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