On Tuesday, the California Supreme Court upheld Proposition 8, last year's citizen's initiative that amended the state Constitution to explicitly prohibit marriage between two people of the same sex. The reasoning behind the court's decision was sound, given that it was tasked with considering a precise, technical matter of law. The actual result of the decision, however, will not last long.
There's two ways forward. The obvious tit-for-tat solution is to put forth a state constitutional amendment repealing Prop. 8 on the ballot in 2010. Such an initiative would explicitly extend the rights and benefits of marriage to same-sex couples. It would receive a humongous amount of national attention, and dollars would flow in from all corners of the country. This time, it's safe to say, the Church of Latter-Day Saints would be handily outspent. Last year's No on 8 campaign was lackluster and disorganized and ended up losing by a hair; next year, the same crew will be primed for the fight. In the meanwhile, all the momentum is on the side of civil rights -- partly because other states and countries will continue to press ahead, making California look that much more foolish, and partly because, sadly but inevitably, some percentage of the state's revanchists will have shuffled off to their final reward. (The anti-equality movement, like the anti-legalization movement, is a movement of old folks. This is why its eventual defeat is a matter of certainty.)
So the chances for this strategy are good in 2010. But there is a possibility, nonetheless, that it would be a misstep. For one, tit-for-tat would quickly become tat-for-tit. The repeal of Prop. 8 in 2010 would invariably lead to an initiative to reinstate Prop. 8 in 2012. And while it would be tempting to make the Mormons pay up again and again in their misguided efforts to expiate their own church's historical sins -- hey, California needs the money! -- that's about the only justice that would come out of going to the mat over the subject from now until forever, with couples left in limbo all the while.
There's another approach, though, and it has the advantages of being simpler and striking more cleanly at the heart of the issue. The premise of this approach is this: If what you're calling "marriage" is not a civil and Constitutional right open to all citizens, then "marriage" should not be a matter of law. If you want to call yourself "married," then that should be a matter between you and your partner, or you and your partner and your church. But the state and all its branches -- executive, legislative, judicial -- should be completely indifferent to the word. Do a find-and-replace on the entire California legal code and substitute "registered domestic partner" for "spouse." The language is more stilted, but if you're telling us that the word "marriage" has to conform to particular ancient religious strictures that you reserve the right to interpret, then quite plainly it should not have a home in the written codes of a free country. This is elemental.
Indeed, the notion was given powerful support Tuesday in Justice Kathryn Werdegar's concurring opinion. Werdegar was one of the six justices who agreed to uphold Prop. 8, but in her mind the equal protection clause of the U.S. Constitution reduces the case to a silly argument over semantics. She writes:
"Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions ... that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that -- excepting the name -- same-sex couples are entitled to enjoy all of the rights of marriage ... Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception."
In other words, for all intents and purposes "marriage" is a personal or religious matter, and not a matter of law. This is as it should be. Let any two people have any kind of ceremony they wish, and let them refer to their relationship with any term they deem appropriate. Just fill out these forms for legal purposes, and you're on your way. You want to spend the rest of your life bickering amongst yourself about who is really, truly married for reals? Fine. Let's make this another pointless American pastime.
And when the anti-equality forces come back in 2012, let them then make the argument that the government should be in the business of regulating the love lives of its citizens, giving special privileges to those whose love it smiles upon. That's when the movement will be clearly revealed as the creepy, anachronistic thing that it is.