In what can only be interpreted as a “punt” the California Supreme Court today ruled both that Proposition 8, which amended the Constitution to read that marriage is only between a man and a woman, did not violate the California Constitution and that despite what the definition of marriage in California is there are still 18,000 gay couples who are “married.”
I’m offended as a philosopher.
The Court effectively created three classes of citizens in California today (Bonus! Extra class! There used to be just two in the “marriage” discussion.) There are heterosexual couples, who are the only couples who can be married in California and whose domestic partnerships can be called “marriages.” There are homosexual couples, who cannot be married in California and whose domestic partnerships cannot be called “marriages.” And there are other homosexual couples who are married and whose domestic partnerships can be called “marriages.”
The Court has declared that the Constitution of California recognizes more inequality than even Proposition 8 would have introduced to it.
What the Court hasn’t done is settle the matter. The voters of California want marriage defined a certain way; the California Constitution now protects that definition; but it is also clear that California does recognize gay marriage. So, what about recognizing gay marriages performed in other states? Should the rest of California’s gay couples who want to marry do so in Vermont then dare the California government to refuse to recognize those marriages? Should a challenge be immediately issued in the Federal courts under the Equal Protection clause? (Because really? The only difference between legitimate and illegitimate gay marriage in California is calendar date? Rights don’t evaporate when Monday becomes Tuesday.)
Even more annoying: California’s Constitutional Amendment process that requires only a 50% majority has been demonstrated to be the process that holds sway on questions of marriage rights. Proposition 8, the Court ruled, was not a revision of the Constitution, which would have required legislative approval before being put to the voters. Proposition “To Hell With 8” in 2010, then, will not be a revision either, so it will only require a 50% majority to change the Constitution to explicitly recognize gay marriages. And the direction of the support for gay marriage in California has been up over the years, not down, so the likelihood of an amendment recognizing gay marriage is higher than it would have been ten years ago. Maybe it can be passed.
And around and around and around it will go. This either ends with the U.S. Supreme Court or it never ends.
The California Supreme Court made no decision at all today, except that they didn’t want to be called “activist” again. Well, congratulations, Court.
You are inactivist judges.