Obviously every American who is not an anti-gay bigot is disappointed with the decision of the CA supreme court to uphold prop H8 while preserving the validity of same-sex marriage that occurred between in Re Marriage Cases and November 4th.
The story that got lost is that the decision lacks clarity and leaves many questions unanswered and up to interpretation. Follow me after the jump.
Question 1:
Suppose a gay couple got married in Boston, MA say on September 1st 2008, when it would have been legal to get married in Los Angeles, CA.
Suppose they moved to Los Angeles today. Will their marriage be recognized in CA the way the 18,000 CA same-sex marriages are recognized? NOBODY KNOWS
Suppose they moved to Los Angeles on October 1st when their marriage would still be recognized in CA. Has their marriage stopped being recognized in CA? STILL NOBODY KNOWS.
If such a Boston marriage was recognized in CA but is no longer recognized, are the (ex?) spouses now free to marry other people, of the opposite sex if they are so inclined (assuming they split up and are attracted to people of both genders) or do they need to obtain same-sex divorce from Massachusetts first? Is it possible for CA to require divorce when they don't recognize the marriage in the first place? If they remarry without divorce, are they bigamous in Massachusetts? YOUR GUESS IS AS GOOD AS MINE
If, on the other hand, such a marriage is recognized in CA, or never stopped being recognized in CA, as the case may be, then you get the odd result that CA will recognize ALL marriages same-sex or opposite sex that occurred during the 5 month period between in Re Marriage Cases and November 4th, no matter where they were legally performed in the US, but not any other same-sex marriages before or after that 5 month period.
Question 2:
Do the 18,000 or so same-sex marriage licenses that survive in CA confer exactly the same rights to heterosexual marriage licenses? You would think so.
But you might be wrong. A heterosexual couple can divorce and remarry. They can even divorce and get remarried back to themselves. On the other hand, the same-sex spouses cannot remarry each other after they get divorced. Wouldn't that create a failure of equal protection under the law? A failure to treat all divorcees equally?
Question 3:
The CA supreme court decision seems to suggest (at p.36) that the only right that prop 8 took away is the right for a gay couple to have their union be CALLED marriage by the state, while preserving for gay unions every other right available to opposite sex married couples (presumably through the device of domestic partnerships, which are in effect civil unions).
However, if it were true that "marriage" and "domestic partnerships" confer identical rights, then how do you explain this: The married spouse EVEN IF GAY is allowed to serve in the armed forces, because he has "cover" under Don't Ask Don't Tell. But the domestic partner is excluded under automatic triggering of DADT. Is this constitutional?