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May 27 / Jonathan

Proposition 8 decision a pyrrhic victory?

This is, more or less, a repeat of a comment that I left at Jonathan Turley’s post on the California Supreme Court’s decision to uphold Proposition 8 (opinion here).

Turley writes, “I have long supported doing away with the term “marriage” in favor of a uniform civil union standard for all couples regardless of gender.”

I’ve been reading the opinion, and it seems to me that the court has, in effect, granted exactly that result, once the implications of the decision are worked out. The opinions are very clear that in the view of the court the only thing that Prop 8 accomplishes is to reserve the name “marriage” to opposite-sex unions, and that the substance of the courts Marriage Cases decision (which legalized same-sex unions) is untouched.

It’s easy, it seems to this non-lawyer, to read the opinion as all but inviting an action to forbid the state to use the term “marriage” to make any civil distinction at all.

Here’s an sample of the opinion language:

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

This is both unsubtle and unanimous. If the state reserves any substantive right to marriage, Prop 8 requires, according to the opinion, that the state may no longer use the term “marriage” in connection that right or privilege.

I’m not disputing the fact that many of us would like to have the term “marriage” back. But in the meantime, the state of affairs in California is profoundly different than it was before Marriage Cases, and Prop 8 has not touched the substance of that difference. So says the Supreme Court of California.

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