The Daytona Beach News-Journal: Gay Marriage- Elightenment in California; dark clouds in Florida

Gay Marriage
Enlightenment in California; dark clouds in Florida
May 20, 2008

Opponents of gay marriage make compelling arguments: Marriage has traditionally been between a woman and a man. State supreme courts that strike down gay-marriage bans, as in Massachusetts in 2004 and in California last week, are pre-empting lawmakers and the people they represent by imposing social policy. It's through the legislative process that most states have approved of civil unions that grant gays and lesbians the same civil rights as heterosexuals.

But every one of those arguments misses a fundamental point. Under the U.S. Constitution, equal rights and equal protection are not matters of interpretation according to tradition, popular will or even pragmatic compromise, which is what the civil-union argument is based on. Equal rights means equal rights -- not equal with caveats, not separately equal, not equal until deemed uncomfortably so. Equal protections apply to human beings regardless of creed, color or sex. The country learned to extend equal protections for all creeds and colors. It hasn't yet learned to extend that protection to sex. The exceptions in Massachusetts and California should be the rule.

California's Supreme Court was right to compare extending marriage rights to gays and lesbians to the right of blacks and whites to marry each other -- a right first recognized by an American state shamefully late, in 1948 (California), and not recognized by the U.S. Supreme Court until 1967. Some interpretations of religion, some ideas of tradition and, most of all, sheer prejudice aside, there never was a good reason to keep whites and blacks from marrying, although for centuries offensive conventions and equally repugnant legal reasoning dressed up the bans as natural law.

Just as bans on miscegenation are now seen for what they were -- evidence of past ignorance finally unlearned -- bans on gay marriage will, one day let us hope, be seen in the same light. California and Massachusetts aside, they already are in Canada, Belgium, the Netherlands, South Africa and Spain.

Florida, meanwhile, insists on treading backward. The November ballot will feature a proposed amendment to the state constitution banning gay marriage, even though state law already bans it, and the Federal Defense of Marriage Act, in effect since 1996, gives states the right to deny recognition of gay marriages executed in other states. The amendment would not prohibit civil unions or laws that confer some rights and employment benefits to individuals in gay unions. It would only, in the discriminatory words of the yes2marriage.org, organization pushing the ban, forbid laws designed "to treat unmarried relationships as marriage or the substantial equivalent thereof."

In other words, it would ban treating gays and lesbians as equally as heterosexuals, without reserve or conditions. Unmarried heterosexuals could be facing legal discrimination as well.

The reasoning behind the gay-marriage ban sounds as compelling as miscegenation laws once seemed. The motive is no less repugnant.

"The right to marry," California Chief Justice Ronald M. George wrote for the court's majority last week, "represents the right of an individual to establish a legally recognized family with a person of one's choice and, as such, is of fundamental significance both to society and to the individual." Compare those words to those of Chief Justice Earl Warren in Loving v. Virginia, the case that overturned Virginia's ban on interracial marriage: "Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Organizations like yes2marriage.org (formerly Florida4marriage.org), propose not only to define marriage for everyone, but also to ensure that the state will infringe on one of the most fundamental rights of being human. Which is just the point in the end: Opponents of gay marriage don't see gays and lesbians as equals. And come November, to vote for that misnomer of a "pro-marriage" amendment is to vote for a modern-day version of the separate-but-equal standard that once applied to blacks. It is to endorse the view that gays and lesbians are a lesser breed not worthy of equal protection.