Commentary: The tide is turning on gay marriage

The Rock Hill HeraldFebruary 22, 2012 

The battle to legalize gay marriage isn't over. But the sooner legalization comes, the better, not just for gays and lesbians but also for the nation as a whole.

The right for gays and lesbians to enjoy the full benefits of marriage expanded this month with a court victory for California gays and the legalization of gay marriage in another state. Gov. Chris Gregoire of Washington signed the bill passed in her state, making it the sixth, along with the District of Columbia, to allow same-sex couples to marry.

Pending legislation or ballot measures in Minnesota, Maryland, New Hampshire and Maine could legalize gay marriage in those states this year. The New Jersey Legislature has passed a bill legalizing same-sex marriage, but Gov. Chris Christie threatened to veto it.

The ruling against California's Proposition 8 by a federal appeals court earlier this month has been hailed as a landmark victory for gay marriage that might lead to a hearing before the U.S. Supreme Court. But legal scholars say this might not be the bill that coerces a comprehensive Supreme Court ruling on the issue.

Proposition 8 was a voter initiative to reverse a decision by the state Legislature to legalize same-sex marriage in California. It passed in November 2008 with 52 percent of the vote.

But in 2010, a federal judge struck down Prop 8, saying it was a violation of the civil rights of gays and lesbians in the state. And on Feb. 7, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that the lower court judge had correctly interpreted the U.S. Constitution and Supreme Court precedents.

But the appeals ruling was based on a relatively narrow finding. The panel essentially ruled that, because the state already had granted the right to gays and lesbians to marry, Proposition 8 had unconstitutionally deprived them of that right.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples," according to the opinion written by Judge Stephen Reinhardt, considered to be one of the court's most liberal judges.

But if the Supreme Court agrees to hear this case, justices will have a choice whether to consider the ruling only as it applies to California or to use it to issue a broader ruling regarding the constitutionality of gay marriage nationwide. In other words, this might or might not be the definitive Supreme Court ruling regarding same-sex marriage.

Nonetheless, the tide is turning.

It is interesting that the two attorneys joining to argue against Prop 8 before the court of appeals were Theodore Olson and David Boies. In 2000, Olson had represented George W. Bush and Boies had represented Al Gore in the Supreme Court case that ultimately determined who won presidency that year.

This time, they were on the same side.

Boies had an insightful take on the prospects for legalizing same-sex marriage. He thinks it's inevitable at some point but that it's also important to fight the battle now to extend the right of marriage to gays and lesbians, especially those who are nearing the end of their lives.

A younger generation, those who have grown up with openly gay friends and family members, have no objections to gay marriage, Boies said. Twenty years from now, people will be scratching their heads, wondering what the uproar was all about. It will seem as quaint as the legal quarrels over divorce and mixed-race marriages.

But Boies says we shouldn't just wait for the public to acquiesce. Like any crusade for civil rights, this has to be a battle to change people's hearts and minds - now.

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