The other big story today besides the Sotomayor nomination is that the California Supreme Court voted to uphold Proposition 8 defining marriage as between one man and one woman, while upholding as valid the 18,000 same-sex marriages performed in California last year before the passage of Prop 8.
Naturally, the opponents of marriage equality are claiming victory. But a closer reading of the opinion indicates that it may in fact be a Pyrrhic victory.
From pages 36-37 of the opinion:
Applying similar reasoning in the present context, we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: "Only marriage between a man and a woman is valid or recognized in California." By ts terms, the new provision refers only to "marriage" and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than "marriage." Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of "marriage" under California *37 law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of "marriage" to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.
So not only did the court uphold the 18,000 marriages, they also held that Proposition 8 does not affect the right of same-sex couples to enter into an officially recognized family relationship, thus reaffirming the Marriage Cases from last year. California had a domestic-partnership law up until last year, which was ruled unconstitutional by the Marriage Cases referenced in the opinion. The legal status of that rule is obviously in limbo now, but since the Court upheld their decision I'm guessing the law as is will still be overturned. Therefore, if I'm reading this right, Prop 8 was upheld with one hell of a loophole--the legislature could still pass a civil union or domestic partnership law, with all the same benefits and regulations as apply to marriage, but just not call it "marriage."
Personally, I believe the most fair solution would be to have the government get out of "marriage" completely--perform civil unions for all couples, gay or straight, and leave "marriage" as a religious institution. But even if the California legislature just passed a new civil unions regulation, it appears that would be valid under this decision.
I know it's a cold comfort to those in California who resent that people who don't even know them can dictate how they should live their lives. Believe me, I understand that coming from Tennessee. And I do hope that they will be able to repeal Prop 8 at the ballot in 2010. But in the meantime, it is a small comfort to know that those who oppose equality may have won this battle (barely) but are ultimately on the wrong side of this war.
1 comments:
This is an interesting question. I didn't read today's decision as having any bearing on the In Re Marriage cases; I read it more as simply turning back the clock and reversing the court's opinion in those cases, ergo, upholding civil marriage in the face of voter-disapproval of full marriage equality. In short, I don't think CA needs to pass civil marriage again in order for it to be a viable 'separate but equal' institution available to same-sex couples. Or perhaps to ALL couples, which adds another wrinkle.
But you might be right: if In Re Marriage Cases killed civil unions in favor of equal protection, and the Rainbow Window marriages are still valid, and then civil unions can be reinstated (presumably, for all couples) then this is an interesting pickle indeed. And all in the effort to avoid providing equal protection under the law to ALL couples...which is always a losing proposition (no pun) in the end.
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