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Wednesday, August 11th 2010, 4:00 AM
Last week, U.S. District Judge Vaughn Walker declared that California's ban on same-sex marriage - and, by implication, any state's ban - violates the U.S. Constitution. The case is on its way to appeal, where it may be overturned. Already, though, gay men and women across the country are celebrating unreservedly. I only wish I could join them.
That feels strange to say. After all, as a gay man, a leading proponent of gay marriage and half of a same-sex marriage myself (my partner and I got married in the District of Columbia in June), I find so much to celebrate. How could I not?
Walker's opinion is a formidable piece of work, bristling with evidence and carefully reasoned. Love it or hate it, you can't wave it aside. It crystallizes the arguments for marriage equality, exposes the flimsiness of arguments on the other side and puts a lot of valuable, myth-puncturing evidence on the record, where future courts will have a hard time ignoring it.
No less important - though widely overlooked - it also puts a federal court on record as saying, unequivocally, that the government has no defensible interest in preferring heterosexuality over homosexuality. For gay Americans, that was a long, long time coming. Only a few decades ago, when homosexuals were routinely jailed, harassed and dismissed from government jobs, courts took it for granted that discriminating against gays was a perfectly proper business for the government to be in.
As an admirer of James Madison and Edmund Burke, however, I winced.
Madison, of course, was the guiding spirit of the Constitution. His great insight was that the best defense against tyranny and instability is to use politics to restrain politics. By pitting levels of government, branches of government and opposing interests and ideas against one another, he sought to block any one faction or ideology from riding roughshod over all others. Madison's Constitution was born of compromise, and it is intended to act as a door to compromise, not a barrier.
Although California's voters overturned gay marriage in 2008 (an unjust and unwise decision, in my view), they left in place the state's civil unions program, which provides all the state benefits of marriage under a different name. In effect, they said, "We'll give gay couples everything but the word 'marriage.' That final step, we'd like more time to think about." The result amounted to a flawed but reasonable compromise.
Walker was right to say that separate isn't equal. Civil unions are hardly ideal. But his decision treats civil unions as if they were trivial or worthless. By refusing to give them any weight and declaring them not just inadequate as a matter of policy but prohibited as a matter of law, Walker uses the Constitution to put compromise out of bounds.
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