A modest victory, at best

Conservatives are celebrating Wednesday's state Supreme Court decision, upholding Washington's Defense of Marriage Act (DOMA), as an apparent defeat for gay matrimony. The celebration, however, is out of proportion to what is at best a modest victory. For traditionalists, there is as much to be dismayed about as there is to applaud.

Under a headline declaring, "Washington state Supreme Court gets it right," Family Research Council President Tony Perkins issued a glowing statement: "We praise the Washington Supreme Court for demonstrating judicial restraint." When the hooting and hollering subsides, three discouraging observations will have to be confronted.

First, it's true the court took the view that judges properly only read and interpret law. They don't make it up to suit their own personal beliefs. And while that basically conservative judicial philosophy animates the lead opinion for the majority by Justice Barbara Madsen, the majority of 5 to 4 was as bare as it could be. It could easily have gone the other way.

Which means that our state's highest court is not strongly convinced that it is a court at all, as opposed to a super-legislature. Surely, for conservatives, that's not something to celebrate.

Second, even the justices voting to uphold DOMA indicated that they are not at all averse to gay marriage. Their words are practically an invitation to state legislators to overturn the law protecting traditional marriage, or to voters to elect new, liberal legislators.

As Madsen wrote, "We see no reason, however, why the Legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.

"It is important to note that the court's role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be."

No one wants to be seen as a purveyor of heterosexist bigotry, which is how Justice Mary Fairhurst described the majority opinion in her dissent, decrying "blatant discrimination against Washington's gay and lesbian citizens." Madsen all but pleaded with the public to appreciate that the court's majority, like its minority, would not endorse the traditional definition of marriage.

Is this a judicial statement for conservatives to clasp to their heart?

Third, the opinion for the majority makes clear how poorly understood the best reason is for defending marriage against novel variations. Madsen explains that, "The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by children's biological parents."

What a weak rationale that is. Obviously, two gay men with a marriage license, men who likely wouldn't have procreated anyway, don't undermine other people's procreating. And how do they, merely by receiving the license, undermine my ability to raise my children with my wife? In fact, there's a better reason for DOMA.

It compares gay marriage to a broken window on a city street. Civilization is exceedingly fragile. One broken window is an invitation to more broken windows, more vandalism, descending ultimately to chaos. Smart city governments thus act quickly to check even minor acts of incivility.

Marriage is our most fragile civilized institution. Since the 1960s, the ancient ideal of a child being raised by his parents has been greatly weakened.

For young couples, marriage no long seems the obvious choice. There is hardly a stigma anymore to unwed domestic relationships, nor to fathers skipping out on mothers, nor to mothers having children without a father's ever having been in the household picture.

Yet, the need of a child for a mother and father remains.

Nothing in the tableau of two particular men or two women getting married in itself threatens a particular traditional family. But every cultural development that changes the definition of marriage weakens the concept of marriage with children as a set, fixed ideal. It threatens to speed up the process of cultural breakdown that seems headed in the direction of making marriage an anachronism.

In that sense, Wednesday's court ruling is far from being a victory for tradition. While protecting one tradition-friendly law, its overall message favors the novelty of gay marriage.

From this perspective, the decision itself looks like another broken window on a city street. While posing no danger on its own, it may hasten the coming of more significant mischief.

David Klinghoffer, who lives on Mercer Island, is a columnist for the Jewish Forward and the author of "Why the Jews Rejected Jesus: The Turning Point in Western History" (Doubleday).