Initial Thoughts on the Prop. 8 Decision: Back to Where We Started?

The California Supreme Court has issued its decision in the Prop. 8 case, upholding (on a 6-1 vote) the validity of Prop. 8 as an amendment to (rather than a revision of) the California Constitution, but also upholding (on a 7-0 vote) the validity of the approximately 18,000 same-sex marriages (including mine) entered into between June and November, 2008.  Chief Justice George, who wrote the opinon granting same-sex marriage rights, wrote the opinion released today.  Justice Kennard concurred and Justice Werdegar concurred in the judgment (disagreeing with the majority's amendment-revision analysis but agreeing with the result).  Justice Moreno was the dissenter (he was on at least one Obama short-list for the Sotomayor nomination; I wonder how much they knew about his impending dissent).

It's a long opinion (the majority comes in at 136 pages), and since I've only had a chance to skim it lightly I won't comment on the merits of the analysis.  But one interesting issue popped up relatively early in the opinion: the possibility, about which I blogged last November, that a ruling in favor of Prop. 8 left some room for an advocate to argue that the only way to comply with both Prop. 8 and the constitutional analysis in the Marriage Cases was to deny the status of marriage to everyone.

The basic version of the argument is fairly clear: Prop.8 states that only opposite-sex marriages are valid and recognized in California, but the state constitution's equal protection guarantee requires that sexual orientation classifications be subjected to strict scrutiny.  Presumably, the state can honor Prop. 8's language without discriminating against gays and lesbians only by denying marriage to everyone.  Q.E.D.

Chief Justice George may well have been aware of this issue.  Thus, early in the opinion he characterized the Marriage Cases as defining the substantive right at issue as "the opportunity of the individual to establish . . . an officially recognized and protected family . . . entitled to the same respect and dignity accorded a union traditionally designated as marriage" -- a right "distinct from the right to have one's family relationship designated by the term 'marriage'" (p.34).  Today's opinion makes it clear that that latter right -- the right to a status that has all the respect and dignity of the status of marriage -- is not affected by Prop. 8.

This analysis complicates the simple version of the argument described before the jump.  Now the issue becomes whether denial of the term "marriage" to same-sex relationships implies unequal respect or dignity.  This is, of course, exactly what many same-sex marriage-rights advocates have been arguing all along, especially once civil unions started to be offered as a way of resolving the issue.  It surely seems to open the door for a legal argument to that effect.

Are there any clues about how the court might resolve that argument?  Justice Werdegar, in her concurrence, wrote, after noting the strict scrutiny requirement that remains in effect after today, that "all three branches of state government continue to have the duty . . . today as before the passage of Proposition 8, to eliminte that remaining important differences between marriage and domestic partnership, both in substance and perception." (p. 9) (italics added)  She then drops a footnote that says in part that in the Marriage Cases the court "explained how the assignment of a name other than 'marriage' to same-sex unions creates the perception of second-class status, perpetuates disparagement based on sexual orientation, poses practical difficulties for same-sex couples and their children, and threatens privacy."  (pp.9-10, fn.8) She concludes the text of her opinion as follows: "For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." (p.10)

Of course hers is just a concurrence, but, combined with the majority's language there's at least room for litigation.  But also room for creative action by the state.  Given how much the court relies on the technical status of marriage as the only item affected by Prop. 8, and given the constitutional imperative to maintain a same-sex relationship status that has the equal dignity of marriage, I wonder if we're going to see proposals to essentially have exactly the same forms, legal status and procedures imposed for both marriage and domestic partnerships, with the caveat that only opposite-sex relationships will be referred to as "marriage."  I mean, for example, literally, a form that is entitled "Application for Marriage/Domestic Partnership" and a certificate that says "Certificate of Marriage/Domestic Partnership" with boxes for the clerk to check based on whether it's a same-sex or opposite-sex couple.  And amendment of all state laws to substitute "marriage or domestic partnership" where "marriage" used to be.

Even if the state does this, there may well be litigation.  And it might be fascinating to watch.  If domestic partnerships really do get all this equal legal status, the the marriage/domestic partnership distinction almost becomes a distinction made for its own sake.  That characterization would seem to tee up a federal equal protection challenge, if anyone was willing to bring it.

Who knows.  But certain things do seem clear at this point.  First, today's opinion doesn't settle the issue of what marriage law will look like in California. Second, ironically enough, in the course of settling the law we may be back to the same question that's been on the agenda for several years now: how important is the word "marriage" to the true equality of same-sex couples with their opposite-sex counterparts.

Again, this is all based on an exceptionally quick read.  If I missed something I'd love to hear it.  I'll be saying more about it after I do some more grading!