Being an activist progressive blogging lawyer requires wearing four hats, one for each word. My first response to Strauss, today's decision on Prop 8, was outrage and disdain. That came from wearing my first three hats. This diary comes from wearing my fourth one. There is still cause for anger, no doubt, but I think that -- as with the "defeats" for progressives in Bakke (regarding affirmative action) and Casey (regarding abortion rights) people have so far missed the most critical aspect of today's decision.
It's on page 36.
I'm not going to say that this decision is a win for our side. But in the most critical ways, it's a loss for the other side.
In last year's landmark 4-3 decision, In re Marriage Cases, the California Supreme Court decided that same-sex couples have a fundamental right under state law to every single advantage that heterosexual couples do, including the right to call their legal union "marriage."
Today, the court unanimously upheld the substantive fundamental right. Liberal to conservative, they all now accept it. They construed Prop 8 as narrowly as possible: as a initiative that addressed what we would label these relationships that we normally call marriage. The voters said that we can't call these relationships "marriage" when they involve same-sex couples. That's an insult to gays and lesbians and I hope and believe that it will not last. But note what this does not say.
Prop 8, now that the Supreme Court has stripped it down to a bare bone, does not say any of the following:
(1) It does not say that any provision of California law that invokes the label marriage does not also apply to these "civil unions" or whatever we call them -- how about "marrijezz"? -- that same-sex couples will henceforth undertake.
(2) It does not even say that these legal relationship aren't marriages. It just says that the voters decided that in California, if they occurred after a certain date, we aren't going to call them that. This isn't a minor point: it means that if a couple that has had a California "marrije" leaves the state, they have the right to say that they are "married" and have a correctly spelled "marriage" and -- when the Full Faith and Credit case eventually comes down -- have the same right to full faith and credit as does anyone from another state who got officially and legally married.
(3) It doesn't say that the participants in "marrijezz" can't call each other "husband" or each other "wife" -- or that they can't legally demand to be able to call themselves husbands and wives. This was, in the eyes of the California Supreme Court, entirely about cutting a particular tag off a dress before allowing same-sex couples to buy it. Do you think that the "this is called a marriage" tag is the same as the "I can call this man my husband or this woman my wife" tag? Nope -- that's a different tag. If voters want to eliminate the words "husband" and "wife" from same-sex partners, they have to pass a new initiaitve. Does that start to convey a sense of how deeply the Court carved down Prop 8 today?
Voters thought that they were putting an end to gay couples being able to take a legal step that gave them the privileges and immunities of marriage. They thought that they were undoing In re Marriage Cases. What the Supreme Court said, essentially is: "OK, public, we will give you the ground that we technically have to cede -- and not a millimeter more. Except for the one thing that you have specifically forced us to change, In re Marriage Cases stands as we wrote it. Except now it's not a 4-3 decision, it's 7-0."
The Court explains, as I've tried to do in comments, on pages 126-135 why it was OK to let existing marriages stands. It is using time-honored legal principles used to determine when a statute has to be determined to have a retroactive effect. The intent has to be explicit, especially when it is taking away vested rights. If the language is not explicit, it has to be crystal clear from context. In this case, as they note, the issue of retroactive application was not even raised in the voter guide statement submitted by proponents. That's not nearly enough for retroactive application.
However, the reason should be even more clear when you realize what they actually did here. In re Marriage Cases was, let's say, 95% substantive and 5% symbolic. If they recognized Prop 8 as taking away 100% of what they did in those cases -- or even 50% or 25% -- then perhaps there would be a close call involving retroactive application. However, if the only difference is what label gets sewn onto the same dress, then we're arguing about 5% of it. That 5% is still significant enough -- this is, after all, an "official insult" aimed by the voters at gays and lesbians -- that they can prevent retroactive application. But underlying that is this idea, in which I paraphrase the Court:
We now have two kinds of marriage in the state: those conducted up until the day Prop 8 passed and those conducted starting the day after it passed. For the former marriages, those conducted by both heterosexual and homosexual couples can be called marriage. For the latter marriages, heterosexual marriages can be officially called marriages and homosexual marriages -- which are still marriages in fact -- have to be called something else. So don't bother us about retroactivity; this difference between pre- and post-Prop 8 marriages is no big deal.
I still, I expect, would have signed onto Moreno's partial dissent. (I'm not done with my reading.) But if you look at who won and who lost today, we lost something emotionally important and our opponents, the people who paid for Prop 8, lost almost everything of substance. In time, they will realize that the battle was really over In re Marriage Cases, and they got their butts kicked.
So, while I'm disappointed, I'm no longer outraged. It's hard to be outraged when a unanimous California Supreme Court just reiterated that California law gives every couple regardless of gender the fundamental right to be married in fact, even if voters have messed with the labels. Our opponents lost more today than we did.
UPDATE Here's pages 36-37, starting halfway down the former:
Applying similar reasoning in the present context, we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: "Only marriage between a man and a woman is valid or recognized in California." By its terms, the new provision refers only to "marriage" and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than "marriage." Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of "marriage" under California *37 law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, 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 the 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. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), 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.