"Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president," the Obama campaign stated oh-so-carefully in response to this week's California Supreme Court decision striking down the state's ban on gay marriage. "He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage."The state court likened the policy Obama promotes to "separate but equal" racial segregation:
"[Affording] access to [marriage] exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation [domestic partnership], realistically must be viewed as constituting significantly unequal treatment to same-sex couples," the court wrote. Those challenging the law "persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state's creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School."Wittes, who supports gay marriage, criticizes the court for accepting the analogy offered by the litigants:
Somehow, we've confused progress on marriage equality with some of the most opprobrious episodes of our legal, cultural, and moral history. For having the guts to move forward while other states were passing nasty constitutional amendments depriving gays of any marital benefits, Californians stand condemned in their own courts for discrimination and in their own newspapers for bigotry.It's very common to say that judges are "confused," but I don't see the confusion. The California Court continued (PDF) in the paragraph Wittes quotes:
Few people, of course, really believe this. When we listen to Obama touting civil unions, we hear the progress that he urges, not some appeal to segregation. But it can't be progress when Obama suggests civil unions, and also progress when a court strikes them down as unconstitutionally discriminatory.
As plaintiffs maintain, [the Texas Law School case demonstrates] that even when the state grants ostensibly equal benefits to a previously excluded class through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.Obviously, the court knows that the state was trying to move toward equality here, and I don't hear it insulting the politicians who want to move only incrementally. It is saying that there is constitutional significance to the symbolism of creating a separate institution. It seems to me that the court was reasoning in a principled, doctrinal fashion and not leavening its decisionmaking with sensitivity toward political realities.