IGF CultureWatch

The May 15 decision by the California Supreme Court overturning the state's ban on same-sex marriage is clearly major news for all of us. It was a robust, comprehensive decision that examined nearly all the traditional arguments against permitting same-sex marriage and found them wanting.

The court said, "In light of the fundamental nature of the substantive rights embodied in the right to marry-and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society-the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation."

Specifically, the court pointed out that (1) allowing gays only a differently named relationship (such as "civil unions") will "impose appreciable harm on same-sex couples," (2) given the prejudice that gays have historically faced, forbidding them the word "marriage" would likely be viewed as an official view that their relationships are of lesser stature, and (3) calling gay relationships by a different name could perpetuate the view that gays and gay couples are "second-class citizens."

The decision is significant for several reasons. The majority included three justices appointed by Republicans and the court's lone Democratic appointee and was written by Republican-appointed Chief Justice Ronald George. And the California court is regarded as influential since other state courts sometimes look to it for precedents and judicial reasoning.

Even more important, the court drew an explicit parallel between government bans on interracial marriage and gay marriage, citing its own 1948 decision striking down California's ban on interracial marriage, a decision far in advance of the 1967 U.S. Supreme Court's decision striking down all state prohibitions on interracial marriage.

Perhaps most important in the long run, observing that marriage was a fundamental constitutional right, the court-a first for a high court-invoked a demanding justification for discriminatory treatment of different groups called "strict scrutiny" and found that the state government's rationale for denying gays the word and status of "marriage" could not pass that test.

The three dissents do not seem to be up to snuff. They all argue, among other things, that the decision violates the separation of powers and constitutes judicial overreach. The court should have left an important matter like gay marriage to the political process, they argue.

But, of course, the California legislature has already passed bills instituting gay marriage-not once but twice. But Gov. Arnold Schwarzenegger vetoed both bills, saying that the issue should be settled by the state Supreme Court.

The court had already stated that the legislature could not make an interpretive end run around a popularly approved proposition banning gay marriage, by claiming that it applied only to recognition of out-of-state gay marriages. So the issue faced, if not an impasse, at least a complicated legal situation. So in a way the court may have felt pressured to rule.

For partners who have been together for many years, marriage must feel like a long-delayed state certification of the worthiness and legitimacy of their relationship, just as the state did for their parents and grandparents. For young gays, however, who are early in the first throes of romantic love with a new partner, marriage may be a dangerous temptation.

How many young gays do we all know who claimed they were deeply in love with a new partner, only to lose interest in a few months and go off in search of a new partner? To be sure, some youthful attachments do endure, but a prolonged period of getting to know each other seems desirable. Young people should remember the old adage, "Marry in haste, repent at leisure."

California's constitution is the most "populist" in the country, allowing a simple majority of voters to institute state policies, recall state officials-and reverse Supreme Court decisions. What gay Californians face now is an initiative to undo the court's decision and once again prohibit gays from marrying.

So California gays now have the task of gearing up for an acrimonious and expensive fight to preserve gay marriage. Gays may well lose. Eight years ago slightly more than 61 percent of California voters approved just such a ban. Since then, public opinion has slowly moved in the direction of support for gay marriage, but by barely one percent or less a year. Probably not enough.

So the pro-marriage campaign had better be a good one, cogent and well-thought out. Examine it carefully before you respond to the myriad of fundraising appeals we will all soon be getting.