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sobre o casamento gay, no Real Clear Politics

And, as a New York Court of Appeals judge cited by the California court
majority noted, fundamental rights "cannot be denied to particular groups on the
ground that these groups have historically been denied those rights." If history
and tradition had constrained us, equal rights for African-Americans would never
have become law.
But to find a constitutional right to gay marriage, the
California majority chose to argue that the state's very progressive law
endorsing domestic partnerships for homosexuals -- it grants all the rights of
marriage except the name -- was itself a form of discrimination.
This is odd
and potentially destructive. As Justice Carol Corrigan argued in her dissent,
"to make its case for a constitutional violation, the majority distorts and
diminishes the historic achievements" of the state's Domestic Partnership Act.
That's true, and in many states, it will take years for a political and
legal consensus in favor of gay marriage to develop. In the interim, civil
unions or domestic partnerships are the best hope homosexuals in these states
have for some form of legal recognition for their relationships. The danger is
that foes of civil unions will use the court's own logic to argue that such
arrangements are not a political halfway house but lead inexorably to gay
marriage. It would be unfortunate if California's breakthrough were used to
stall significant if more modest progress elsewhere.
There is a complicated
interaction between court decisions and the working of democratic politics. On
the one hand, there are times when only the courts can vindicate the rights of
minorities. On the other hand, rights are more firmly rooted when they are
established or ratified by democratic majorities. In the case of gay marriage in
California, a majority could still overturn this decision by amending the state
Constitution to ban same-sex marriage -- and a proposition to this effect is
likely to appear on this fall's ballot.
Corrigan stated flatly that she
personally supports gay marriage but argued that in a democracy, "the people
should be given a fair chance to set the pace of change without judicial
interference." She added: "If there is to be a new understanding of the meaning
of marriage in California, it should develop among the people of our state and
find its expression at the ballot box."
The good news from California is that
the people will ultimately decide the question, and I hope that a reaction
against "judicial activism" does not hamper the marriage equality movement. As
for most other states, domestic partnerships and civil unions will come long
before gay marriage does. Nothing the California court majority said should
deter these states from recognizing that gays and lesbians, no less than
heterosexuals, have a right to the community's recognition of the seriousness of
their commitments.