Posted by Dale Carpenter:
The right formerly known as the right to marry:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243377394
is now "the constitutional right to establish, with the person of
one's choice, an officially recognized and protected family
relationship that enjoys all of the constitutionally based incidents
of marriage (or, more briefly, the constitutional right to establish
an officially recognized family relationship with the person of one's
choice)." Strauss v. Horton, p. 35.
One of the most striking things (rhetorically, at least) about
[1]today's Prop 8 decision is the extent to which the court labors to
minimize its decision just a year ago in In Re Marriage Cases. Recall
that in Marriage Cases the underlying issue was not really whether the
state was obliged to provide gay couples specific rights "incident to
marriage" (e.g., intestacy rules, adoptions, powers of attorney,
hospital-visitation rights). With trivial exceptions, as the court
recognized, California's domestic partnership law had already done
that. Instead, the petitioners sued to have their relationships
recognized as "marriages," title and all, on the theory that anything
different would violate the right to marry and embody a suspect
classification.
Back then, the state supreme court repeatedly referred to the right
"to marry" and to "marriage" as the main issue in a case styled, after
all, Marriage Cases. The court explicitly rejected the state's last
line of defense -- that while gay couples might be entitled to all of
the "incidents" of marriage the state could leave the designation of
"marriage" to opposite-sex couples. Back then, the court warned darkly
that denying the title of "marriage" to gay families risked
second-class citizenship, harm to children, and loss of dignity:
[T]he exclusion of same-sex couples from the designation of
marriage works a real and appreciable harm upon same-sex couples
and their children. As discussed above, because of the long and
celebrated history of the term �marriage� and the widespread
understanding that this word describes a family relationship
unreservedly sanctioned by the community, the statutory provisions
that continue to limit access to this designation exclusively to
opposite-sex couples � while providing only a novel, alternative
institution for same-sex couples � likely will be viewed as an
official statement that the family relationship of same-sex couples
is not of comparable stature or equal dignity to the family
relationship of opposite-sex couples. Furthermore, because of the
historic disparagement of gay persons, the retention of a
distinction in nomenclature by which the term �marriage� is
withheld only from the family relationship of same-sex couples is
all the more likely to cause the new parallel institution that has
been established for same-sex couples to be considered a mark of
second-class citizenship. Finally, in addition to the potential
harm flowing from the lesser stature that is likely to be afforded
to the family relationships of same-sex couples by designating them
domestic partnerships, there exists a substantial risk that a
judicial decision upholding the differential treatment of
opposite-sex and same-sex couples would be understood as validating
a more general proposition that our state by now has repudiated:
that it is permissible, under the law, for society to treat gay
individuals and same-sex couples differently from, and less
favorably than, heterosexual individuals and opposite-sex couples.
Compare that to this passage in today's opinion:
Although the majority opinion in the Marriage Cases generally
referred to this state constitutional right as the �constitutional
right to marry,� at the same time that opinion explained that this
constitutional right is distinct from the right to have one�s
family relationship designated by the term �marriage.� (Id. at pp.
812, 830-831.)Because in common speech the term �right to marry� is
most often used and understood to refer to an individual�s right to
enter into the official relationship designated �marriage,� and in
order to minimize potential confusion in the future, instead of
referring to this aspect of the state constitutional rights of
privacy and due process as �the constitutional right to marry,�
hereafter in this opinion we shall refer to this constitutional
right by the more general descriptive terminology used in the
majority opinion in the Marriage Cases � namely, the constitutional
right to establish, with the person of one�s choice, an officially
recognized and protected family relationship that enjoys all of the
constitutionally based incidents of marriage (or, more briefly, the
constitutional right to establish an officially recognized family
relationship with the person of one�s choice).
So marriage wasn't really the main issue in Marriage Cases, it was
convenient shorthand. Elsewhere, the Strauss court tells us that Prop
8 has only a "limited" effect, carves a "limited exception" to the
right to marry, changes the content of a right in "one specific
subject area," diminishes only "one aspect" of a fundamental right,
and so on. It's a puzzle why the court feels the need to characterize
Prop 8 as limited, since there's really nothing in the opinion to
prevent a majority from repealing the state's domestic partnership law
by constitutional amendment. (The court expressly and oddly leaves
this issue open, see p. 93.) How would a repeal fundamentally alter
the character of state government in the way the court understands
that concept?
There's plenty of ground to question the decision in Marriage Cases,
and to support today's decision in Strauss as correct on the
revision/amendment distinction. And I think the protections provided
to gay families under the rubric of "civil unions" or California
"domestic partnerships" are a huge advance that can't fairly be
likened to a new form of segregation. But it seems to me that, given
the rationale and rhetoric of the first decision, the court
disingenuously minimized the deprivation in the second.
References
1. http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF
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