Bessent: Prop 8 win feels like a step back

Alvin Bessent is a member of the Newsday editorial board.

Sometimes winning can feel a lot like losing. It did this week when Proposition 8, which ended the right to same-sex marriage in California, was ruled unconstitutional.

It was clearly a victory for that state's same-sex couples. It was a savvy win for their lawyers, and it may even help ensure that, in the soon to be seven states and the District of Columbia where such couplings are legal, people can't wake up one day and decide to take that right away.

But for those who, as a matter of principle, want to see this blatant, legally sanctioned discrimination against gay couples ended nationwide once and for all, it was a disappointing half-step on the road to freedom.

In the fight for constitutional rights, there is no virtue in incrementalism. Gay people, like everyone else, are guaranteed equal protection of the law. That has to include being able to marry pretty much who they choose, just like everyone else. The courts should affirm that right and spare advocates a grueling, state-by-state slog to win what the Constitution already provides for all.

Freedom by judicial fiat can be unsettling, even disruptive. Allowing same-sex marriage to work its way through statehouses would allow time for the public to grow comfortable with the notion. "The country isn't ready" was a sentiment heard often during the civil rights movement, when black people pushed for equal rights.

That's bogus. Nobody should have to endure second-class citizenship until others, whose rights are assured, grow comfortable with changing the status quo.

The Constitution serves a profound purpose. The founders understood that some rights are so fundamental to the character of the nation that they shouldn't be left to the vagaries of majority rule. Equal protection of the law is one of those rights.

Leaving same-sex marriage to the public resulted in a tortured history in California. In 2003 the legislature authorized domestic partnerships with all the rights, protections, benefits and obligations of marriage. But the law stopped short of calling those partnerships marriage.

In 2008, the state's top court ruled that the word matters and couldn't be constitutionally withheld. Then, within months, Prop. 8 was passed, amending the constitution to limit marriage to the union between a man and a woman.

Two years later a federal judge invalidated Prop. 8, ruling that the Constitution's equal protection clause requires extending the right to marry to same-sex couples. That's the decision that was before the three-judge appeals court panel that ruled this week. Unfortunately it took the path of least resistance, ruling that once a right is given, it can't be arbitrarily taken away.

There has to be "a legitimate reason for the passage of a law that treats different classes of people differently," the court said. "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples. The Constitution simply does not allow for laws of this sort."

That's important; voters shouldn't be able to decide, for instance, that blue-eyed people have no right to bear arms. But it's a narrow decision peculiar to the situation in California.

The court should instead have confronted the key civil rights issue here, which is: Do same-sex couples have a constitutional right to marry?

Until that unadorned question is presented to the U.S. Supreme Court, the constitutional rights of gay couples will continue to be subject to the whims of others.