Two Roads to Gay Marriage: EJ Dionne Jr.

...And, as a New York Court of Appeals judge cited by the California court majority noted, fundamental rights "cannot be denied to particular groups on the ground that these groups have historically been denied those rights." If history and tradition had constrained us, equal rights for African Americans would never have become law.

But to find a constitutional right to gay marriage, the California majority chose to argue that the state's very progressive law endorsing domestic partnerships for homosexuals -- it grants all the rights of marriage except the name -- was itself a form of discrimination.

This is odd and potentially destructive. As Justice Carol Corrigan argued in her dissent, "to make its case for a constitutional violation, the majority distorts and diminishes the historic achievements" of the state's Domestic Partnership Act.

That's true, and in many states, it will take years for a political and legal consensus in favor of gay marriage to develop. In the interim, civil unions and domestic partnerships are the best hope homosexuals in these states have for some form of legal recognition of their relationships. The danger is that foes of civil unions will use this court's own logic to argue that such arrangements are not a political halfway house but lead inexorably to gay marriage. It would be unfortunate if California's breakthrough were used to stall significant if more modest progress elsewhere.

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posted by Imapp Staff at 9:19 AM | link

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