The Volokh Conspiracy - The right formerly known as the right to marry

is now "the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice)." Strauss v. Horton, p. 35.

One of the most striking things (rhetorically, at least) about today's Prop 8 decision is the extent to which the court labors to minimize its decision just a year ago in In Re Marriage Cases. Recall that in Marriage Cases the underlying issue was not really whether the state was obliged to provide gay couples specific rights "incident to marriage" (e.g., intestacy rules, adoptions, powers of attorney, hospital-visitation rights). With trivial exceptions, as the court recognized, California's domestic partnership law had already done that. Instead, the petitioners sued to have their relationships recognized as "marriages," title and all, on the theory that anything different would violate the right to marry and embody a suspect classification.

Back then, the state supreme court repeatedly referred to the right "to marry" and to "marriage" as the main issue in a case styled, after all, Marriage Cases. The court explicitly rejected the state's last line of defense — that while gay couples might be entitled to all of the "incidents" of marriage the state could leave the designation of "marriage" to opposite-sex couples. Back then, the court warned darkly that denying the title of "marriage" to gay families risked second-class citizenship, harm to children, and loss of dignity:

[T]he exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term "marriage" and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

Compare that to this passage in today's opinion:

Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the "constitutional right to marry," at the same time that opinion explained that this constitutional right is distinct from the right to have one's family relationship designated by the term "marriage." (Id. at pp. 812, 830-831.)Because in common speech the term "right to marry" is most often used and understood to refer to an individual's right to enter into the official relationship designated "marriage," and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as "the constitutional right to marry," hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases — namely, the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice).

So marriage wasn't really the main issue in Marriage Cases, it was convenient shorthand. Elsewhere, the Strauss court tells us that Prop 8 has only a "limited" effect, carves a "limited exception" to the right to marry, changes the content of a right in "one specific subject area," diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important.

It's also a puzzle why the court feels the need to characterize Prop 8 as limited, since there's really nothing in the opinion to prevent a majority from repealing the state's domestic partnership law by constitutional amendment. (The court expressly and oddly leaves this issue open, see p. 93.) How would a repeal fundamentally alter the character of state government in the way the court understands that concept?

There's plenty of ground to question the decision in Marriage Cases, and to support today's decision in Strauss as correct on the revision/amendment distinction. And I think the protections provided to gay families under the rubric of "civil unions" or California "domestic partnerships" are a huge advance that can't fairly be likened to a new form of segregation. But it seems to me that, given the rationale and rhetoric of the first decision, the court disingenuously minimized the deprivation in the second.

	[Dale Carpenter, May 26, 2009 at 9:35pm] Trackbacks The right formerly known as the right to marry is now "the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice)." Strauss v. Horton, p. 35. One of the most striking things (rhetorically, at least) about today's Prop 8 decision is the extent to which the court labors to minimize its decision just a year ago in In Re Marriage Cases. Recall that in Marriage Cases the underlying issue was not really whether the state was obliged to provide gay couples specific rights "incident to marriage" (e.g., intestacy rules, adoptions, powers of attorney, hospital-visitation rights). With trivial exceptions, as the court recognized, California's domestic partnership law had already done that. Instead, the petitioners sued to have their relationships recognized as "marriages," title and all, on the theory that anything different would violate the right to marry and embody a suspect classification. Back then, the state supreme court repeatedly referred to the right "to marry" and to "marriage" as the main issue in a case styled, after all, Marriage Cases. The court explicitly rejected the state's last line of defense — that while gay couples might be entitled to all of the "incidents" of marriage the state could leave the designation of "marriage" to opposite-sex couples. Back then, the court warned darkly that denying the title of "marriage" to gay families risked second-class citizenship, harm to children, and loss of dignity: [T]he exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term "marriage" and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples. Compare that to this passage in today's opinion: Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the "constitutional right to marry," at the same time that opinion explained that this constitutional right is distinct from the right to have one's family relationship designated by the term "marriage." (Id. at pp. 812, 830-831.)Because in common speech the term "right to marry" is most often used and understood to refer to an individual's right to enter into the official relationship designated "marriage," and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as "the constitutional right to marry," hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases — namely, the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice). So marriage wasn't really the main issue in Marriage Cases, it was convenient shorthand. Elsewhere, the Strauss court tells us that Prop 8 has only a "limited" effect, carves a "limited exception" to the right to marry, changes the content of a right in "one specific subject area," diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important. It's also a puzzle why the court feels the need to characterize Prop 8 as limited, since there's really nothing in the opinion to prevent a majority from repealing the state's domestic partnership law by constitutional amendment. (The court expressly and oddly leaves this issue open, see p. 93.) How would a repeal fundamentally alter the character of state government in the way the court understands that concept? There's plenty of ground to question the decision in Marriage Cases, and to support today's decision in Strauss as correct on the revision/amendment distinction. And I think the protections provided to gay families under the rubric of "civil unions" or California "domestic partnerships" are a huge advance that can't fairly be likened to a new form of segregation. But it seems to me that, given the rationale and rhetoric of the first decision, the court disingenuously minimized the deprivation in the second.