The California Supreme Court has overturned that state’s prohibition on homosexual marriage, which means that homosexual marriage is expected to become a reality in California within about thirty days. California would be only the second state in the union, following Massachusetts, to legalize marriage between same-sex couples.
In my 2005 opinion piece, A Compromise on Gay Marriage, I expressed my views on this issue from the civil perspective—views I still hold today. While my personal moral and religious opinion is that homosexual activity is sinful, I do not believe that the government should necessarily be involved in policing the civil arrangements that consenting adults make between one another. I think that a universal ‘civil union’ status should replace civil marriage and be open to any combination of two or more consenting adults. In this way, the civil aspects of marriage would become the purview of the state, and the moral aspects would become the purview of the religious communities. Churches and other religious communities could refuse to recognize or officiate homosexual marriages if they are antithetical to their beliefs, but the state would engage in no such discrimination and leave moral judgements to the individuals and the churches.
Having said that, any change in the definition of civil marriage must come from the people—whether directly by referendum (which can be done in California) or indirectly through the legislature. Judges do not have the constitutional authority to add a right to homosexual marriage to the state constitution. Thus, while I’m not particularly concerned about the outcome, I am concerned about how we arrived at it. It is the judiciary’s responsibility to interpret the law, not to extend it.