The Right Way to Legalize Gay Marriage

Let the people decide, not the courts


When you set out to do something important, it doesn't matter just whether you achieve it—it also matters how. That's why Hank Aaron is a baseball immortal for breaking the career home run record, while Barry Bonds, who did the same, is a pariah.

The maxim holds true in public policy as well as sports. Same-sex marriage is a noble goal designed to serve both individual freedom and social health. But a wholesome end doesn't justify every possible means.

Massachusetts, California and (just this month) Connecticut have all legalized gay marriage the wrong way—by impatient, unpersuasive judicial decrees. Now California voters have the chance to do it the right way—by the free consent of the governed.

The Connecticut Supreme Court decision that came down on Oct. 10, which echoed the California ruling, was a reminder of the flimsiness of the case for judicial imposition of same-sex marriage. The justices said depriving gays of the right to marry would deprive their children of the "immeasurable advantages that flow from the assurance of a stable family structure." But the state had already provided those adults and their children exactly that, in a 2005 law giving gays the legal benefits of marriage under the rubric of civil unions.

Under state law, civil unions are, as everyone agrees, substantively indistinguishable from what heterosexuals get. The trial court in this case found that the effect of the civil union law "has been to create an identical set of legal rights in Connecticut for same-sex couples and opposite-sex couples." The only difference is the name.

But that didn't particularly impress the state Supreme Court, which says the law deprives homosexual couples of the equal protection of the law. Far from advancing their equality, it concluded, the legislature "has relegated them to an inferior status." And: "There is no doubt that civil unions enjoy a lesser status in our society than marriage."

Really? No doubt at all? As one dissenting justice noted, expressing his own doubt, "what is perceived or considered to be an inferior status in a given society may not be readily apparent when the subject is a brand-new institution." It may be that over time people will come to regard civil unions as a pale imitation of marriage. The alternative is they will come to regard them as the full, though distinct, equivalent.

It's a comforting cliche that separate means unequal, but we know better. No one thinks that when a university fields sex-segregated sports teams, it brands women as inferior.

To say that gays should have access to civil unions rather than marriage could mean society regards them as unworthy of true matrimony. Or it could mean society sees same-sex unions not as worse or better than marriage but simply different, and thus properly designated by another name.

Which will it be? At this early stage, the only reasonable answer is: We. Don't. Know. And there is only one way to find out: by giving civil unions some time to operate. The Connecticut court, like its Golden State counterpart, pronounced them inadequate without bothering to acquire the valuable knowledge that would flow from a real-world test.

But the question before California voters is not whether the court correctly interpreted the equal protection clause of the state constitution. It is whether gay couples should be deprived of the right to marry that they gained a few months ago. And the best course would be the one spurned by the Supreme Court: to let the new policy remain in effect long enough to judge its value.

It's not as though any heterosexual couple loses anything from the change. And the effect of letting gays wed is bound to be healthy for everyone, since marriage fosters long-term relationships, discourages irresponsible sexual behavior, and offers a tested means of protecting children.

Now that gay marriage is in place in California, the public might as well see if it lives up to the promises of supporters or the warnings of opponents. If the latter prove right, there will always be time to pass the sort of measure that is on the ballot this year. And if not, Californians will be glad they held off.

A few state supreme courts have decided they don't need the evidence of experience to make their judgment on same-sex marriage. That's no reason voters should make the same mistake.