Words Matter: The California Supreme Court on “Straight Marriages” and “Gay Domestic Partnerships”

To my way of thinking the true significance of the ruling of the California Supreme Court on Thursday, May 15, in re Marriage Cases is not that it legitimates homosexual relationships that are akin to heterosexual marriages. It is that in our laws we Californians must use the same term(s) for both because our legal requirements already guarantee them substantially the same thing.
Our statutes cannot continue calling heterosexual unions “marriages” and homosexual ones “domestic partnerships” when these terms are virtually the only legal difference between the two kinds of unions. The Court holds that the grand virtual compromise—“marriage” for straights and equally beneficial “domestic partnerships” for gays, lesbians, bisexuals, and transgender persons—is too altogether too compromising.
This is ironic. The “inner logic” of the line of reasoning that so many of us championed ended up requiring us to accept the very outcomes we were trying to avoid in the first place! How did this happen?
Part of the answer is that we Californians distinguished in our laws between heterosexual “marriages” and homosexual “domestic partnerships” in order to correct some obvious inequities while maintaining some important traditions. In order to be fair, we tried to make their legal guarantees as similar as possible. We were so successful in doing this that our Supreme Court has now informed us that in our laws we must no longer distinguish between them. We thought we had found a path through the impasse. We had; however, it turns out that precisely because we had we actually hadn’t!
In the concluding words of Chief Justice George, “limiting the designation of marriage to a union between a man and a woman is unconstitutional [in California] and must be stricken from the statute” in question. “The remaining statutory language must be understood as making the designation of marriage available to both opposite-sex and same-sex couples.”
Californians who still want to distinguish between heterosexual “marriages” and homosexual “domestic partnerships” now seem to have two options. On the one hand, they can try to get this ruling overturned on appeal. On the other, in November of this year, they can try by popular ballot to implement an amendment to California’s constitution that would restrict the word “marriage” in our laws and other public policies to heterosexual unions.
If there are citizens who try to appeal it, their claim is likely to be that California’s Supreme Court overreached and made a decision that it should have left to the legislative and executive branches of government. This puts the proper role of the courts in such matters front and center, and this is likely to be an intensely debated issue as we move into the election season.
All three of the justices who spelled out their own views in addition to what Chief Justice George wrote addressed this matter. Justice Kennard could not have been clearer. He wrote that “Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government.” [Emphasis supplied.]
Justice Baxter, with Justice Chin concurring, was equally clear in the opposite direction. “I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry,” he wrote. “In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.” [Emphasis supplied.]
Justice Corrigan wrote that “Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.” [Emphasis supplied.]
I hope that re Marriage Cases does not prompt the intensity and length of discord that Roe v. Wade, the 1973 United States Supreme Court ruling about abortion, has. In that case a small number of men imposed their views on the whole nation with predictable results. Over the past thirty-five years we have made much progress on the end-of-life issues but hardly any on the beginning-of-life ones. Although I support its provisions, I think that the severe and lasting tumult Roe v. Wade prompted is partly to blame.
If it were up to me, we would use the same term for both heterosexual and homosexual unions but it would be “domestic partnership” rather than “marriage.” This would put both on an equal footing in legal word and deed; however, it would also open the door to other types of unions that it is in society’s interest to recognize and honor. These would have nothing to do with sex, either heterosexual or homosexual, and everything to do with mutual support, lasting commitment, and stability.
Here are some cases in which forming domestic partnerships with all the usual benefits and honor would be in everyone’s interest: two widows; a single man and his severely handicapped sister; two men who are “mates” in the Australian sense [not sexually interactive] ; two women who have the same kind of relationship; or just good friends of either sex who plan to spend the rest of their lives together. We should foster healthy domestic partnerships of all these kinds and more.
It cannot be stated too often: we should honey comb the whole of society with domestic partnerships that benefit those in them and others too. How strange it would be if we decriminalized fornication, adultery, and similar activities only to penalize in our laws homosexual men and women who form lasting and mutually supportive relationships!
Many of us were taught that “sticks and stones may break my bones but words will never hurt me.” The Supreme Court of the Golden State disagrees and rightly so. Words matter!
David Larson teaches in the School of Religion at Loma Linda University.