Following last week’s decision on Proposition 8 by the California Supreme Court, proponents of marriage equality in the state rushed to lay the path to its undoing. The establishment gay rights groups are heading to the ballot box, with an initiative planned for 2010. Meanwhile a Hollywood-backed lawsuit with a marque legal team seeks to challenge the initiative on due process grounds in the Federal Courts.
For some reason, however, nobody is talking about going to the California State Legislature, which has twice voted to grant marriage equality. But that’s what the court decision demands. In its controversial ruling, the California Supreme Court created the possibility for a legislative remedy to the battle over same-sex marriage.
And despite the cheers coming from the proponents of Proposition 8 that the “protected marriage,” for Californians, they may have, in fact, planted the seeds of its destruction.
On Page 34 of their decision, the court tortuously states:
…”[b]ecause 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).”
Or for us non-lawyers, as a result of the Proposition 8 ruling, the “constitutional right to marry” in California, is now a “constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all the constitutionally based incidents of marriage.”
If the Supreme Court were the Supreme Court of Fantasyland, not California, that would be all well and good. Unfortunately, in the Golden State, there exists no means 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.”
The court, in other words, created something which does not exist and the state legislature needs to remedy the disparity between what is offered statutorily to same-sex couples and marriage, whether they call it domestic partnerships – a legal status that does exist – or something else.
But even then, when it comes to basic privacy rights, if this new “not-marriage” is only offered to same-sex couples, it poses a legal and practical conundrum. For example, my car insurance company distinguishes between married couples and domestic partners, which they call “cohabitants” and just plain roommates, which must be listed as “friends”.
And even if married spouses and “cohabitants” were treated equally in terms of insurance rates and protections, should gay and lesbian people be required to divulge their sexual orientation every time they fill out such a form?
What if, instead, the California legislature established a new category of officially-recognized relationship which allows two consenting adults to, in the words of the most recent state Supreme Court decision “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,” and applied it equally to all couples – same-sex or opposite sex – beginning January 1, 2010?
The legislature could choose any term but “marriage” to describe this new kind of contract created by the courts, be it a familiar one like “matrimony” or get creative and invent one…call it “spousage”. Heck, they could probably even call it “merridge” and be constitutionally in the clear. If this new institution is available to both same-sex and opposite-sex couples, the privacy issues raised by the courts would be addressed.
It may well happen. With a legislature and Governor that are firmly behind marriage equality, Proposition 8′s attempts to “protect” marriage, may well lead to its undoing in California. If the legislature does create “marriage” under a different name we will see just how much faith people people place in the statement that there is no difference between marriage and marriage-by-another-name.