EQUALITY'S WINDING PATH

Editorial from The New York Times:


Amid the soaring oratory about the presidential election, it was Barack Obama who put it best late Tuesday night. “That’s the genius of America, that America can change,” he said. “Our union can be perfected.”

But as Mr. Obama’s victory showed, the path to change is arduous. Even as the nation shattered one barrier of intolerance, we were disappointed that voters in four states chose to reinforce another. Ballot measures were approved in Arkansas, Arizona, Florida and California that discriminate against couples of the same sex.

We do not view these results as reason for despair. Struggles over civil rights never follow a straight trajectory, and the ugly outcome of these ballot fights should not obscure the building momentum for full equality for gay people, including acceptance of marriage between gay men and women. But the votes remind us of how much remains to be done before this bigotry is finally erased.

In Arkansas, voters approved a backward measure destined to hurt children by barring unmarried couples from becoming adoptive or foster parents. In Arizona, voters approved a state constitutional amendment to forbid same-sex couples from marrying. Florida voters approved a more sweeping amendment intended to bar marriage, civil unions and other family protections.

The most notable defeat for fairness was in California, where right-wing forces led by the Mormon Church poured tens of millions of dollars into the campaign for Proposition 8 — a measure to enshrine bigotry in the state’s Constitution by preventing people of the same sex from marrying. The measure was designed to overturn May’s State Supreme Court decision, which made California the second state to end that exclusion of same-sex couples. Massachusetts did so in 2004.

The firmly grounded ruling said that everyone has a basic right “to establish a legally recognized family with the person of one’s choice,” and found California’s strong domestic partnership statute to be inadequate.

We wish that Tuesday’s vote of 52 percent to 48 percent had gone the other way. But when those numbers are compared with the 61 percent to 39 percent result in 2000, when Californians approved the law that was overturned by their Supreme Court, it is evident that voters have grown more comfortable with marriage equality.

Progress is evident, too, in the fact that since 2000, the California Legislature has twice passed a measure to let gay couples marry — only to be vetoed by the Republican governor, Arnold Schwarzenegger. To his credit, he opposed Proposition 8. We suspect that if California holds another referendum on the issue down the road, it will yield a different result.

Not all the results for same-sex marriage were negative. In Connecticut, voters rejected a proposed constitutional convention through which opponents of same-sex marriage wanted to overturn a recent decision by the Connecticut Supreme Court, on sound equal protection grounds, allowing same-sex couples to marry.

Far from showing that California’s Supreme Court was wrong to extend the right of marriage to gay people, the passage of Proposition 8 is a reminder of the crucial role that the courts play in protecting vulnerable groups from unfair treatment.

Apart from creating legal uncertainty about the thousands of same-sex marriages that have been performed in California and giving rise to lawsuits challenging whether the rules governing ballot measures were properly followed, the immediate impact of Tuesday’s rights-shredding exercise is to underscore the danger of allowing the ballot box to be used to take away people’s fundamental rights.