Originalmente no Economist, roubado do Para lá de Bagdade.


In 1948, California's Supreme Court ruled that the state's ban on interracial marriage violated the equal-protection clause of the United States constitution. Advocates of the racial ban had asserted that, because historically blacks had not been permitted to marry whites, the statute was justified. The court, Judge Kramer recalled, had rejected this argument: “Certainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply such [constitutional] justification.” In other words, tradition is no excuse.

“One does not have to be married in order to procreate, nor does one have to procreate in order to be married.” Indeed, whereas heterosexual couples who are unable or unwilling to have children are free to marry, “same-sex couples are singled out to be denied marriage.” The state can legitimately, for health reasons, ban incestuous marriages, but the judge, citing the 1948 state Supreme Court judgment, said it cannot discriminate on the “arbitrary classifications of groups or races”.

But what if homosexual couples are given “marriage-like” rights by California's new domestic-partnership law—proof, says Mr Lockyer, that a ban on gay marriage is not discrimination? Judge Kramer's response, referring to a 1952 Supreme Court ruling on segregated schools, is dismissive: “The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts—separate but equal.”