Schrag: Why the Marriage Exclusion Act May be Defeated in November in California

Either way that vote turns out, moreover, there's not much doubt that in a democracy priding itself on equal rights, and with a new more tolerant generation joining the body politic, time is probably running out on bans on same-sex marriage.

As the court held, given the importance of "the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples." That's real marriage protection.

In their objections to the decision, many conservatives, among them Justice Marvin Baxter, one of the dissenters, attacked the court for its judicial activism.

The court, Baxter wrote, "not satisfied with the pace of democratic change, now … substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves."

What the critics failed to note is that six of the court's seven members, including Chief Justice Ron George, who wrote the court's elegant opinion, were appointed by Republican governors.

The opinion, much of which rests on the moral and legal precedent of the landmark 1948 California Supreme Court decision striking down the state's ban on interracial marriage, acknowledges the centuries-old tradition of heterosexual marriage but contends that as in the ban on miscegenation "history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. …

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation – like a person's race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.

"We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."

San Francisco Mayor Gavin Newsom, who, in an effort to strengthen his own hometown base started this round in the battle over gay marriage, took a lot of heat and raised a lot of doubts – including my own – about the political consequences of his decision to marry thousands of people in 2004. Sen. Dianne Feinstein, among others, put some of the blame for the Democrats' defeat that year on Newsom's decision.

As politics, Newsom's marriages were premature in 2004. But if the trends continue, and voters defeat the November marriage exclusion act, some future generation may well see Newsom, the California justices and the voters as visionaries.

Peter Schrag is the former editorial page editor of the Sacramento Bee. This article is published with his permission.