Tuesday, May 26, 2009

Just Don't Call it Marriage

The California Supreme Court issued a decision today in Strauss v. Horton and related cases, that will probably make everyone unhappy. But maybe people on both sides of this issue should feel at least partially vindicated. The Court upheld the validity of Proposition 8, which amends the State Constitution to read that only marriage between a man and a woman is valid or recognized in California. But at the same time, the Court recognized the validity of the thousands of same sex marriages performed in California between the time of the Court's decision last year finding a constitutional right to marry regardless of sexual orientation, and the voters' amendment of the Constitution last November preventing the state from recognizing a marriage between same sex couples.

Before the social conservatives declare victory, however, and before the social liberals get ready to burn down the courthouse, both sides might want to consider how narrow this decision really is. Both sides might then come to the conclusion that their glasses are half full. What the California Supreme Court actually decided was that Prop. 8 did not affect anybody's substantive rights at all. Nor could Prop. 8 take away the marriage designation from couples who were already validly married in California. Therefore, all Prop. 8 did was to say that you can no longer call a same sex union a marriage, except that you still have to call it marriage for the thousands of same sex couples who took advantage of the Supreme Court's ruling last year. For the future, the Court held that the state cannot deny any rights or benefits to same sex couples that are enjoyed by different sex couples. Or as the Court stated, "same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples--including the constitutional right to enter into an officially recognized and protected family relationship with the person of one's choice and to raise children in that family if the couple so chooses--with the sole, albeit significant, exception that the designation of 'marriage' is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples." (slip opinion at p. 92)

It is ironic that in order to save Proposition 8, the Court had to render it almost meaningless. On the other hand, if the Court had held that Proposition 8 had the fundamental effects that its opponents claimed that it had, the Court might have had to overturn Proposition 8 as an invalid attempt to revise, as opposed to amend, the Constitution. Therefore, nobody won, and perhaps nobody could have won.

Instead of getting outraged about this decision, maybe everyone should try to accept it for the time being. And even if this result doesn't seem to make much sense, and it is sure not to make sense for an awful lot of people on both sides of this issue, maybe that's not the Court's fault. Last year the Court interpreted the Constitution to find a fundamental right of all people to enjoy the benefits of marriage. The voters then amended the Constitution to prevent the state from conferring the title of marriage on same sex couples. But now the Court is saying that all the voters did was to prevent the use of the term "marriage" for same sex couples, and nothing more. As a result, nobody is getting everything they want, but maybe everybody is getting everything they need. Proponents of same sex marriage might try to console themselves with the words of Juliet: "What's in a name? That which we call a rose by any other name would smell as sweet." Perhaps we can think of a better name than civil unions for same sex marriage-like relationships. Meanwhile social conservatives may have to finally wake up to the reality that they have already lost this battle, and all they are holding onto is a name. And they will have to reconcile themselves to that.

Photo from Riverfront Times


  1. Pretty much I think they said if you don't like it ammend the constitution again. Anybody who is happy with the majority of voters' wills being upheld should be fine with it.

  2. I imagine you might allow an exception to the principle of majority rule if the majority voted, for example, to enslave the minority, or even to make them ride in separate railway cars or attend separate schools. So maybe you might be able to see how gays could view this amendment the same way. My point was that given their past rulings, the court could only uphold it by making it as meaningless as possible, otherwise they would have to hold that it violated the rights of the minority.