Thursday, May 22, 2008

So I'm a little late to this party....

The California same-sex marriage decision is fascinating on a number of fronts, but the one that stands out the most for me is that the Court held that it didn't matter whether you call it marriage, domestic partnership, or civil union, as long as the name applies to all persons across the board. The Court gave the Legislature permission to get out of the business of marriage altogether; the Legislature could abolish the legal status called "marriage" and replace it with a system called "domestic partnership" for all persons, leaving "marriage" to religious institutions alone.

In this sense, it is similar to the French marriage laws - - religious marriages are not legally recognized, as the couple must also have a civil ceremony to make the marriage legal. Furthermore, this case arose within the background of California's domestic partnership law, which (legislatively) bestowed upon same-sex couples all the rights and responsibilities of marriage, a la civil unions. What mattered for the Court was calling the system for same-sex couples by a different name was inherently discriminatory - - in other words, the term "marriage" itself bestows a legitimacy upon the relationship that the term "domestic partnership" does not.

Words really matter, after all.

Whether any state follows this is hard to say. California treats sexual orientation as a suspect classification for the purposes of its state equal protection clause. I would imagine that most other states do not treat sexual orientation the same way - - that suspect class status was the key here. If other states do not treat sexual orientation the same way, then the argument that the terms matter fall apart. It wouldn't work here in Pennsylvania, for example, where us LGBTs are routinely discriminated against.

I am still waiting for some state to step up and find that their marriage laws violate the Federal constitution, which would guaran-damn-tee that SCOTUS gets involved. I just hope it happens after President Obama gets to replace Scalia and Thomas.