Gay marriage: What the court didn't do

By Tim Grieve
Published August 12, 2004 6:16PM (EDT)

Gay marriage seems to have fallen flat as Republican wedge issue this year -- with the war continuing and the economy stumbling, it's hard for swing voters to get all hot and bothered about matrimony -- but you can expect it to be campaign fodder again today.

The California Supreme Court has just issued its decision in the case challenging the validity of approximately 4,000 marriages performed in San Francisco earlier this year. The court invalidated the marriages, but its ruling isn't as sweeping as it might be.

When San Francisco Mayor Gavin Newsom began granting marriage licenses to gay couples in February, he did so based upon his contention that the California constitution's prohibition against discrimination trumped a state law banning gay marriage. The Supreme Court didn't say Newsom was wrong today; it just said that he isn't entitled to make that judgment for himself. Interpreting laws -- and deciding whether laws violate a constitution -- is a job for the courts, not the mayor, the Supreme Court said.

The Bush campaign will undoubtedly say that the court made the right decision, but there's a bit of irony here. In an effort not to look like gay-bashers, the Republicans have cloaked the gay marriage fight in the language of "judicial activism." People, not judges, should get to decide the issue for themselves, they say. But in the San Francisco case, the California Supreme Court says that judges -- and not the people's elected representative -- should make the determination about the law on gay marriage.

California courts will soon get their chance to weigh in on the question that wasn't answered today. Lambda Legal and a number of other groups have filed a lawsuit challenging the constitutionality of California's law against gay marriage.

And in a statement released just after the California Supreme Court ruled this morning, People for the American Way President Ralph Neas made it clear that the fight will continue nationwide as well. "While todays ruling is heartbreaking for thousands of committed gay and lesbian couples and for their friends and families, it is far from the final word on the struggle toward full equality, Neas said. Our nations history is a story of steady progress achieved by people working together to eradicate discrimination from our laws and institutions. Every battle against discrimination has encountered resistance. Every fight for equality has faced setbacks. But the deeply rooted American values of freedom, fairness, and equality under the law will be victorious in the end.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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