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March 06, 2009

Rough ride for Prop 8 opponents, but is an even better result possible?

First the caveats: not only is predicting results from watching an oral argument chancy, but I was not able to watch the entire three-hour argument. So perhaps what follows is foolhardy.

But -- from what I did see, I wouldn't bet anything valuable that the California Supreme Court will invalidate Prop 8.

In the arguments in the marriage case last spring, Chief Justice George, who later wrote the opinion, seemed almost to be reading from his draft, with several references to the 1948 decision in which the court struck down the state's anti-miscegenation law.  Yesterday, if he was guided by a draft opinion in most of his questions, the outcome will be that Prop 8 was an amendment, not a revision, of the state constitution, and is therefore valid. Justice Kennard, another member of the majority from last spring, seems likely to join him, and there was no sign that the three justices who formed the minority in the marriage case have any inclination to find fault with Prop 8. So it looks to me like Prop 8 will continue in effect.

As to retroactivity, my hunch has always been that the 18,000 couples who married in California between the date of the last decision and election day will continue to have their marriages recognized as such. And nothing I observed in the oral arguments has changed that view.

So what happens next? If my prediction is correct, the media will play it as the proponents of Prop 8 being allowed to claim the fruits of their labors, and a validation of popular sentiment still set against recognition of same-sex marriage. And that will be true as far as it goes.  But something far more interesting might emerge.

Several of the early questions from the bench seemed to suggest that especially Justices Kennard and George were inclined to focus on the equality in state law benefits that exists between marriage and what California calls domestic partnership (really a misnomer, because it's a full set of benefits like Vermont or NJ civil unions, not like the earlier form of DPs which are much more limited). These questions led to an exchange that appeared to be mutually frustating for the justices and Shannon Minter, in which Shannon kept repeating that one could not delete access to the word "marriage" and still have equal status, and the justices kept repeating, but the rest of our prior decision won't change.

If the court lives up to what it said in the marriage decision, however, the potential is for a better result than winning the challenge to Prop 8.

Although few people seemed to notice it at the time, the marriage decision ruled that what was essential was equality, not marriage. "Our task in this proceeding is not to decide whether we believe as a matter of policy that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership ... but instead only to determine whether the difference in the official names of the relationships violates the California Constitution." The court ruled that the "right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage." 

As we know, the court ruled both that same-sex couples were entitled to that bundle of substantive legal rights and attributes and that the status of domestic partnership was not sufficient despite its material parity with marriage. The court reasoned as follows (the italics are mine):

"Whether or not the name 'marriage,' in the abstract, is considered a core element" of the right to marry, "one of the core elements ... is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature" of the family relationships of heterosexual partners. By reserving the traditional, well-understood term "marriage" only for straight couples, the court said, it violated the equal protection rights of same-sex couples.

Now that California's voters apparently have taken the word "marriage" off the table as an option for both kinds of relationship categories, the court has the opening to do something bolder and certainly more interesting than ruling that same-sex couples must be allowed to marry. The court could rule that California has to come up with some other label and treat both heterosexual and same-sex couples the same.  In other words, the official label for the legal status must be the same for everyone, whatever that label is.

I can imagine decisions upholding Prop 8  reasoned in other ways as well, but I think this outcome is at least a possibility. The main barrier - and what would make it a major gamble - would be how such a new designation would interface with federal law, which currently recognizes "marriage" as the only label that qualifies someone with marital rights and obligations under federal law. How would the court, and then possibly the legislature construct a legal status not called "marriage" that would not jeopardize all California couples - straight and gay - who obtained a legal formalization of the partnership from that point forward? If it led to a sense in Congress that DoMA had to be repealed or revised, that would constitute a giant step forward. What will happen is a question so entirely speculaltive that I'm just not going to go there unless and until it becomes relevant to something real.

The appeal of this outcome is that it would reinforce that the primary principle at stake is not "marriage equality" - it's the principle, with all its shortcomings, of formal equality under law.  The technical legal label for the institution - so long as it is the same for everyone - is irrelevant.


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I agree that based on the arguments and questioning it looks doubtful that George and Kennard are willing to strike down Prop 8 as an invalid amendment. But I doubt they'll go as far as you suggest and turn it over to the legislature to find a solution for the equality problem. I do think they were clear that the effect of their earlier decision in The Marriage Cases was to constitutionalize the benefits accorded same-sex couples under the Registered Domestic Partnership Act. That is, so long as marriage is on the books, something as equivalent as possible (and possibly something equal in everything but name) is required for same-sex couples. And of course sexual orientation reamins a suspect classification.

However, there is something mildly unsettling about the notion that "the people" have an "inalienable right" to amend the constitutuion to take away fundamental rights from suspect classes with no better justification than bias against the class. Yes, the federal constitution is a check on the most outrageous exercises of this so-called "inalienable right," but I would hope for more from a state constitution.

And I think Therese Stewart made a compelling arugment that was interrupted so many times that I fear the justices never heard it. If we won't let the people via unchecked direct democracy alter the structure of the constitution, then why should we let them alter basic principles that are at the heart of why we have the structures in place to begin with? That is, we have checks and balances in our structure to prevent the eroding of individual rights by a mere majority. We won't let the people via initiative upset those checks and balances -- but for some reason we will let them use the inititative to defeat directly the basic principle: the protection of fundamental rights held by a suspect class when a mere majority wants to strip away those rights for no good reason.

Exactly, I thought this was an important part of Therese Stewart's argument also. It IS a substantive change in the structure of California government if the people by majority vote can alter the principles which the structures of government are set up to protect. If they aren't allowed to change the structures, why should they be allowed to change the principles behind those structures?

I believe Ms. Stewart used a metaphor about moats and walls around castles that I am forgetting right now.

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