When the California Supreme Court ruled Thursday that the state Constitution's fundamental right to marry extends to couples of the same sex, it settled a legal question and opened some critical political ones.
With a proposed constitutional amendment that would overturn the court's decision likely to qualify for the November ballot, will a high turnout of social and religious traditionalists put usually Democratic California "into play" in the presidential election?
Will the California court's ruling trigger the sort of national reaction that followed a similar ruling by Massachusetts' high court four years ago, a backlash that GOP strategist Karl Rove successfully fashioned into a wedge issue Republicans used to pry several key states into George W. Bush's column?
On Friday, the Wall Street Journal's reliably conservative editorial page predicted precisely that. "Just when the news was filling with stories about a Republican Party gasping for air," the paper gleefully wrote, "along comes the California Supreme Court's 4-3 decision yesterday legislating gay marriage. The GOP certainly hasn't done anything to deserve such luck."
There are, however, reasons to think that this election will be different from 2004. For one thing, John McCain doesn't have the kind of position on same-sex marriage likely to attract the absolutists on the religious right. McCain, like Barack Obama and Hillary Rodham Clinton, is personally opposed to same-sex marriage but -- like both Democratic candidates -- thinks the matter should be left to the states. Nor does McCain have the ability to speak to religious conservatives in pietistic code the way Bush does. Similarly, he lacks a campaign aide steeped in evangelical politics, as Rove was.
The larger question is that, with the exception of Florida, most of the states likely to react to the California ruling responded to Massachusetts four years ago. Twenty-seven states adopted bans on same-sex marriage; 11 adopted its prohibition during the last presidential election and went for Bush over John Kerry.
Here in California, it's hard to see McCain making much hay over a state court ruling on a question he insists should be left to the states. He'll also have a hard time getting much traction by supporting a ballot measure that moderate Republican Gov. Arnold Schwarzenegger says he'll oppose.
Then there's the matter of demographic change. Obama's candidacy has drawn an unprecedented number of young voters into the process, and every reliable poll shows that younger Americans, whatever their regional or religious background, overwhelmingly regard marriage for gays and lesbians as a civil right. Overall, less than 43% of the electorate regards gay marriage as somewhat or very important in this campaign. While the same-sex marriage ban struck down by the court Thursday was approved by 61% of the voters in 2000, a 2006 Field poll found that the percentage of Californians who disapproved of gay marriage had declined to 51%.
It's a pretty clear trend across the country. In part, that's because the success of civil unions and partnerships has let millions of Americans see their gay and lesbian neighbors functioning in relationships that are marriages in everything but name.
All these reactions are calculated according to a campaign time frame that, nowadays, parses itself in media-driven nanoseconds. But it's the longer-term reaction that will be most consequential. Over the past half a century, there have been two towering examples of what critics like to label "judicial activism" -- the U.S. Supreme Court's 1954 ruling in Brown vs. Board of Education that began the dismantling of Jim Crow segregation laws, and the 1973 Supreme Court decision in Roe vs. Wade that legalized abortion. Now they'll add California's In re Marriage Cases.
Admirers of those opinions esteem them as exercises in judicial realism rather than activism, arguing that the justices cut through the deadwood of impacted tradition and calcified precedent to bring the law into conformity with a dynamic nation's evolving conscience. These analysts are inclined to agree with Justice Oliver Wendell Holmes Jr. that the life of the law is experience, and with the philosopher Michael Walzer that the American notion of moral progress consists not in the creation of rights but in their extension to those to whom they previously have been denied. (It's also worth noting for the political and historical record that the authors of all three decisions -- Chief Justice Earl Warren in Brown, Justice Harry Blackmun in Roe and California Chief Justice Ronald George in In re Marriage -- were Republican judges appointed by Republican chief executives.)
Neither view, though, offers an entirely satisfactory explanation as to why Brown now is universally accepted by serious-minded people, while Roe has come to be regarded as the opening salvo in that amorphous struggle known as the culture wars, a decision to which a substantial minority of Americans from all walks of life remain utterly unreconciled.
Part of the explanation may have to do with the essence of the questions at issue. Jim Crow was an entrenched system in the South and a de facto reality throughout much of the North when Warren wrote his opinion. Two successive presidents would have to call on federal troops to give his ruling legal force in the states of the old Confederacy. That's no small thing, but the fact remains that the country as a whole was ready to change its mind about race, ready to be persuaded by the court, by the heroism of the civil rights movement and by the experience of real life. As racial barriers fell, people understood that equal rights and opportunities were making the country a better, more just place to live. The Brown decision won acceptance because its benefits were evident to anybody with eyes.
How you feel about Roe, on the other hand, ultimately turns on a question -- when does life begin? -- that, so far, cannot be resolved in the world of observable phenomenon from which we derive mind-changing experience. Beyond that question, moreover, is an even more fundamental one about when "life" of a general or potential sort becomes "life" in the individual sense the law can recognize. Barring a biological advance that settles the matter, people must rely on theology, philosophy or intuition rather than experience. It's a situation in which a fair-minded decision essentially involves where to assign the benefit of the doubt. Thus, the never-ending disagreement over abortion.
So, will In re Marriage ultimately be another Brown, or another Roe?
Demographics -- the numbers of young Americans who believe same-sex marriage is a civil rights issue -- and the widespread acceptance of civil unions by people of all ages strongly suggest the former. From now until November, though, there will be no shortage of people hoping that the California Supreme Court has opened a new front in the culture wars.