Prop 8 ruling not that bad.

(reprinted from a comment in Buhdy’s essay.)

After reading today’s Prop 8 opinion, the court’s ruling is not nearly as bad as some have made it sound.

   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.

   By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage – albeit significant – that has been removed by this initiative measure.

Basically, the court is saying that same sex couples can have all of the same rights and privileges afforded to straight couples; they just can’t call it ‘marriage’.  Not the ideal outcome obviously, but in terms of legal protections for same sex couples, the court’s ruling neuters the potential effect of Prop. 8 to mere semantics.


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  1. I’ll take the rights.

  2. IMO, to reserve a “word” for only one segment of our population. It is still denigrating.

    • pico on May 27, 2009 at 04:33

    CA citizens pretty much had that before the in re: Marriage case, which opened up same-sex couples to marriage precisely because there was no compelling reason not to (they’d already be granted domestic partnerships with nearly every state-granted right and protection.)  That’s what makes this decision so… weird.  I can’t think of a better way to describe it: they want to argue that Prop 8 stands but so does in re: Marriage, relying on an argument that Marriage sorta debunked in the first place.  I agree with your interpretation of the wording of the key part of this decision; I’m just confused about what it actually does, and I really don’t get their attempts to rationalize it with Marriage.

    I’m not a lawyer so maybe my reading’s off, but that’s what a few reads and a headache got me.

    My favorite part of the ruling: where they avoid the topic of those couples married out of state who became CA residents before November.  What the heck do we do with them?  Court sez: not our problem right now.  Very well could be, soon enough.

  3. read this:

    The word marriage is more then just semantics.  

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