California high court got it wrong on marriage

Most know by now that the California Supreme Court this week upheld the state’s ban on same-sex marriage. And many are angry because the decision halts the issuance of marriage licenses to same-sex couples.

But if you want to be really angry, understand how six of the court’s seven justices were able to find a rationale to uphold the now-infamous Proposition 8 – and understand the anti-gay bias behind that decision.

One of the arguments made by the lawyers seeking to overturn Proposition 8 as unconstitutional was that the ban took away the right of same-sex couples to due process and equal protection under the law. But the majority opinion, written by Justice Ronald George, ruled that Proposition 8 does “not entirely repeal” or “abrogate” the aspect of a same-sex couple’s state constitutional due process – that is, the right 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.”

Instead, the court ruled, “the measure carves out a narrow and limited exception to these state constitutional rights” by reserving the official designation of the term “marriage” for the union of opposite-sex couples.

That is to say, since California has strong domestic partnership laws, same-sex couples can do whatever they want regardless of whether or not the state confers the word “marriage” upon them. In essence, according to the ruling, denying the word “marriage” does not diminish the right to equal protection under the law.

This is nothing but a legal tango to rationalize that separate-but-equal is not only equal, but also constitutional.

Haven’t we been through this before? Separate but equal is NOT equal. Even the U.S. Supreme Court has recognized this.

Thankfully, at least one of the justices on the court understands this.

The lone dissenter, Justice Carlos Moreno, wrote in his opinion that denying “the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection. … Even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment. … Promising equal treatment to some is fundamentally different from promising equal treatment for all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights.”

Despite the survival of Proposition 8, all is not lost.

The good thing is that this is far from the last word on the issue. The other good thing is that all seven justices ruled that their decision was not retroactive, so the 18,000 or so same-sex couples who married in California before Proposition 8 passed last November are still legally married.

The downside to that, of course, is that it creates an even crazier patchwork of laws. It used to be just that same-sex couples were only legally married based upon what state they were in. Now, same-sex couples in California are only legally married based upon the date on their marriage certificates.

This is untenable – and it’s just one of the reasons why eventually marriage equality will be the law of the land from sea to shining sea.