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Justice Delivered

Why California got it right.

It wasn't exactly a shock when conservatives greeted last week's decision by the California Supreme Court legalizing gay marriage with their usual denunciations of "activist judges" and the "imperial judiciary." And it's easy to understand why conservatives dislike court-imposed progress on gay rights, since most would prefer that progress on gay rights didn't happen at all. More interesting has been the reaction of liberals who do support gay rights but who have nevertheless sharply criticized the decision. The Washington Post editorial page, for instance, called the ruling "an unnecessary bout of judicial micromanagement," while, in this issue of The New Republic, my colleague Jeffrey Rosen questions "the wisdom of imposing gay marriage by judicial fiat." According to this view, progress on gay rights should take place through state legislatures and governors, not through the courts.

Liberals who advance this argument are essentially making two points--one strategic, the other normative. First, they worry that securing gay marriage via judicial intervention will lead to a public backlash. Second, they contend that there is something undemocratic about judges reinterpreting state constitutions to arrive at conclusive judgments on hot-button social issues. Both arguments carry a certain logical appeal. But neither, upon closer examination, is particularly persuasive.

Take the strategic argument first. Four years ago, when Massachusetts began marrying gay couples after a ruling by its state supreme court, there was plenty of similar hand-wringing about the alleged backlash to come. But, in a piece she wrote for TNR at the time, journalist E.J. Graff predicted that the decision was unlikely to spark a backlash. In fact, she wrote that it was likely to solidify an emerging consensus in favor of gay marriage. That's because gay marriage is much more threatening in theory than in practice. Conservative arguments against gay marriage rest on dire predictions about how it will tear apart the country's social fabric. Once gay marriage is a reality and those predictions don't come true, the arguments against it start to look silly at best, cruel at worst. E.J.'s argument was vindicated in Massachusetts. In February 2004, according to The Boston Globe, a majority of residents (53 percent) opposed gay marriage; by March 2005, just ten months after gay marriages began taking place, a majority (56 percent) supported them. Why did so many people change their minds? I'm guessing many went through the same evolution as the Massachusetts legislator who explained why he switched sides on same-sex marriage in the years after the court made it legal: "I couldn't take away the happiness those people have been able to enjoy."

What about the backlash outside of Massachusetts? What about all those state constitutional amendments that passed in 2004 banning gay marriage? There's no doubt that the Massachusetts decision helped to motivate anti-gay marriage activists in the rest of the country. But the idea that gay marriage opponents were angered primarily by the way that decision was reached rather than the substance of the outcome is absurd. If gay marriage had arrived in Massachusetts at the behest of state legislators rather than judges, would gay marriage opponents in the rest of the country really have been any less annoyed? Of course not. No matter how gay marriage comes about, it's going to anger and discomfit some people. The idea that such people would be mollified by a different process seems more than a little unrealistic.

But it's the normative objections to the California decision that bother me most--the idea put forward by some commentators that winning gay marriage through the courts rather than through the legislative process is somehow a form of cheating. Is progress in a democracy somehow purer or more legitimate if it does not involve the judiciary? I can understand the appeal of this idea: Let the voters arrive at a consensus themselves; let the politicians do the voters' bidding; this is how democracy is supposed to work--end of story. But this is not how democracy works, at least not our democracy. Progress does not always happen perfectly in our country, and, if we demand that progress only happen in certain ways, we set ourselves up for a situation in which progress cannot happen at all. Most dramatic leaps forward in our country's history--and the gay rights revolution is one such leap--have happened through a combination of forces. They have neither been imposed solely from above nor driven solely from below. They have generally involved the work of courts, of legislators, of governors, and of faceless bureaucrats. Because their jobs carry different responsibilities, these actors rarely pull in precisely the same direction, and, on certain questions, some may rightly prove more influential than others. But to argue that judges have no role to play in one of the key issues of our time-- to pretend that state constitutions, not to mention centuries of accumulated legal precedent, have nothing to say on the question of whether it is permissible for government to treat gays and lesbians as second-class citizens-- defies any rational understanding of the way a constitutional democracy is supposed to work.

The California Supreme Court did not rule in a vacuum. For one thing, its decision comes in the midst of a generation-long shift in the way Americans view homosexuality. What was once viewed as a mental disorder is today widely recognized as a normal human attribute. More concretely, the court did not act in a political vacuum. The legislature has twice passed bills to legalize gay marriage, and one of the state's largest cities had been performing gay marriages before the courts ordered it to stop. What the California Supreme Court was doing last week was not judicial imperialism. It was simply taking a moral consensus that is clearly emerging, and applying it to the state's constitution.

Indeed, if you read the 120-page-plus decision itself, you can see the powerful and rather simple thinking behind what the court did. Critics have suggested that the decision is overly expansive or poorly reasoned. In fact, its logic is relatively straightforward. First, the court established that an implicit right to marry has long been recognized in California law. Then it established that inherent in this right to marry is a right to the dignity and respect that comes with marriage--a right that California's "domestic partnership" law could not fully afford. The court then distinguished between two standards of judicial review: a "rational basis" standard, which allows the court to strike down a measure only if it serves no legitimate purpose; and a "strict scrutiny" standard, which the court applies to laws concerning "suspect classifications," such as race and gender, and which allows the court to strike down a measure if the state cannot show that it is needed to achieve a compelling interest. Does sexual orientation constitute a suspect classification? It is not exactly analogous to race or gender, but it is comparable in two key respects: First, people do not choose to be gay, just as people do not choose to be black or female. And second, discrimination against gays and lesbians has been both widespread and institutional throughout American history. None of this should be controversial, and it is exactly what the court concluded. Having established that sexual orientation constitutes a suspect classification and is therefore subject to strict scrutiny, it was relatively easy for the court to conclude that the state had no compelling interest in excluding gays and lesbians from marriage. After all, the supposition that denying marriage rights to gays will somehow preserve the institution's dignity for everyone else is hardly a persuasive argument.

Anyone who has ever looked at a poll on gay issues that disaggregates the responses by age knows how the story of gay marriage is going to end. What no one knows is when it is going to end. Had the California Supreme Court let the state's political process grind forward--its obligation to interpret the state's constitution be damned--how long would it have taken for the state's gays and lesbians to win their marriage rights? Perhaps it would have taken only a year. But what if it had taken ten years? Or even a generation? Meanwhile, stuck waiting patiently would have been the million-plus gay and lesbian Californians who want to live as first-class citizens, not in some theoretical, distant day to come, when the maddeningly slow work of legislators and governors finally delivers the outcome via means that we might regard as ever so slightly more democratic--but now, right now.

If courts, by interpreting state or federal constitutions in light of the country's changing mores on homosexuality, can hasten the day when gays and lesbians throughout the country fully enjoy the fundamental rights they are owed, then I, for one, am not going to quibble. Yes, if I were drawing things up from scratch, I might marginally prefer to have gay marriage enacted by legislatures, not by courts. But history is not drawn up from scratch. And, sometimes, waiting for the perfect process means waiting much too long.