In recognizing the right to get married to the person of one's choice the Court observed that "marriage" is far more than just a word or simply the composite of rights and obligations under the law. The Court recognized a certain intangible, immeasurable quality that the word "marriage" bestows on a relationship. Marriage by the Court's reckoning was far greater than the sum of its parts, and while a "civil union" conferred the same rights and obligations as marriage, its status was not equal to marriage in the larger community. Civil unions were separate but not equal in the view of the Court.
Of course, in the giddy intoxication that came after the Marriage Case decision, the forces opposing legal recognition of same-sex marriages set to work to reverse the Court's decision, unveiling what they perceived to be the ultimate weapon – Prop 8. Prop 8 would not erect a mere statutory prohibition on the recognition of same-sex marriages, it would amend the California Constitution itself - the foundational document from which all the rights, powers and freedoms of the people flow - to declare that marriage was reserved to heterosexual couples only. Prop 8 sought to permanently make same-sex unions separate and distinct by definition from heterosexual unions. So, under the post-Prop 8 California Constitution a same-sex couple with two children, a house and a car could live next to a heterosexual couple with two children, a house and a car, but only one of those couples could be recognized as being "married."
Prop 8 Rescinds Marriage Right
The fact that 18,000 same-sex couples had gotten married in reliance on the pronouncement by the Supreme Court did not hinder the efforts of Prop 8's supporters to turn back the clock. From their perspective same-sex marriages were a sacrilege, a defilement of an institution which they believed to be ordained by God, and which was prohibited by scripture and which should likewise be prohibited by law. In the run up to the election supporters and opponents of Prop 8 amassed and spent nearly 80 million dollars in contributions from individuals and organizations within the state of California as well as outside the state. (The sources of the funds supporting Prop 8 have been the subject of considerable controversy and much public hue and cry since the passage of the amendment, which has raised questions of whose interests were really at play in the election of November 4, 2008 – those of the people of California or those of the churches and their members who supported the amendment.)
It may be impossible to overstate how important and complicated the issue of marriage is to people. Whether or not to marry and to whom is in many peoples' lives the biggest decision they will ever make. Throwing the State Constitution, the laws and the workings of the government into that mix only makes the web more tangled.
The Supreme Court now has the unenviable task of trying to resolve the issues raised by Prop 8 in a way that is just, fair and respectful of the rights and beliefs of the full spectrum of parties with a stake in the battle. Ironically, that resolution will also require the Court to determine whether it – and not the voters – even has the right to decide the thorny issues of Prop 8. As the Justices themselves observed, their duty is to interpret the Constitution and laws, not to rewrite or amend them. And for better or worse, Prop 8 is now part of our Constitution.
The Court's decision is expected in June of 2009, but it will not likely be the final word on the issue of the legal recognition of same-sex marriages in California. No matter how the Court decides, the losers in this battle won't wake up the next morning convinced of the wisdom of the victor's side. Indeed, supporters of same-sex marriage recognition have already started spoiling for the next fight. Signature gathering for a ballot measure rescinding Prop 8 was approved by the Secretary of State on March 20th, and the question of the recognition of same-sex marriages will be before the voters once again in November 2010, together with a measure which would take California out of "the marriage business" altogether by recognizing only domestic partnerships.
The legal process is at the best of times a clumsy and inelegant means of resolving disputes, more like a cudgel than a harmonic synthesizing of competing interests. And there is something unnerving about funneling a matter as personal, private and fragile as a loving relationship through the unfeeling machine of civil litigation. What comes out at the end of the litigation process is in many cases more like sausage than Solomonic wisdom. It contains a little bit of everything that gets tossed into the grinder. Chances are that no matter what comes out at the end of the process, it's going to leave a bad taste in some mouths and leave others with the satisfying taste of moral triumph – however evanescent it might ultimately prove to be.
