The quick background on Prop 8 for those of you who might not have been paying attention: in 2008, California voters approved a ballot initiative, Proposition 8, that "amended the state constitution to eliminate the right of same-sex couples to marry". Predictably, Prop 8 was challenged in court. Governor Jerry Brown and state attorney general Kamala D. Harris declined to defend the amendment, but Prop 8's original sponsors won the right to put up a defense. Eventually a U.S. district court ruled Prop 8 unconstitutional; naturally, that ruling was appealed and it wound up before a three-judge panel of the Ninth Circuit. The panel issued its ruling two weeks ago, upholding the lower court by a 2-1 majority. (The proposition's proponents are seeking review by the Ninth Circuit en banc. In the meantime, same-sex marriages remain illegal in California as long as the issue remains "live" before the courts.)
The majority's decision is full of history and caveats and minute legal distinctions designed to reassure everyone that these three judges have stayed well clear of arriving at a conclusion regarding the legality of same-sex marriage as such. The majority found that
- California once permitted gay marriage. Specifically, California courts struck down previously approved legislation that had restricted marriage to a man and a woman, and in the wake of that decision individual counties "issued more than 18,000 marriage licenses to same-sex couples".
- Prop 8 modified the state constitution so that same-sex couples could no longer enter into "marriage".
- Prop 8 did not affect state laws that afforded "domestic partnerships" many (or perhaps all) of the same rights and benefits as "marriages".
I think the majority on the appeals court is wrong in its conclusion. I agree that the word "marriage" carries a lot of weight. But as I wrote in the last entry, what I'd like is to relieve it of that weight -- or rather, of the weight it carries in a civil context. Let there be no "marriages" from a civil standpoint. Call the joining of two people in a lifetime commitment to one another "domestic partnership" or "civil union" or "linkage" or something else. Leave "marriage" to churches and temples and synagogues and mosques, if they want it. Informally you can still be "an old married couple" but when it comes time to declare your filing status to the IRS, let the category be called "joined" or "bonded" or some other term that currently sounds silly and made-up, but with time will become the accustomed way for government to describe two people committed to one another for life.
It's worth noting the dissent of N. R. Smith, because I suspect Smith's reasoning is close to how the the U. S. Supreme Court's conservatives will think about the case. While agreeing with the majority that most of Prop 8's proponents' arguments are specious, Smith nevertheless feels that the actions of the legislature, or in this case the directly expressed will of the voters of California, deserves the fullest possible deference by the courts. According to the relevant legal standard, Smith contends, Prop 8 is constitutional if it can be "rationally related to a legitimate governmental interest". Smith does not say that Prop 8 is so related, nor is it necessary for that to be proven in court: the mere possibility suffices.
Smith's reasoning may sound odd, but it's at least as persuasive as the majority's confused reasoning about the worth of the term "marriage". Moreover, any excuse to defer to the will of a state legislature, and even better in this case, to the will of a state's voters directly expressed, will appeal to the Supreme Court's conservatives. I don't see the Ninth Circuit panel majority's reasoning finding much support among the Supreme Court's more liberal wing, though. It relies heavily on sentiment rather than precedent.
(Whether the Ninth Circuit agrees to an en banc rehearing, this matter eventually will find its way to the high court. When it does, look for the Court to resolve the Prop 8 debate on the narrowest basis, and if at all possible without touching on the constitutionality of same-sex marriage. Even if the politically-motivated Scalia wants to make a statement against it, he'll have a hard time convincing other justices to join him: they will be wary of leading the public on a still-contentious issue.)