As you’ve no doubt heard by now, the California Supreme Court upheld Prop 8, the ban on gay marriage, while recognizing the validity of the marriages performed prior to its passage, from June through Election Day 2008. This is basically what most people expected, so I’m not too surprised, but a half-victory is still disappointing. The decision as well as a news release summarizing the opinions are available on the court website (PDF).
The court saw Prop 8 as merely withholding the designation of marriage from same-sex couples and leaving the substantive rights intact in the form of domestic partnership, and the majority felt that doing so neither threatens equal protection nor rises to the level of a constitutional revision, which requires a higher threshold to enact than an amendment.
Only Justice Carlos R. Moreno, the lone dissenter, seems to get what our side has been saying all along:
In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons.
So what are the silver linings? First, that the approximately 18,000 same-sex marriages performed last year are recognized. Second, that a movement is afoot to educate and persuade the public, and bring marriage equality back to the ballot. The tide has turned; time and momentum are on our side. And third, that domestic partnership, while not at risk during this case, still exists. Yes, it is a “separate but equal” institution — it’s impossible to imbue the status of domestic partnership with the aura of marriage — but it’s an important part of California family law.
Thom and I became registered domestic partners on February 13, 2009, and have been planning a wedding ceremony for this September, which from the outset we said we would have regardless of the Prop 8 decision. Prop 8 does not diminish the personal meaning of our relationship. Regardless of what the state recognizes, we will do what countless other couples, gay and straight, have done: stand before our community of family and friends, and pledge our life and love to each other.