uExpress.com: Maggie Gallagher by Maggie Gallagher -- (03/15/2005) A CALIFORNIA COURT'S CASE AGAINST CIVIL UNIONS

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03/15/2005

A CALIFORNIA COURT'S CASE AGAINST CIVIL UNIONS

A San Francisco court just ruled that California marriage laws -- which define marriage as the union of one man and one woman -- are irrational. Surprised? Somehow, me neither.

Since Massachusetts' Goodridge decision in 2003, lower courts in six states and two federal courts have ruled in favor of marriage, with little publicity. But a San Francisco judge could find no rational reason why state legislatures might support the idea that to make a marriage, you need a husband and wife.

Of course, the judge's ruling in favor of gay marriage grabbed the headlines. But ultimately the biggest fallout from the case (which will be appealed) may be hidden underneath: The California court just handed the religious right a powerful new case against civil unions.

Civil unions are the kind of compromise legislatures are good at. For many people, civil unions are the sensible, can't-we-all-get-along middle ground in the gay marriage debate. After the November elections made clear the public's continuing strong opposition to messing around with marriage, some gay marriage advocates urged a tactical retreat, pushing civil unions as the quieter "next step" on the road to gay marriage. Get civil unions. Start calling them civil marriages. After a while the lines blur and people will wonder what all the fuss was about.

Besides, with civil unions, they figured the wedge issue worked their way: While a strong majority of Americans are against same-sex marriage, a majority of Americans also tell pollsters they are fine with some form of legal protections for gays and lesbians who enter same-sex unions. Just don't call it marriage.

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Why doesn't this compromise work? One reason is that for its passionate advocates, gay marriage isn't really a debate about benefits. (In Connecticut, gay rights groups recently angered Democratic legislators by initially opposing a state civil unions bill under consideration there.) If this were a debate about benefits, democratic compromise could work its magic. A little horse-trading here and there, everybody goes home happy. But gay marriage is, heart and soul, a debate about the meaning of marriage and who has the power to confer this meaning.

A second reason is becoming hard to ignore: Increasingly, pro-gay marriage judges won't let you compromise, as the California case makes clear.

In 2000, 61 percent of Californians voted in favor of a measure defining marriage as the union of husband and wife. Recently, the California legislature passed one of the most sweeping civil unions packages in the nation. California Attorney General Bill Lockyer cited that sweeping new legal recognition as evidence that California does not discriminate against gays. But the judge rejected that argument, citing Brown v. Board of Education -- the landmark U.S. Supreme Court decision that struck down segregated schools.

"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts -- separate but equal," the judge wrote.

In fact, the judge went even further: "The existence of marriage-like rights without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples. ... The state's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well."

If this ruling holds, the court's message is clear: Pass civil unions laws, and you put your marriage laws in legal jeopardy. Courts will punish your good intentions.

I think the San Francisco court is wrong in ruling this way, in rigidly cutting off compromise efforts to meet legitimate social needs while protecting the legal and cultural meaning of marriage. But at least the stakes in the same-sex marriage debate will be clear. For better or for worse, it's marriage or nothing now.

(Readers may reach Maggie Gallagher at MaggieBox2004@yahoo.com.)