California’s gay marriage ruling will reverberate for years to come. And, as many pundits and press have pointed out, the state’s Supreme Court pulls a lot of sway in cases of social evolution.
In 1948, that very court decided Perez v. Sharp, a precursor to Loving v. Virginia, which abolished bans on interracial marriage. Perez v. Sharp, as journalist Adam Liptak points out, came up three times during oral arguments into California’s gay marriage decision.
Three times [Chief Justice Ronald M. George] quoted from the courtâ€™s 1948 decision in Perez v. Sharp that struck down a state ban on interracial marriage, a high point in the history of a prestigious and influential court.
â€œThe essence of the right to marry is freedom to join in marriage with the person of oneâ€™s choice,â€ Chief Justice George said, quoting Perez.
The success of the Perez argument has reinvigorated the civil rights argument surrounding gay equality: are they one in the same? The New York Times editorial board certainly think so – Saturday’s edition featured an unabashed celebration of last week’s ruling. And, more importantly, a nod toward George’s Perez analogy – and a jab at Republican John McCain’s vows for judicial justice:
The new opinion found that â€œthe right of an individual to establish a legally recognized family with a person of oneâ€™s choiceâ€ is fundamental. The court said Californiaâ€™s strong domestic partnership statute was not enough to solve the inequality problem.
â€œAn individualâ€™s sexual orientation â€” like a personâ€™s race or gender â€” does not constitute a legitimate basis upon which to deny or withhold rights,â€ wrote Chief Justice Ronald George, first appointed to the bench by Gov. Ronald Reagan.
He noted that â€œtradition aloneâ€ did not justify the denial of a constitutional right to same-sex couples, any more than it did to interracial couples. Coming on the heels of John McCainâ€™s rant against so-called â€œactivist judges,â€ the decision provides a refreshing example of a Republican-dominated state court transcending ideology and political pressures to render a scrupulously fair ruling based on law, precedents and common sense.
Of course we all know that social conservatives won’t buy what they perceive to be bologna.
Bryan Fischer of Renew America, one of our favorite sources for zealous right-wing rants, penned a recent column rehashing the “activist” argument:
Thursday’s California Supreme Court ruling overturning the state’s ban on gay marriage is just another catastrophic example of judicial activism on steroids.
Four black-robed oligarchs callously overrode the expressed will of 4,618,673 Californians who voted in 2000 to define marriage exclusively as the union of one man and one woman. When four people can ignore the democratically enacted decision of 4 million people, we no longer have a republic at all. This is a form of tyranny, plain and simple.
Law professor Andrew Koppelman, in a conversation with Liptak, directly contradicts Fischer’s thinking, highlighting, again, Perez: “Perez was a really courageous decision. It was handed down at a time when it was just taken for granted that legally entrenched racism was not anything you could do anything about.â€
Thanks to the civil rights movement and fair courts, we now know that we can do something about legally entrenched discrimination. Unfortunately we can’t do anything about people like Fischer. But, if California’s past is any indication, conservative opposition won’t be too much of an obstacle.
[Image By Darryl Bush for AP]