Bench Memos

NRO’s home for judicial news and analysis.

California Dreamin’


The New York Times’s “analysis” of the political impact of yesterday’s same-sex “marriage” ruling is not only wrong, but schizophrenic. Reporter Adam Nagourney says that all three candidates — McCain,Obama, Clinton — “are pretty much in agreement”. “All oppose” what he calls “gay marriage”, and all say “that same-sex couples should generally be entitled to the legal protections afforded married couples”. And all three think it is a matter for the states to decide.

What’s wrong with this? For openers, Nagourney declines to notice the huge pink elephant in the room: the federal judiciary. Anyone who has read the Lawrence decision — and maybe anyone who has heard of it — can tell you that the Supreme Court is on the cusp of holding that constitutional norms of equality and liberty require legal recognition of same-sex “marriage.” The next president almost certainly will make an appointment to the Court, and thus have the chance to nudge the Court — one way or the other — off the cusp. If that president is named Obama or Clinton, there is an astronomically greater chance that by 2013 the Supreme Court will impose “gay marriage” nationwide. That’s already a fateful “disagreement” among the Big Three. And, so much for “agreement” that the matter be left to the states.

Nagourney then contradicts his own claim of unanimity. He says that McCain supports “marriage ‘between a man and a woman’ and opposes any legal recognition of a same-sex relationship.” Let’s call “legal recognition of a same-sex relationship” support for “civil unions.” In that case, McCain opposes civil unions, while Obama and Clinton support them, which contradicts Nagourny’s opening paragraph: “all” say “that same-sex couples should generally be entitled to legal protections afforded married couples.” Or, perhaps, it depends upon what the meaning of “generally,” generally is..

There’s more to lament in Nagourny’s unfortunate “analysis.” Perhaps the central message of the California ruling is this: once a state decides to treat “gay” relationships as marriage in all but name (by predicating the same legal benefits and privileges of the “gay” partnership as those incident to marriage), there is no coherent (reasonable, constitutionally legitimate) basis upon which the state may then withhold the name “marriage” from “gay” relations. This is a difficult question, and one does not have to be a judicial activist to think that it deserves a serious answer. The central lesson of the California case, then, may well be that Clinton and Obama — but not McCain — have already conceded too much to same-sex couples (by supporting civil unions) to coherently oppose same-sex “marriage.”


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