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Hey, it's just the "M" word

| The California Supreme Court issued its opinion today on the cases seeking to overturn Proposition 8. It is a 185-page example of tortured legal reasoning leading to a nonsensical conclusion.

In 2008, the court ruled in the Marriage Cases that same-sex couples have a constitutional right to "establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditiionally designated as marriage" (p. 34). (Page numbers refer to the PDF version of the court's ruling)

Thousands of same-sex couples sought licenses and were duly married.

Then came Proposition 8, which appeared on the ballot and was narrowly passed:

"Only marriage between a man and a woman is valid or recognized in California."

Inevitably, there were lawsuits, ending at the California Supreme Court. The court upheld Prop 8 declaring that "only marriage between a man and a woman is valid or recognized in California," but they also ruled that it could not be retroactive, so those couples who got married between the 2008 decision and the 2009 ruling remain married.


Hold on tight. A year ago it was unconstitutional to deny same-sex couples the right to marry, but now it is okay?. The court explains away this logical inconsistency by saying that Prop 8 only "carves out a narrow and limited exception to these state consitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws" (p. 7).

In other words, same-sex couples can be married, they just can't designate themselves as married. Prop 8 was just 14 little words, no big deal!

If it's no big deal, why did it take 185 pages to explain it?


The court goes on to suggest that instead of talking about the "right to marry" we should be more descriptive and talk about "the consitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice)."

I'm sure that will catch on.

The court also ruled that Prop 8 could not be applied retroactively. That's sensible. But it instantly creates another inequality: the same-sex couples who were married after the 2008 ruling and before Prop 8 took effect are still married but other couples are not permitted to claim that designation. That is patently unfair and shreds the concept of equal protection.

It is simply astonishing that the same justices who one year ago wrote an eloquent opinion on the bedrock principle of equality could turn around and one year later write another opinion that enshrines inequality in the constitution. They explain that it's because Prop 8 changed the language of the constitution, leaving them no legal choice, but that's utter nonsense. If two provisions of the same constitution conflict, they can't both be right.

It's a perfect example of using the law and legal reasoning to create an unjust result.

Saying that a bare majority can amend the constitution to strip rights from one group of people puts every person in jeopardy of having their rights stripped by some future shifting majority. It is one job of the courts to stand against what Ibsen called the "tyranny of the majority." Only Justice Moreno recognized that: "The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect" (p. 154).

In large measure, I fault the people who brought the cases, because they tried to make it a legalistic argument about a revision versus an amendment to the constitution, and it let the court off the hook. As Justice Wedegar noted in a concurring opinion, the majority justices "avoid the daunting task of reconciling with our constitutional tradition a voter initiative clearly motivated at least in part by group bias."


It was left to Justice Moreno to get to the heart of the matter. He scoffs at the notion that the ruling is narrow and limited to a minor exception:

Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their "'officially recognized, and protected family relationship'" a marriage, still denies them equal treatment.

Last updated on Apr 13, 2018



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