Jeffrey Rosen on the California Gay Marriage Ruling

…the Court went further still, holding that the California legislature’s remarkably progressive decision, in 2003, to expand its Domestic Partnership law to give gays and lesbians all the legal benefits of marriage itself represented an unconstitutional effort to demean gays and lesbians, rather than to treat them equally. That’s a possible reading of California’s effort to create a separate but equal category of civil unions, but it’s certainly not the only interpretation. In passing the Domestic Partnership Law, the California legislature said its goal was to provide essential rights to “all caring and committed couples, regardless of their gender or sexual orientation” and to “reduce discrimination on the bases of sex and sexual orientation.” And all three major presidential candidates–Barack Obama, Hillary Clinton, and John McCain–support civil unions but oppose gay marriage. Judicial decisions that blithely pronounce the basic positions of major political parties to be unconstitutional haven’t fared well in American history, as the Dred Scott decision shows. Of course, any pro-gay marriage decision by the California Supreme Court right before a presidential election would have created a firestorm. But by writing the most combative and legally expansive decision possible, the California Court just handed its opponents a golden opportunity.

Read it all as well as Tyrion’s Point’s commentary.