Gay marriage legal in California

So says the state Supreme Court, in a 4-3 ruling. This is huge, really huge. California is the largest state.

I don't have much to say about this that I haven't already said many times before. The battle for cultural conservatives has been lost. It was lost when the Republican Congress repeatedly failed to pass the Federal Marriage Amendment -- which John McCain opposed, note well, and which George W. Bush barely lifted a finger to push for, even though Rove cynically goosed GOP turnout in 2004 on the issue -- and send it to the states for ratification. That horse has left the barn. True, it is possible that states may pass amendments to state constitutions that state Supreme Courts could not overturn. But that will just be a delaying tactic. Ultimately, the US Supreme Court will decide this one, and culturally, conservatives are losing this one.

And you know what? Don't blame gays. Blame straights. We are the ones who decoupled sex and marriage from transcendent meaning, and turned it into merely a contractual arrangement between consenting individuals. On what basis will the state now limit marriage to only two people? That's the next frontier.

And what about religious liberty? I refer you again to Maggie Gallagher's very important essay about the irreconcilability of full gay civil rights with religious liberty:

For scholars, these will be interesting times: Want to know exactly where the borders of church and state are located? "Wait a few years," Picarello laughs. The flood of litigation surrounding each point of contact will map out the territory. For religious liberty lawyers, there are boom times ahead. As one Becket Fund donor told Picarello ruefully, "At least you know you're not in the buggy whip business."

Picarello is a Harvard-trained litigator experienced in religious liberty issues. But predicting the legal consequences of as big a change as gay marriage is a job for more than one mind. So last December, the Becket Fund brought together ten religious liberty scholars of right and left to look at the question of the impact of gay marriage on the freedom of religion. Picarello summarizes: "All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming."

These are not necessarily scholars who oppose gay marriage. Chai Feldblum, for example, is a Georgetown law professor who refers to herself as "part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country." Marc Stern is the general counsel for the center-left American Jewish Congress. Robin Wilson of the University of Maryland law school is undecided on gay marriage. Jonathan Turley of George Washington law school has supported legalizing not only gay marriage but also polygamy.

Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.

By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.

As goes California... . We live in interesting times.

Can I just say one thing to Republican politicians? Don't insult me this election year with your huffing and puffing against gay marriage. I don't believe you anymore.

UPDATE: This reaction from Maggie Gallagher:

"California's supreme court has just ruled that the 62 percent of Californians who voted for marriage as the union of husband and wife are just bigots. But thanks to the 1.1 million Californians who signed petitions to get a constitutional amendment on the ballot this November, activist judges will not have the last word in California, California voters will," said Maggie Gallagher, President of the Institute for Marriage and Public Policy (www.marriagedebate.com). "Most Americans understand that marriage is not bigotry. It is common sense -- unions of husband and wife have a unique status in law and culture because they really are different from other kinds of unions including in this way: they are uniquely necessary because they are the unions that both make new life and connect those children to their own mother and father," notes Gallagher.

I didn't know there was a petition drive to get the constitutional amendment on the ballot in California. Does it have a prayer?