Those who keep up with the legal and political issues involving same-sex marriages will recall that several years ago San Francisco city and county officials issued some 4,000 marriage licenses to same-sex couples. Challenges to these actions eventually reached the California Supreme Court, which ruled in 2004 that the officials had no authority to issue the marriage licenses “in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional.” Today’s opinion notes that the validity of the California marriage statutes was not before the Court in the previous case, but in the current case(s), consolidated as “The Marriage Cases,” the substantive question is squarely before the Court.

The controversy here is almost entirely symbolic. The California Legislature has enacted domestic-partnership legislation allowing same-sex couples to enter into a legal relationship that the Court says “affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” So the only real question in the case is “whether the difference in the official names of the relationships violates the California Constitution.”

This seems like a rather small quibble in the grand scheme of things, particularly when it takes the majority some 121 pages to reach its conclusion, plus three more signed opinions. However, aside from the emotional satisfaction of being able to say that you are married, there is another consideration. If there are two different legal relationships, marriage and domestic partnerships, eventually two separate bodies of case law will evolve, and it is conceivable that the rights of the parties under the two arrangements could diverge.

Defending the constitutionality of separate designations, the attorney general of California argued that even if the California constitution is read to allow same-sex couples the right to marry, “[T]his right should not be understood as requiring the Legislature to designate a couple’s official family relationship by the term “marriage.” Fundamental constitutional rights, the AG maintained, are defined by substance rather than form; so long as the state allows a couple all of the substantive incidents of marriage, it is free to describe that relationship by a different name.

The Court did not agree. “[T]he state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnerships). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families….” Furthermore, the Court finds that the statutes providing differential treatment discriminate on the basis of sexual orientation–“a constitutionally suspect basis upon which to impose differential treatment….” In order to pass constitutional scrutiny, the Court said, a compelling state interest must be served by the differential treatment, and the differential treatment must be necessary to serve that interest. An interest in retaining the traditional definition of marriage “cannot properly be viewed as a compelling state interest for purposes of the equal protection clase, or as necessary to serve such an interest.” (The emphasis reflects the text.)

The argument seems a bit circular to me: There is so little substantive difference between “marriage” and “domestic partnership,” the Court is saying, that there is no possible compelling state interest to have two different names, except to discriminate; therefore, the different names must be unconstitutional.

All of this is achieved in 11 1/2 pages. The remaining 110 or so pages of the opinion investigate in great detail the California laws relating to marriage and domestic partnerships as well as applicable constitutional provisions. I am going to skip them (this is why my law school grades weren’t so good), except to note that the definition of marriage in California as being between a man and a woman was added in 2000 by initiative (a 61% vote of the people), and go to the three separate opinions: one concurring and two others concurring in part and dissenting in part.

The concurring opinion notes the peculiarity that “[w]hat this court determined to be unlawful in Lockyer (the 2004 case), and ordered city officials to immediately stop doing, is the same action that must now, by virtue of this court’s decision, be recommenced–issuing marriage licenses to couples consisting of either two men or two women.” However, what the concurring judge really does is scold his colleagues for not agreeing with his position in Lockyer (the 2004 case) that the Court should not have voided the 4,000 marriages for same-sex couples and laments that “[b]ecause of Lockyer, however, those marriage ceremonies, performed with great joy and celebration, must remain “empty and meaningless…in the eyes of the law.”

However one feels about the issue of gay marriage, I think that it’s clear that the people who entered into those unions did so with full knowledge that their marriages were not sanctioned by California law. A judge of the state’s highest court should not castigate his colleagues for nullifying them.

Corrigan, J, lists a few areas in which he agrees with the majority but then cuts to the chase:

“The question presented by this case is simple and stark. It comes down to this: Even though California’s progressive laws, recently adopted through the Democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do these laws nonetheless violate the California constitution because, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy, they reserve the label “marriage” for opposite-sex legal unions?”

“… [L]eft to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should…include the legal unions of same-sex partners. But a bare majority of this Court, not satisfied with the pace of democratic change, now abruptly forestalls this process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”

Most of the argument to this point is mere rhetoric. But then the judge puts his finger on the problem I was trying to identify above, when I wrote:

The argument seems a bit circular to me: There is so little substantive difference between “marriage” and “domestic partnership” that there is no possible compelling state interest to have two different names, except to discriminate; therefore, the different names must be unconstitutional.

Baxter, J, sees the issue more clearly than I did:

“[T]he majority holds, in effect, that the Legislature has done indirectly what the constitution prohibits it from doing directly….[T]hat body cannot unilaterally repeal an initiative statute unless the initiative measure itself so provides. Yet the majority suggests that, by enacting other statutes which do provides substantial rights to gays and lesbians–including domestic partnership rights which the Legislature could not call “marriage”–the Legislature has given “explicit official recognition to a California right of equal treatment, which, because it includes the right to marriage, thereby invalidates [the initiative measure].

Yes, that is what I meant to say above. It is not legitimate legal reasoning to say, By passing a statute that eliminated discrimination, the Legislature created discrimination.

One more dissent to go. Corrigan, J, writes, “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this Court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote.”

Notwithstanding a previous holding that the “chief goal of the [Domestic Partnership Act] is to equalize the status of registered domestic partners and married couples,” Corrigan argues, the majority “denigrates domestic partnership as ‘only a novel alternative designation…constituting significantly unequal treatment’ and ‘a mark of second-class citizenship.’ Without foundation, the majority claims that to hold the domestic partnership laws constitutional would be a statement ‘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.’ This is simply not so. The majority’s narrow and inaccurate assertions are just the opposite of what the Legislature intended….

“Domestic partnerships and marriages have the same legal standing, granting to both heterosexual and homosexual couples a societal recognition of their lifelong commitment. This parity does not violate the constitution; it is in keeping with it. Requiring the same rights is, in my view, a matter of equal protection. But this does not mean the traditional definition of marriage is unconstitutional.”

I have to admit that I’m a sucker for dissents. They always seem smarter. But I really think that justices Baxter and Corrigan are right. As Corrigan says, “The people are entitled to preserve [the traditional understanding of marriage as a relationship between a man and a woman], recognizing that same-sex and opposite-sex unions are different. What they are not entitled to do is treat them differently under the law.

I think every state ought to sanction domestic partnerships as California has, and I believe that in due course, most will do so. I have never felt that domestic partnerships threaten the institution of marriage. The argument that separate but equal is inherently unequal was true in cases involving race. It is not true in cases of sexual orientation. The California Supreme Court went too far in saying that the traditional definition of marriage was unconstitutional. Rights matter. Labels don’t.