By the way, I stand by my earlier assertion - the court failed to reconcile the decisions, because it cannot be done. One cannot assert on the one hand that denial of the term marriage is denial of a fundamental interest and with the other say that reestablishing that denial is not a "revision" in the terms of the Constitution. They ducked rationality, logic, and intellectual honesty to rule as they did, and in the process damaged the legal system, perhaps irretrievably.
Proposition 22 at the March 7, 2000, primary election and approved by the voters at that election, provides in full: “Only marriage between a man and a woman is valid or recognized in California.” The Court in
The Marriage Cases determined that
These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
They went on to describe it as
a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.
and
We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
Most importantly here, however, the Court went on to say
We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.
In other words, the word "marriage" has meaning of constitutional dimension.
Now, the Court, in its analysis in
Strauss v. Horton was faced with something completely different. Proposition 8, unlike Proposition 22, read: "“Only marriage between a man and a woman is valid or recognized in California.” Oh... wait. Um, that's
exactly the same wording. So... how does the Court distinguish the two?
It doesn't. Instead, the Court simply ignores the essence of its previous determination:
Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. 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.
It has the temerity to call this a "Clarification."
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;.... 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.
So, in the previous case the Court determined that the use of the term "marriage" was so important in assuring the "dignity and respect equal to that accorded other officially recognized families" that it was unconstitutional to use a different term. Indeed, the Court explicitly
rejected the very argument that it here espouses.
The Attorney General, observing that fundamental constitutional rights generally are defined by substance rather than by form, reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple’s constitutional right to marry simply by assigning their official relationship a name other than marriage.
The Court responded that
retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.
I am sorry, I am so disgusted with the disingenuity of the Court's opinion, that it is hard to go on. It
screams hypocrisy. It is impossible to say, on the one hand, that using different terminology imposes "appreciable harm" and in the very next decision determine that "it is only the designation of marriage — albeit significant — that has been removed by this initiative measure" and terming this "the actual limited effect... upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws[.]" So much for decency, honor, and consistency.
