In Oregon, Democrats and moderate Republicans are
being encouraged to create civil-union legislation following
Thursday's state Supreme Court decision rejecting gay marriage (and
nullifying nearly 3,000 marriage licenses issued to same-sex
couples last year in Multnomah County). Senate Majority Leader Kate
Brown said the court's silence on the constitutionality of marriage
benefits for gays, "leaves the door wide open" for a civil unions
law, which is
supported by Gov. Ted Kulongoski.
In Connecticut, the state House approved
a bill to provide same-sex couples with the same rights, benefits
and obligations of married couples on Wednesday, but added an
amendment that defines marriage as between a man and a woman
(Connecticut has been one of only nine states that have not passed
a Defense of Marriage Act limiting marriage to opposite-sex
couples). Gov. M. Jodi Rell will likely sign the bill, although the
Family Institute of Connecticut has declared that civil unions are
same-sex marriage by another name.
Both these examples highlight continuing advances on the civil
unions front via popularly elected state legislatures and
governors, and continuing defeats when it comes to same-sex
marriage - except in the nation's super-liberal districts. But when
a few judges have ruled in favor of gay marriage, it's triggered
renewed efforts to change state constitutions (and the U.S.
Constitution) to prohibit this, and often sneaking in a
constititional bar against civil unions as well.
If it hadn't been decided to make the perfect the enemy of the
good, I believe we'd be seeing a civil unions groundswell, much to
the chagrin of the religious right.
Update: In the comments area, Alan notes that
even moderate, often Democratic-voting states such as Michigan and
Ohio have passed amendments barring civil unions - a bad sign for
those pushing the judicial strategy. He further observes:
As for comparing marriage suits with classic civil rights suits
like Brown v Board of Ed, I think others have suggested
that it's a matter of whether the country is near the "tipping
point" on an issue, in which case judicial activism can supply a
final thrust.
I'd submit that the country was ready to banish Jim Crow in the
1950s (even if the deep South wasn't), and thus Brown did
not result in a federal constitutional amendment protecting
segregation. But the country is nowhere near ready to embrace gay
marriage, and so judicial activism may well result in a federal
amendment (as it has already resulted in so many state
amendments).
That's certainly the worst-case scenario, but we shouldn't
dismiss the risk.