Same-sex marriage, an on-and-off issue in election campaign seasons going back to the mid-1990s, is back with a vengeance for the 2010 cycle.
But, this time, it could play very differently—if Democrats and responsible Republicans choose to recognize the arguments for marriage equality that the judge of the Federal District Court in San Francisco outlined when he struck down California’s Proposition 8.
That’s not a pipe dream. It’s practical politics.
The decision by the judge to reject Proposition 8—the bar on marriage equality narrowly passed by the state’s voters in 2008—means that the issue is probably headed for the US Supreme Court. But, before it gets there, it will be dragged down the campaign trail once more.
Judge Vaughn Walker’s eloquent argument in the Proposition 8 case offers new language for defenders of the principle that this has always been a debate between those who favor protecting the basic human rights of all couples and families versus those who would discriminate based on their own fears and bigotries.
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," wrote Walker. "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."
There is simple logic in that statement, as there is in Walker’s rumination on why civil liberties cannot be put to a vote.
"Conjecture, speculation and fears are not enough," explained the judge. "Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives."
These are just a few snippets from a very long ruling. But they are important because they offer candidates who are inclined to support same-sex marriage language that can and should be used in making the case that discrimination is wrong—even if a majority might choose to discriminate. It was wrong when Southern majorities discriminated against African-Americans. It was wrong when Southwestern majorities discriminated against Latinos. It was wrong when majorities in plains states and the West discriminated against Native Americans. It is just wrong. And it can and should be explained as such.