(if I were the) King of the Forest

The ruling required no novel legal theories or new constructions — no “activism” (as opposed to “action”) — regarding either statute or constitution; rather it was a perfect model of the traditional role of jurisprudence and separation of powers: to uphold the rule of law by holding the executive to the a priori terms of its text. It was, in fact, anti-”activist” in the best conservative tradition: the court, which we all suspect is sympathetic to the cause of gay-marriage, nevertheless declined to re-interpret the law or to allow an exception to it in the name of achieving the desired outcome.

If a state chooses to live up to the more modern understanding of its obligation to fairness and equality under the law by creating a gender-neutral form of civil union, that is certainly just and arguably wise. If a same-sex couple, having been properly joined by such a state-sanctioned civil union, chooses to call themselves “married” some may contradict them but no one can or should stop them. If a church chooses to sanctify their union and call it “marriage” in the eyes of God, that is their right. If members of their community choose to honor the union with the same designation, then the communal sense of marriage will begin to evolve. If enough people in enough communities defer to the new usage then the traditional concept of marriage will begin to lose its name and, our ability to conceptualize it thereby undermined, will slowly fade from our cultural memory, just as gayness did decades ago. And we will be culturally poorer for that even as we are culturally more inclusive.

But that is a transformation that should be decided individual by individual in a cultural dialog over years or generations, in which some are free to preserve the old concepts and others to embrace the new until the weight of cultural consensus removes the last holdouts – or never does. It is not a transformation that should be enforced by political power.

In the beginning of 1997 the government of San Francisco initiated a new policy: henceforth, all organizations which have any contractual relationship with the city must offer the same benefits to ‘domestic partners’ as they do to spouses. For the uninitiated, a ‘domestic partner’ is someone with whom you have a long-term, committed, live-in (but not legally-binding) relationship; in San Francisco this typically (but not necessarily) means a gay relationship for which a formal marriage is simply not available.
The policy is a noble attempt to reward loving, committed, stable relationships, whether or not they fit the traditional mold. It is also an act of hubris, perhaps even rising to the level of cultural imperialism: the law seeks to extend this policy beyond San Francisco to wherever any city contractor operates, from San Mateo, CA, to Atlanta, GA, to every major airport in the world (United Airlines, which has a major hub in San Francisco, is thereby considered to have a city contract, and was notified it must comply across the board), and even to the Vatican (the catholic church, which ducked the issue by offering benefits to “any member of an employee’s household”, operates much of the city’s social safety net). Imagine the citizens of Little Rock or Des Moines trying to enforce a ban on benefits for domestic partners in San Francisco…