The California Supreme Court, as expected, upheld the validity of Proposition 8. A quick reading: before we held that same sex couples were constitutionally entitled to the legal use of the term “marriage” to describe the legal relationship to which they, along with opposite sex couples were entitled to enter. I.e., civil unions with the same rights and responsibilities of marriage just wouldn’t do. Now we hold that it’s not really that important what you call it. The majority can deprive the minority of the right to call themselves “married”, so long, as they haven’t deprived them of any other substantive rights. In other words, so long as same sex couples can enter into domestic partnerships with all the legal incidents of marriage, everything is hunky dory. It has to walk like a duck and talk like a duck, but you don’t have to call it a duck.
I wonder if they would have felt the same way if, in some topsy turvy world, a majority of the states voters had decided that only same sex couples could legally be called “married”. That’s a question, I assume, that must forever remain a conjecture.
On his show tonight Olbermann suggested the case might go to the U.S. Supreme Court. If I’m not mistaken, the case was litigated entirely with reference to the California Constitution, and it’s pretty clear that it would be a major mistake to try to establish the right to same sex marriage in the federal courts. At the moment, the best you could hope for is a five to four loss on the rather narrow issue facing the California court. Worst case: the court grabs the opportunity to declare that same sex couples don’t have any constitutionally protected interests at all. You easily have four votes for that position on the present court. Best to leave this issue percolating in the states, particularly because it looks like the state legislatures in many states are giving the concept a stamp of legitimacy that no court can give. It’s a lot harder for the right to attack a legislative enactment as illegitimate (though, of course, they will) than a judicial decision.
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