The 4-3 decision of the California Supreme Court (3-3 among the six Republican members and 1-0 among the sole Democratic member) that the equal protection principle requires the allowance of gay marriage has national and international impact. It is the first court in the nation to reach this conclusion, and I am confident it will be far from the last.
California, of course, is not just any state. It has far more people than other other state, and many times the total population of the only state with a functioning gay marriage system, the Commonwealth of Massachusetts.
California's ending the ban on interracial marriage foreshadowed the U.S. Supreme Court's doing likewise, and the same is possible for gay marriage.
I first heard of the concept of gay marriage as a serious possibility to be achieved when I read about this obscure Hawaii lawyer, Dan Foley, not affiliated with any gay organization, who had agreed to take the case of Baehr V. Lewin, consisting of several gay couples seeking to marry, after all lawyers contacted with experience in gay rights litigation had turned it down as completely impossible to win. Not having the experience to be discouraged, he won some rounds. including a favorable Hawaii Supreme Court decision in 1993, but led Hawaii to ban gay marriage out of a fear of the effects of gay marriage.
(As a part-time law student at Widener University from 1989 through 1993, I was aware of many law journal articles arguing in support of gay marriage and other expansion of gay rights. Top law students and legal academics were well ahead of the curve here, but the broader public, including gay activists, was slow in seeing significance to this.)
Hawaii's action led to similar actions in Pennsylvania and many other states. I was very active in the Pennsylvania debate on gay marriage when it took place on June 28, 1996.
The Journal of the House of Representatives for that day reminds me that I interrogated the sponsor of gay marriage ban legislation at great length, and argued that the legislation was quite likely unconstitutional.
I quoted excerpts from the then-recent Evans v. Romer U.S. Supreme Court decision invalidating a Colorado law banning localities from prohibiting discrimination against homosexuals.
"Equal protection of the laws is not achieved through the indiscriminate imposition of inequalities, " the U.S. Supreme Court said in that case. "A state cannot deem a class of persons a stranger to its laws."
"I personally intend to vote against this bill, because I have doubts about its constitutionality, " I said. "I have doubts as to whether it meets the goals set forth by the Supreme Court...I do not believe that the institution of marriage is in any meaningful sense affected....I do not believe any children are going to be corrupted by the fact that homosexuals are living together and call themselves married, and therefore, I personally am voting against this piece of legislation."
Fifteen others, all but one Democrats--nine of whom are still in the House a dozen years later--joined me in voting against this legislation. 177 House members voted for it, eight did not vote, and 2 were excused from voting.
An additional 13 other state house members--all Democrats--had voted previously with the 16 no votes to declare the legislation unconstitutional and hence void. After that vote, a Republican member said her voting switch had malfunctioned and she intended to vote to declare it unconstitutional. She was the one Republican to vote against it.
There has been no litigation challenging the constitutionality of Pennsylvania's ban on gay marriage, and the moderation/conservatism of Pennsylvania's Supreme Court may continue to discourage such a challenge. Pennsylvania federal district courts and the 3rd Circuit Court of Appeals are probably more conservative now than they were then.
But the California decision--if not overturned by a referendum--appears likely to be highly influential with courts, attorneys, and legislatures around the country in the years to come. It is well written, sweeping in scope, and broad in its effects.
More and more states will find judicial or legislative ways to legalize gay marriage--or their sometimes more acceptable but weaker cousin civil unions--and the cause of recognition of the equality of gays, lesbians, and transgender people will be enhanced.
In 1969, the great but then retired baseball manager Casey Stengel commented upon the rise of the New York Mets from weak expansion team in 1962 to World Series winners in 1969. "They came along slow but fast," Stengel said.
That is the way social movements generally come along--painfully slow for their advocates, but tremendously fast for opponents and disinterested observers.
Those who opposed gay marriage and civil unions in the past are going to be living with them long into the future. Traditions are always subject to change.