I wish I could be as overjoyed by the California Supreme Court's ruling for same-sex marriage as the rest of the gay world is. Politically, the ruling merely tees up an initiative battle, to be decided by simple majority vote. Backlash against the Court may make that battle harder to win. Affirmation of the Court's decision by plebescite would be tremendous, but it's too early to celebrate.
As for the ruling itself, my reading of it leads to a reaction I wish I didn't have: the majority opinion here is an example of judicial overreach.
Caveat: That's a flash reaction subject to change as I learn more. But, as I understand the opinion, here's what the court did.
In Massachusetts, the state Supreme Court had a stark choice before it: SSM, or throw gays out the window (TGOW). TGOW was a clear denial of equal protection, not remotely justified by the state's arguments, so the court went with SSM.
California offers a very different situation. Gay couples already have available all the substantive state rights of marriage, under the state's domestic-partner program. The state Supreme Court was merely deciding whether the legislature could withhold the word "marriage" in deference to tradition and public preference.
No, said the court. Gays are a "suspect class" and no differentiation of any kind is tolerable. The Court acknowledges that in California "marriage" has always, until now, meant opposite-sex marriage. Nonetheless, it holds that marriage definitionally includes same-sex couples.
Wait a minute. If the state constitution never even contemplated SSM before, why does it mandate SSM now? Because, says the Court, social mores and state policies (including the state's domestic-partner law) have, in the past 30 years, recognized the fundamental importance of equal rights for gays. The state has implicitly repudiated its tradition of discriminating against gays, and marriage law must reflect this change.
What the Court seems to be saying, then, is that California can have SSM. And California can have TGOW, provided throwing gays out the window reflects a broad consensus against gay equality. The one thing California cannot have is compromise en route to gay equality. Once the state has decided to treat gay people equally, it must go all the way. No half-measures, or even 90-percent measures. No experiments, transitions, interim steps, or concessions to politics. All or nothing, now!
This kind of legal totalism, it seems to me, is tailor-made to rule out any kind of accommodation, even if that accommodation gives gay couples most of what we need with the promise of more to come (soon). As one of the dissents points out (PDF), it also may make legislators reluctant to even start down the road toward civil rights.
I think SSM is a better policy than civil unions (at least one of the dissenters agrees). And I think denial of marriage to gay couples is discriminatory. But to make even a well-intentioned compromise ILLEGAL strikes me as a step too far, and a good example of how culture wars escalate.