The California Supreme Court struck down a same-sex marriage ban with 4-3 decision claiming, "limiting the designation of marriage to a 'union between a man and a woman' is unconstitutional," and that so-called "domestic partnerships" for same-sex couples are discriminatory and not "constitutionally valid" in place of marriage. The California Supreme Court had a lot to say about the issue, in fact here are three examples of arguments included in the 30,000 worded decision as documented by John Cloud of TIME Magazine.
What gays really want is a wholly new right, the right to "gay marriage." The court answered by citing Perez v. Sharp, its own 1948 decision legalizing interracial marriage: "The court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as 'a right to interracial marriage,' and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on... the importance to an individual of the freedom to join in marriage with the person of one's choice... It is a fundamental right of free men."
Marriage exists mainly for the purpose of protecting society by encouraging stable homes for children. The obvious retort to this position is that plenty of straight couples don't have children, and yet they can still marry. Those opposed to gay marriage answer this objection by saying that the state can't go around inquiring which straight couples are fertile and which are infertile; they do know, though, that no gay couple can have kids on its own. The California court's wonderfully dismissive response: "If that were an accurate and adequate explanation for the absence of such a limitation, it would follow that in instances in which the state is able to make a determination of an individual's fertility without such an inquiry, it would be constitutionally permissible for the state to preclude an individual who is incapable of bearing children from entering into marriage." Not even the most hard-core opponent of marriage equality takes that position.
If gays are allowed to marry, it will send a message to straight people not only that having children isn't important, but that it doesn't really matter whether kids are raised by their biological parents. The court's response: "Although we appreciate the genuine concern for the well-being of children underlying that position, we conclude this claim lacks merit... Our recognition that the core substantive rights encompassed by the constitutional right to marry apply to same-sex as well as opposite-sex couples does not imply in any way that it is unimportant or immaterial to the state whether a child is raised by his or her biological mother and father. We do not alter or diminish either the legal responsibilities that biological parents owe to their children or the substantial incentives that the state provides to a child's biological parents to enter into and raise their child in a stable, long-term committed relationship."
This decision may become a hot button again as it was played out by the GOP two years ago. The issue is at times attributed to helping President Bush receive the support from his Christian base to edge out John Kerry in 2004. Whether this topic becomes an issue will truly be up to McCain. If they decide to take such route, it may just be enough to rally the troops to support him over one issue.
But, is that really likely? I do not think so. In fact, I believe it would be foolhardy for the GOP to make this an issue again. Cultural norms have changed enough to alienate young voters from the party but more importantly this issue has no federal relevancy. In 2004 and 2006, many states including, Texas, passed bans of same-sex marriages approved by voters. Thus, it does not make sense how one state can make this a national issue again. Nonetheless, it ill be intresting to see how this plays out.
