More on the California Gay Marriage Decision

Opponents of gay marriage come up with all sorts of elaborate rationalizations for their position, but in the end they're all based on the same maddeningly circular logic: it isn't allowed because it isn't allowed. That's pretty much what the California Court of Appeals said in yesterday's opinion upholding marriage discrimination.

As I understand it, the majority opinion is based on three separate determinations: that the fundamental right to marry is not at issue; that distinctions based on sexual orientation are not a 'suspect classification' requiring a 'strict scrutiny' standard; and that the law has, or could have, a 'rational basis' (the looser standard applied if it isn't a 'suspect classification'). The second is a little complicated; even though common sense would say that sexual orientation is obviously a suspect classification, there appear to be conflicting precedents. The first seems absurd on its face; marriage is a fundamental right (as the Supreme Court has found), and the law at issue makes it impossible for a whole class of people to exercise that right. The third strikes me as a variant of the basic anti-equality tautology: the fact that marriage has always been defined as a man and a woman is in itself a rational basis for keeping it that way. (On this point, the majority simply defines away discrimination, and thus avoids having to justify discrimination.)

In the end, I think this decision is more caution (or cowardice if you prefer) than malice; much of the majority's argument is that the rational basis standard gives extraordinary leeway to the legislature. (I would be more comforted by this argument if more conservative courts showed comparable restraint.) I think Justice Kline's rejoinder is devastating to this rationale...but then, I agree with him anyway. Take it for whatever it's worth.

It goes to the state Supreme Court now; I'm not optimistic. On the other hand, as Justice Kline says, the opponents are clearly on the wrong side of history.

[That's all, folks]