Marriage in California After Strauss v. Horton

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The California Supreme Court took the next step today in the ongoing battle over marriage rights for same sex couples, ruling 6-1 that the people of California had properly amended their constitution last November with Proposition 8, thereby limiting marriage to one man and one woman.     The Court’s opinion, widely predicted to come out as it did, now formally launches a Prop 8 redux for next fall, where there will surely be at least one proposition on the California ballot relating to marriage rights.

The majority’s 136-page opinion, written by Chief Justice George and joined by Justices Kennard, Baxter, Chin and Corrigan (Justice Werdegar concurred but wrote separately), is long on wind up, offering an extended explanation of what and how the Court ruled in the Marriage Cases last June.   They needed to do this as ground-laying for what the Court would ultimately do in the Prop 8 case: avoid the obvious conclusion that they are countenancing separate and not equal regimes for straight and gay couples seeking state recognition.   Straight people get marriage, gay people get civil unions – and the challenge was for the Court to find a way, a plausible and convincing way, of concluding that this dual regime doesn’t amount to an equal protection violation despite the fact that they pretty much held that it did a year ago in the Marriage Cases.

In their summary of the earlier marriage case, Justice George made quite clear a number of times that the California Constitution secures a set of rights which

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.

Thus, there is a right enjoyed by all to state recognition of “two adults who share a loving relationship to join together to establish an officially recognized family of their own.”     When the state “recognizes”   these relationships it must provide the bundle of rights ordinarily organized under the rubric of marriage, but it need not apply the term “marriage”   to all relationships so recognized.   Remember the oral argument in the case last March?   This is what many of the members of the Court kept coming back to (particularly the Chief Justice and Justice Kennard): aren’t we only talking about a label?   So long as the state gives you the same bundle of rights, what really is at stake in fighting over the term “marriage”?   The opponents of Prop 8   (Shannon Minter especially) were cornered having to say that the label was incredibly important, and the supporters of Prop 8 (Ken Starr in particular) were adamant that the term “marriage” didn’t mean that much at all.

Yes, you have a right to state recognition.   No, you don’t have a right to have your relationship recognized as a marriage….

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Katherine Franke – cross posted from Gender and Sexuality Law Blog

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