Waldlaw Blog

Wednesday, May 27, 2009

When the Court Promised Us Equality, They Had Their Fingers Crossed

I have now finished reading the entire Prop 8 decision (well, I admit that I skimmed through the majority's very lengthy discussion of the history of the amendment/revision issue), and I have just a few comments to add to those I wrote here yesterday. First, the decision is well-thought-out and articulate, and gives the strong impression that the Chief Justice and his co-signors felt they had no choice but to rule the way they did. If the Chief Justice had not authored the decision in the Marriage Cases a year ago, I would tend to believe that he was currently acting with integrity. My problem is that I cannot find any way to reconcile what the majority of the court said a year ago with what they are saying now. Let me be specific: When our Supreme Court issued its marriage decision a year ago, same-sex couples already had all of the rights and benefits of domestic partnership that we have today. The court did not find that our Constitution required that same-sex couples be offered the same package of rights and responsibilities as different-sex couples; we already had those. Instead, they found that our state Constitution -- specifically our constitutional rights to due process, equal protection, and privacy -- required that same-sex couples not be put in a separate category from different-sex couples, because the "separate but equal" approach necessarily undermined the dignity and respect accorded same-sex couples and our children. The Supreme Court, a year ago, insisted that our Constitution would allow them to settle for nothing less than full, true equality on our behalf. Now, just a year later, they have determined that as long as the state is providing us with all of the rights and responsibilities accorded married couples (which, again, was true before the court ruled last year) that meets the constitutional imperative provided by the due process and equal protection clauses of our Constitution. Now, "marriage" is just a name, and separate is equal enough to pass constitutional muster. So what changed?? They would answer: "our Constitution changed." They would have us accept that the passage of Proposition 8 means that our current Constitution no longer allows them to provide us with full equality through marriage, but that their commitment to equality nevertheless remains unchanged. And, in fact, in Justice Werdeger's concurrence, she articulates this position quite eloquently: "Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions in the Marriage Cases ... that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that -- excepting the name -- same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, 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 '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.' [Quoting from the Marriage Cases.] For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." Her concurrence strongly suggests that she thinks our current domestic partnership law is unconstitutional in that it does not allow different-sex couples the opportunity to register as an alternative to marriage; and in that it requires same-sex couples to share a common residence in order to obtain the benefits of registration, whereas different-sex couples can obtain those same benefits through marriage without residing together. It is politically interesting to think about demanding that domestic partnership registration be made available to all -- a position with much merit that got abandoned in Sacramento so as not to undermine traditional marriage. If straight couples were allowed to register as an alternative to marriage, that would give us a lot of new allies in demanding federal recognition of domestic partnership. It also could help neutralize the stigmatization that automatically accompanies a "separate but equal" approach. It doesn't fix the fundamental problem created by Proposition 8 and the court's ruling, but it is an interesting and potentially scenic detour on the road to equality. Still, at the end of the day, if the Supreme Court really believed what they said last year, i.e. that marriage is the only way to provide same-sex families with the full respect and dignity that we are due, then I cannot follow how denying us the right to marry does not substantially undermine our state's equal protection clause. And if Proposition 8 in fact did serious harm to the equal protection clause, then it seems clear that it would be a revision and not an amendment and therefore would require more than a simple majority vote. Which seems to be the perspective of Justice Moreno, who authored a ringing dissent, which I recommend to any of you looking for a good read. The reality is that our Supreme Court is made of up seven people with their own ambitions and concerns (including job protection) that influence them in ways that we may never fully know or understand. But going back and reading the Marriage Cases, and comparing them to the opinion issued by the court yesterday, I cannot help but conclude that when the court promised us full equality last year they had their fingers crossed. And that, unfortunately, is a conclusion that even our children can understand.


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