Proposition 8, the real secret: the supporters lost

[elfs]

Page 36 of the ruling:

Insofar as the majority opinion in that case holds that limiting the designation of "marriage" to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in in re Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

[Final emphasis mine]

Is everyone clear on what happened here? The California Supreme Court is basically saying that their 4-3 ruling granting same sex couples the exact same rights as married couples, without any of the exceptions carved out in Assembly Bill 205, stands as a matter of law. Homosexual couples are entitled to absolutely all of the benefits and rights as heterosexual couples, without fail.

They just can't use the word "marriage" on the license creating "officially recognized family relationships." They can say "husband." They can say "wife." They can say "family." They get absolutely every right granted a married couple under California law. No exceptions.

It's kinda weird, too, the court enshrining proscriptive dictionary meaning. I thought only the UK did stuff like that.

This time the court, clearly irked to have to deal with this issue a second time, issued their ruling 7-0. This is a rebuke to the proposition 8 supporters, and a warning. Even the three justices who disagreed with in re Marriage Cases don't like having their constitution messed with and their court's judgement overturned.

I've seen this analysis several times on the 'net today, and it seems to come back to Seneca Dione's website at KOS. It looks like a solid analysis of the ruling of law as handed down by the Supreme Court. Straight people have marriages called "marriage"; gay people have marriages called "ORFRs" (until otherwise revised). There is no legal distinction between the two in a court of law, and the supporters of proposition 8 will just have to live with that.

Comments

[solarbird]

6-1. And more importantly, this definitionalism does matter, eventually, for Federal and interstate purposes. Also, as has been demonstrated repeatedly, the word matters for legal purposes (c.f. a recent ruling in New York saying that the fact that the CU law was a different law to the marriage law meant, even though they were supposedly structured identically in the separate-but-equal sense, the mere fact that they were separate was legal cause to treat them differently in said court.

Also, on-the-ground experience in California shows that legal authorities can, will, and do treat CU couples differently in important legal ways to married couples, even though that's against the law, and this matters.

[bunnybutt.livejournal.com]

It was 6-1 on the upholding of Prop 8 under the narrow definition. It was 7-0 on upholding the balance of the in re: marriages decision.

CA has never had true CU as set forth by the court yesterday. To date, the legislated domestic partnership laws never granted "all the rights and privileges" of a marriage - there were specific exceptions carved out, which have now been eliminated.

While the NY case is interesting, it's not on point here, even if it were recognized case law in CA. This decision clearly states that going forward, there will be no difference in legal treatment save for the use of the term "marriage". Where it will get interesting is in the application of full faith and credit, but that can't happen until DOMA is addressed federally. By that time, things may well have changed again at the local level.

The court did the best they could do with the flawed argument brought before them (whether 8 was an amendment or a revision) and reaffirmed their clear desire for equality. The rest of the journey will take some time, as journeys do.

[tagryn]

Don't think Prop. 8 was trying to take that away, just access to the term "marriage" which has a lot of social approval connotations which go beyond specific legal rights: despite the increase in cohabitation over time, being "married" still carries a social freight with many in our society that being partners/cohabitors/SOs/etc doesn't. If 'marriage' didn't hold these certain intrinsic societal meanings that civil unions don't have ascribed to them (yet), we wouldn't be seeing such a bitter fight over it by both sides.

As solarbird says, separate-but-equal often isn't from a legal standpoint, and the issue isn't just about legal rights, either.

[lucky-otter.livejournal.com]

An argument could be made that "married" is still available, even though "marriage" isn't.

[eonen.livejournal.com]

No matter how you look at it, tho, it's not equal until the name is the same for all marriages...it's separate-but-equal, which as we all know isn't actually equal.

So either the het folks are gonna have to give up the term themselves or accept it for all; that's the only acceptable resolution to this.

[(Anonymous)]

I would've loved it if the court had said, "Okay, NOBODY gets a marriage now."

I think that actually has more legal merit than what they settled on; it reconciles Prop 8 with the due process and equal protection guarantees even better, without creating a separate-but-equal nightmare. Too bad it's politically impossible.

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[eonen.livejournal.com]

I have to admit, that would have tickled me too: "Okay, you fuckers; if that's the way you wannit, NOBODY'S gettin' married! How'z THAT for equal?!?!" Heh.

[(Anonymous)]

Separate-but-equal issues aside, I wonder how, or if, same-sex couples can obtain this ORFR. It's nice to have this shout-out from the court and all, but practically speaking, it's meaningless until same-sex couples can actually walk into the county clerk's office and get an "ORFR license."

I suspect a fair amount of legal action will be required to get the state to actually live up to the requirements the court sets forth in this decision. It could take years. I think it's likely Prop 8 will be nullified by a future ballot initiative before real people are able to take advantage of ORFRs.

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