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Why Last Year's California Pro-Gay Marriage Decision Remains a Net Positive for Gay Rights Even after Proposition 8:

Today's California supreme court decision upheld Proposition 8, a constitutional amendment that reversed that court's previous ruling holding that gay marriage was required by the state constitution. In previous posts (see here and here), I criticized the view that the success of Proposition 8 and similar initiatives in other states proves that pro-gay marriage court decisions set back the cause of gay rights more than they advance it.

It is now fairly clear that judicial rulings have helped the cause of gay marriage in the nation as a whole. But it's worth noting that the 2008 pro-gay marriage court decision was a net plus for gay rights even within California itself. After all, the court's decision upholding the validity of Proposition 8 also ruled that the 18,000 gay marriages that took place in California last year remain legally valid. That, of course, is 18,000 more gay marriages than would likely have occurred otherwise. Thirty-six thousand people who now can marry their partners of choice falls short of the ultimate objectives of the gay marriage movement. But it is nothing to sneeze at.

Even a pro-gay marriage decision that ultimately gets reversed can be a net benefit to the cause. That doesn't prove that the decision was legally correct. But it is a useful point to keep in mind in assessing the effectiveness of judicial power in promoting minority rights.

UPDATE: At Balkinization, Mary Dudziak and Andrew Koppelman also argue that the California struggle over same sex marriage remains a net plus for gay rights.

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