What the court did and what it left undone

By L. Zoe Cole

What in the heck did the California Supreme Court do with Proposition 8? It looks suspiciously like they implicitly denounced California’s system for changing the state constitution. Many proponents of Proposition 8 believe they won, because the Court did not find that the measure itself was invalid. Some proponents of marriage equality fear they lost because the court did not find the measure invalid. Others wonder how a proposition that limits fundamental constitutional rights in any way is simply an “amendment” permitted by a simple popular majority vote, rather than an “alteration” requiring a two thirds vote of the legislature. And still others think the opinion represents illogical fence-sitting.

The decision may be illogical (even Oliver Wendell Holmes acknowledged that the “law does not always keep step with logic”), but it’s about as far from fence-sitting as a secular court can get. Contrary to popular slurs about “activist judges,” courts don’t make law, much less public policy (as pointed out in a quote from the majority opinion in the New York Times On-line article about the decision), they answer the questions litigants bring. Legal maxims rigorously maintained by most courts also require that an appellate court’s opinion be as narrowly tailored as possible to answer only the questions brought to it and those that cannot be avoided in answering the primary questions. I believe the Court could have gone farther than they did, but Courts are also inherently conservative (again, despite the popular lambasting they often receive). Within the confines of the actual legal situation they were asked to decide, the decision does make sense, even as it leaves room for additional litigation to work out its implications.

Supporters of marriage equality feared that, if upheld, Proposition 8 would invalidate the same-gender marriages that took place between the California Supreme Court’s ruling in The Marriage Cases, (2008) 43 Cal.4th 757, and the effective date of Proposition 8. An “ex post facto” law – which is prohibited by the U.S. Constitution, is one that makes something illegal, after the fact, so the parallel isn’t exact here (because this is a civil case dealing with civil rights, rather than a criminal case), but it is close. As the court points out in its ruling, principles of legal construction require that taking away “vested rights” be clearly intended and not simply an accidental by-product. Because the language of Proposition 8 didn’t specify that it would invalidate previously legal same-gender marriages, it could prevent future same-gender marriages, but not undo existing marriages. If, as has been suggested elsewhere (see, for example the May 26, entry at http://www.dailykos.com), the California Supreme Court intended to give only what it could not legally avoid, then it makes absolute sense that the court would find a way to maintain the legality of these same-gender marriages.

Two things are hopeful for me in the Court’s ruling: 1) the Court’s insistence that its decision does not overturn The Marriage Cases, and 2) their insistence on the right of same-gender couples to establish the same legal relationship that opposite-gender couples do when they marry – just without the same name. “Civil unions” have all the same rights as “marriage,” according to the Court, but civil unions are for same-gender couples while marriages are for opposite-gender couples. Emphasis on the similarity of the two paradoxically sets up an eventual challenge on the same grounds the U.S. Supreme Court overturned segregation in Brown vs. Topeka Board of Education: separate is not equal. If the civil unions and domestic partnerships are legally indistinguishable from marriage, then the logic of Brown and its progeny will require that either a single term is used or that the terms may be used interchangeably by both same-gender and opposite-gender couples.

The California Supreme Court was not asked in this case to make a decision based on equal protection considerations. They already decided the equal protection questions in The Marriage Cases and have gone to great lengths to preserve their answer. The limited legal issue in this case was whether Proposition 8 was an “amendment to” or a “revision of” the state constitution. The Court answered that the measure was indeed merely an “amendment,” and thus did not require a 2/3 majority vote by the legislature to put it on the ballot, but carefully preserved their previous finding about marriage equality. They didn’t have to do that, but they did. The Court also, whether intentionally or not, seems to have created a ruling that will encourage further litigation that will eventually undermine even the narrow limitation on the right of some couples to designate their relationship as a “marriage.”

Other events, such as an overhaul of the constitution as a whole (something also being called for because of the state’s unique economic crisis) or a subsequent ballot measure in favor of same-gender marriage, may obviate the need to overturn the decision the Court has made today. In the meantime, however, the court has raised more questions than it has answered. The more state Supreme Courts hold that civil unions and domestic partnerships involve the same legal rights and responsibilities; and the more opposite-gender couples who chose to create these relationships, although they have the legal right to use the “designation” “marriage” for their relationship, the less justification there is in maintaining a legal distinction among them. If opposite-gender couples can choose “marriage” or “civil union” for their “officially recognized family union,” what legal precedent can prevent same-gender couples from making the same choice between “marriage” and “civil union”? As more states officially recognize same-gender relationships – whether marriage or something like marriage – pressure to reconsider the federal Defense of Marriage Act (DOMA) will also grow, as will the sophistication of the legal arguments against DOMA, and in our very mobile society, the need for states to recognize the valid same-gender marriages of those married elsewhere as well as the rights of the children of such relationships.

While it is certainly frustrating to be given only half a loaf, I suspect this will turn out to be a very important decision on the road to marriage equality for all. Although it is difficult to wait for the next case to form itself and then work its way through the right court with the right facts and the right law to be challenged, this may very well be the same-gender marriage equivalent of the US Supreme Court case Griswold v. Connecticut, which set the stage for Roe v. Wade. In anticipation of the California Supreme Court’s decision on Proposition 8, the news seems to be full of evidence that attitudes toward marriage equality are changing. All the news is good. We are moving toward secular legal marriage equality. Within our lifetimes, our children and our grandchildren will look back and wonder why in the world people ever thought marriage needed to be limited to opposite-gender couples.

The law is not perfect. It does not actually effect social change. Movement in the law merely reflects social change. Brown is a 1954 decision, and yet, miscegenation laws weren’t finally struck down until Loving v. Virginia in 1972. Bowers v. Hardwick, upholding Georgia’s sodomy law, was decided in 1986, and not overturned until 2003 in Lawrence v. Texas. As early as 1993, the Hawaii Supreme Court found, in Baehr v. Lewin, that limiting marriage to opposite-gender couples violated the “state” equal protection clause. However, same-gender marriage did not become legal in any state until the Massachusetts Supreme Court’s 2003 decision in Goodridge v. Department of Public Health, refusing to tolerate persistent, irrational prejudices against lesbigays. California made essentially the same finding last year in The Marriage Cases. Earlier this year, Vermont – the first state to legalize civil unions – became the first state to legalize same-gender marriage by vote of the legislature.

The court is definitely not fence-sitting here, merely splitting legal hairs in a time-honored manner. In fact, the legal system is moving as decisively as it is capable of toward marriage equality and inexorably toward implementing the changes the culture as a whole is making in its attitude toward lesbigays. Really, it is quite exciting!

L. Zoe Cole is a lay member of St. Luke’s Episcopal Church in Denver, CO and active in the Diocese of Colorado. Currently, she is a part-time municipal court judge and a full-time writer for EthicsGame.com, producer of web-based ethical decision making tools and training materials.

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