The California Supreme Court's 6-1 decision Tuesday upholding Proposition 8 was a blow to the community. But it shouldn't have surprised anyone who has been following the same-sex marriage debate in the state. Following oral arguments in March, not one legal observer we heard thought the justices would overturn the same-sex marriage ban, which was narrowly approved by voters last November. These same pundits also came away from the session believing that the 18,000 same-sex marriages already performed would stand. And that's exactly what the court decided.
While the legal question was different from the 2008 landmark decision by the same court that briefly legalized same-sex marriage in California, in the end, the court, which ruled that gays and lesbians have a fundamental right to marry, took that back. Now, gays and lesbians have the right to choose their life partner, but the relationship can't be called marriage; that word, Chief Justice Ronald George wrote in Tuesday's majority opinion, is now reserved for opposite-sex couples only. The justices emphasized in their decision that Prop 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 last year's marriage decision. But Prop 8 "carves out a narrow and limited exception to these state constitutional rights..."
The bottom line, unfortunately, is that discrimination is now written into the state constitution, and that's not a good thing for anybody.
The court did us no favors by reducing Prop 8 to "nomenclature" (marriage is just a word, as George and Justice Joyce Kennard said at the oral arguments). The ruling tries to minimize the importance of Prop 8 and its impact, which adds another hurdle for the next campaign that tries to repeal it. The ruling makes it harder for same-sex marriage supporters to persuade people in the middle that domestic partnerships are not the same as marriage. Not that there's a lot of them �" if there's one thing we learned from the Prop 8 campaign, it's that the vast majority of voters have made up their minds on the marriage issue �" and we will need every one of those middle of the road voters we can get.
It's clear to us that at times the justices seemed to be stretching in their attempt to justify their ruling. In George's opinion, a footnote discusses one of the proposed ballot measures from last year that would have defined marriage as a union between one man and one woman and repealed state domestic partnerships. But that initiative never qualified for the ballot and was not voted on so it's irrelevant for him to use it in the opinion.
The only bright spot in the decision came from Justice Carlos Moreno's powerful dissent. He, alone among the justices, called Prop 8 what it is: "[R]equiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus 'represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a revision.'"
"The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage cases, it places at risk the state constitutional rights of all disfavored minorities," Moreno wrote.
Equally important in the overall fight over marriage equality, however, is this: Tuesday's decision didn't take away any state rights from same-sex couples and the rights under marriage were the same as those that couples acquire when they register as domestic partners with the state. The truth is, even if our unions are allowed to be called marriage in California �" like the 18,000 same-sex couples whose marriages remain valid �" we wouldn't have full equal marriage rights because of the federal Defense of Marriage Act. Gay and lesbian couples marrying in the other states that now allow such unions do not have equal federal rights.
We have not achieved full marriage equality in any state. Until DOMA is repealed (are you listening, President Obama?) we won't have true marriage equality.
And that is the heart of the problem. Marriages performed in states have always been recognized by other states �" until it was gays and lesbians who wanted to marry. Then Congress passed DOMA. When the military moved to become racially diverse through an executive order, it was fine until gays and lesbians wanted to serve openly. Then Congress passed "Don't Ask, Don't Tell." Both laws, of course, were signed by a Democratic president and passed with Democratic votes in Congress.
A favorite anti-gay talking point is the notion that we want "special rights." But the truth is that our opponents pass special laws against us forcing us to confront these barriers and demand equal treatment.
It's not enough for Democrats to stop adding new laws against gays and lesbians �" they have to eliminate the ones that are there now.