Proposition 8 Ruling: Separate and Unequal
The marriage rights of Californians now fall into three categories. Heterosexual couples have access to all rights, responsibilities - and the name - of marriage. Gays and lesbians who were married between May 15 and Nov. 4 can remain so - but cannot remarry in the event of death or divorce. And all other gays and lesbians are prohibited by law from marrying the partner of their choice.
There is a word for this type of unequal treatment:
The state Supreme Court ruled Tuesday that California voters had the authority to pass a constitutional amendment (Proposition 8) that declared, "Only marriage between a man and a woman is valid or recognized in California."
In reading the opinion, it was almost hard to imagine that it was produced by the same court that so eloquently affirmed the principle of marriage equality in May. Chief Justice Ronald George, then writing for the majority in a 4-3 ruling, had declared that all Californians should enjoy "a fundamental constitutional right to form a family relationship."
The latest ruling focused on more technical legal issues, namely whether Proposition 8 represented an "amendment" to the constitution (permissible through the initiative process) or a more substantial "revision" that could be put to voters only through a constitutional convention or a two-thirds vote of the Legislature.
Curiously, the conclusion that Prop. 8 amounted to a mere "amendment" - and not a change in the basic nature of the constitution, as opponents had argued - required the justices to downplay the importance of marriage. This time, George suggested that domestic partnerships and anti-discrimination laws offer same-sex couples the "same substantive core benefits" as their heterosexual counterparts. The justices acknowledged that Prop. 8 does "diminish the rights of same-sex couples," but not so drastically that it would produce a "sweeping constitutional effect."
It was up to Justice Carlos Moreno, the sole dissenting voice, to rise above the thicket of legalese and capture the essence of the issue. To allow a majority of voters to deprive one minority group of its rights is to put "at risk the state constitutional rights of all disfavored minorities," he wrote
Separate is not equal. Marriage is a word with a meaning that is not matched, for many couples, by a "domestic partnership" or "civil union."
It will take another trip to the ballot box to remedy this injustice. Public opinion is shifting, as evident by the lack of an uproar over the sanctioning of same-sex marriage in other states. Time is on the side of marriage equality.
© 2009 The San Francisco Chronicle