E.J. Dionne seems conflicted about gay marriage. He writes:
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.
The court found, correctly according to Dionne, that the domestic partnership law–however historically "progressive"–amounted to discrimination. Dionne ought to know that these two laws are different things (the progressive one about domestic partnership and the one about marriage). "Progressive" legislation aimed at circumventing legal discrimination (the denial of marriage to homosexuals for whatever reason) may be nice, but it still endorses the discrimination as legal (so goes, at least, the argument of the California court). So even if the legislation is, in its proper historical context quite "progressive", that fact hardly justifies maintaining it. Imagine had equal rights been handled this way–let's not call them "rights" but "things due" or something like that. Dionne's position, it seems to me, is just the obverse–the double negative as it were–of the argument he has just rejected. That is to say, the "progressiveness" of the legislation is no more reason to maintain it than the fact that such discrimination has long been lawful.