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Joan Garry Headshot

Out of the Mouths of "Activist" Judges

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This afternoon, the California Supreme Court recognized that same sex couples have a constitutional right to marry under the State Constitution.

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.

I'm not a lawyer nor do I play one on television but this quote is simple and to the point. And of course it makes all the sense in the world. The right to form a family is a basic civil right. So basic. So right.

But I haven't even gotten to the really good part yet.

We all know that in our societal debate about this issue, it is the word "marriage" that trips many people up. It trips up political candidates, it trips up conservatives, it even trips up my mother and she believes Eileen and I should have equal treatment under the law. There is something about that word.

My four new best friends, the four California Supreme Court justices who ruled for the majority -- they get that there is something about the word too. Have a read:

...The exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children... Because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship..."

Did you get that? The word "marriage" IS important. Calling it something else implies that it is not of comparable stature or equal dignity. Calling it something else just for same sex couples implies that the parallel institution is a mark of second class citizenship. (Note to self: send copy of these last two paragraphs to Clinton and Obama campaigns)

The road ahead in California will not be easy. The right wing is moving toward a constitutional amendment. The media machine on the right will be out in force and in the days ahead with their standard sound bite -- they will dismiss the decision as the result of the work of these 'activist judges."

But don't be fooled.

When I talk to my eighty year old mom tomorrow morning and we rehash the day's events (as we do every morning), I'll point out that the California Supreme court's reputation is a conservative one. I'll point out that they have been strong in upholding the death penalty. I'll point out that they frequently rule in favor of business interests. I'll point out that three of the four justices who ruled for the majority were appointed by Republican governors.

So what's the moral of the story today? We are reminded that when we make a strong case (thank you to NLCR, Lambda Legal and the ACLU) in front of fair minded judges, judges who are doing their jobs, judges who, regardless of who appointed them, evaluate cases with integrity , we win. And we are all reminded that "separate but equal" has never cut it in America. Because "separate" is simply not equal at all.