As expected the California Supreme Court upheld Proposition 8 by a vote of 6-1. It also ruled that the 18,000 same-sex couples who got married last year are still married. It’s a long and technical decision (about 180 pages) with two concurring opinions and a concurring and dissenting opinion–so I haven’t fully digested it. But two things to note:
First, under California law, there is no material difference between marriage and domestic partnership. Not one of those 18,000 married couples got any new rights or benefits that California’s DP did not already provide; they only acquired the term marriage itself. Of course, as a state, California cannot grant any of the federally provided rights and benefits of marriage, but as a matter of state law, the two categories are substantively equal. Indeed, in part, that’s why the court held that Prop 8 was an amendment to the CA constitution, and not a broader, more fundamental revision, which would have required more than just an up or down popular vote. As the majority opinion argues:
Instead the measure carves out a narrow and limited exception to these constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples…but leaving undisturbed all the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship…
I know people’s emotions are very raw now; there are dozens of rallies planned around the country tonight. That’s all fine and good. But the decision on whether or not to sink massive dollars and resources into an initiative to reverse Prop 8 in 2010 (remember, Prop 8 was the second most expensive election in the country in 2008; only the presidency cost more), should take this relative equality into account. There are dozens of states where same-sex couples have no partnership rights whatsoever; states where it is still legal to fire someone because they are gay; a federal Employment Non-Discrimination Act is still stalled in Congress. Aren’t those better and more inclusive movement goals than an uphill initiative that would give same-sex couples the M-word in one state only?
Second, Justice Kathryn Werdegar’s concurring opinion contained a tantalizing thread of argument. She joined with the majority in upholding Prop 8, but also wrote:
…all three branches of the government continue to have the duty…to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions as "marriages," but it does not otherwise affect the state’s obligation to enforce the equal protection clause by protecting the "fundamental right…of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships." For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.
What does Werdegar mean? If same-sex domestic partnerships must be equal, in perception and practice, to opposite-sex marriage, and if Prop 8 denies the term "marriage" to same-sex couples only…then maybe this is the answer?
Sure, the Domestic Partnership Initiative, which would convert all heterosexual marriages into domestic partnerships, is a quixotic campaign. But it sure does have a certain brute logic to it.