit a home run last week by rolling out their state constitution like a red carpet to gay and lesbian couples, declaring that we are all indeed equal.
For background, in 2004, San Francisco Mayor Gavin Newsom decided to allow same-sex couples to marry. 4000 couples later, the state Supreme Court ruled that Newsom had no authority to tear down the discriminatory ban on gay marriage. In the most anti-family action any court has ever taken, the Court divorced 4000 couples without their consent. Advocates filed suit and last week were vindicated – barely. In a 4-3 decision, the Supreme Court ruled that the state's constitution guaranteed equal protection in the area of marriage and even stated that civil unions would not suffice.
The decision also suggested that California could toss out the term "marriage" altogether and use something different. The best part is that all Americans are allowed to get married there, unlike in Massachusetts where you must come from a state without a marriage ban. This dramatically increases the number of legally married LGBT couples that will return home with something very tangible to fight for. The decision could not have been better – except if it had been unanimous.
For me, the most important thing about the decision is the magnitude of the impact. Tens of millions of people live in California. Tens of millions of Americans can take advantage of the new freedoms there. It will cause millions of new conversations, thousands of articles, blog posts, columns and classroom debates. This decision will catapult marriage equality onto the kitchen table right next to the apple pie.
But wait — there's more. California voters picked up a very valuable tool with this decision. Now, real marriages are at stake, just like they have been in Massachusetts. Starting on June 16 couples will be allowed to marry. Starting on that day, voters are going to have to deal with actual married couples when they vote on an anti-gay constitutional amendment this November.
More than ever in California, voters will not just be voting on a theory or an idea. Real people will lose fundamental human rights. Real rights and benefits will be at stake. This makes the stakes much higher and hands anti-amendment forces a major tool to defeat the measure. In every other ballot measure around the country, marriage equality was not a reality and therefore more abstract. For the first time in America voters will be asked to divorce people. And that is a step many people will hopefully not be willing to take.
And what about the Republican response? Governor Schwarzenegger quietly agreed to honor the ruling in California. This silent acquiescence sent a powerful message to politicians all over the country, not just Republicans. The message was clear – the law is the law, let's move on. Mitt Romney, however, left no stone unturned in his pursuit to undermine legal marriage equality. Schwarzenegger has drawn a line in the sand. The new future of the Republican party in California and elsewhere will continue trending toward inclusion – the kind of inclusion George W. Bush eschewed.
If voters there are smart, they will also consider the economic impact. Thousands of gay and lesbian couples are likely to plan weddings in California which will bring tourism, money, investment and good will. Back here in Michigan voters have continued to erect barriers to progress. Not only did we affirm the marriage ban in 2004 and the affirmative action ban in 2006 but we are one of the only states in the country to have an outright ban on stem cell research.
Two weeks ago in Michigan, our state Supreme Court did the opposite of California. Instead of looking at our Constitution with the lens of compassion and sound legal principles, they twisted and contorted precedent and personal prejudice to arrive at a decision that moves Michigan backward instead of forward. LGBT activists in Michigan may be able to convince public employers to still offer health care to the partners of LGBT employees, but it shouldn't have to be this difficult. Whatever the California Supreme Court has been drinking, we could use some here.
