Having just completed my review of the California Supreme Court’s ruling on Proposition 8 (”Prop 8″) (PDF of the ruling here), I am struck by a distinction that I had missed until now. All seven judges agreed that the constitutional amendment effectuated by Prop 8 is far narrower than I had previously believed it to be. Prop 8 added the following new language to the California constitution: “Only marriage between a man and a woman is valid or recognized in California.” Both the challengers to Prop 8 and the California Attorney General (who also took the position that Prop 8 is unconstitutional) took a broad reading of the initiative, attacking it on the grounds that it not only denies same-sex couples the right to enter into a formal relationship labeled by the state as “marriage,” but also denied them the ability to enter into formal relationships that had all of the characteristics of marriage other than the label (i.e. civil unions). However, the California Supreme Court rejected that reading:
Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829)…. Instead, the measure carves out a narrow and limited exception to these state constitutional 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.
Thus, while the California Supreme Court ultimately concluded that Prop 8 is not unconstitutional, this is not as terrible a loss as it initially seemed for proponents of same-sex marriage. Notably, the California Supreme Court’s narrow reading of Prop 8 means not only that civil unions with all of the same substantive aspects as marriage (other than the name) are still permitted, but they actually remain a constitutional right under the California constitution. See In re Marriage Cases, 183 P. 3d 384 (Ca. 2008). The issue is only a matter of labels.
This is not meant to diminish the absurdity that Californians would act with such hostility towards homosexuality that they would require that same-sex unions be labeled something other than the label provided to heterosexual unions, but at least this avoids what I regard to be the worse result of complete denial to same-sex couples of the ability to enter into unions giving them the same substantive rights as marriage. This avoids the tragedy of devoted partners being unable to enter into a union that will allow them visit each other in the hospital and participate in medical decisions, or to have the same parental rights as heterosexual married couples, or any of all of the other benefits and responsibilities conditioned on marital status.
In the coming weeks, I hope to write a longer piece on the wisdom of the filing of a federal lawsuit challenging Prop 8 (as has already been done – see here), particularly considering the narrow reading given by the California Supreme Court. Essentially, I plan to discuss whether, as a tactical matter, it is better that the first Federal constitutional challenge could come out of California, where the issue is only that of the label applied to the union, rather than one of the many other states where same-sex couples do not have the benefit of the availability of civil unions.
I would welcome your thoughts and comments on any of this. Please note that the above entry is not legal advice and any comments that you leave will not be protected by the attorney-client privilege, nor will reading this blog or commenting thereon cause us to enter into any legal representation.
[...] close to providing all of the rights, benefits and obligations of marriage other than the name. See my previous entry on this topic. The rogue federal complaint does not appear to raise any of the differences between California [...]