Prop H8 Supporters Should Have Been Careful What They Wished For

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Lawyers on either side of the same sex marriage divide (including Clinton special prosecutor and rim-job devotee Ken Starr) are currently arguing whether it’s legal to divest rights from a group of people.

California’s Proposition 8 set out to overturn a California Supreme Court ruling that made same sex marriage legal in California by making discrimination based on gender supposedly legal. But a couple of legal scholars have pointed out that the Prop H8 people might have gone too far. In fact, if they can’t enshrine discrimination into California’s constitution, they may have inadvertently put the court in a position to make “marriage” illegal for everyone, and civil unions the standard for all.

Katherine Franke at Columbia University’s Gender & Sexuality Law Blog takes note of an interesting discussion the judges have been having with lawyers over the use of the word “marriage” and the civil unions law that still extends the rights of marriage without the nomenclature. The plaintiffs claim that the lack of the word marriage is discriminatory; the H8ers, naturally, claim that civil unions are the same thing.

as Nan Hunter pointed out in her blog, that the Marriage Cases could require that the Court deny the nomenclature of marriage altogether since it is no longer available as a Constitutional matter to same sex couples after the passage of Prop 8. As Hunter notes, the Court held in the Marriage Cases:
“Whether or not the name ‘marriage,’ in the abstract, is considered a core element” of the right to marry, “one of the core elements … is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature” of the family relationships of heterosexual partners. By reserving the traditional, well-understood term “marriage” only for straight couples, the court said, it violated the equal protection rights of same-sex couples.
Now that California’s voters apparently have taken the word “marriage” off the table as an option for both kinds of relationship categories, the court has the opening to do something bolder and certainly more interesting than ruling that same-sex couples must be allowed to marry. The court could rule that California has to come up with some other label and treat both heterosexual and same-sex couples the same. In other words, the official label for the legal status must be the same for everyone, whatever that label is.

Check that out. The H8ers may have inadvertently created a legal avenue for eliminating marriage all together. Whoops.

No one thinks this is the most likely outcome — and Franke notes that there is already an anti-H8 ballot measure to overturn Prop 8 in the next election being ginned up as we speak. But it does bring up an interesting point advanced by Pepperdine scholars Douglas W. Kmiec and Shelley Ross Saxer as explained by Michael Lindenberger in Time magazine.

When a Jewish boy turns 13, he heads to a temple for a deeply meaningful rite of passage, his bar mitzvah. When a Catholic girl reaches about the same age, she stands in front of the local bishop, who touches her forehead with holy oil as she is confirmed into a 2,000-year-old faith tradition. But missing altogether in each of those cases – and in countless others of equal religious importance – is any role at all for government. There is no baptism certificate issued by the local courthouse, and no federal tax benefits attached to the confessional booth, the into-the-water-and-out born-again ceremony or any of the other sacraments that believers hold sacred. Only marriage gets that treatment, and it’s a tradition that some legal scholars have been arguing should be abandoned.

In fact, in some countries (like Germany, where I attended a wedding this summer), the legal “civil ceremony” can be conducted well in advance of any desired religious ceremony, and the state is only involved with the former — no power is invested by the state in a religious leader to perform state actions.

“While new terminology [of civil unions] for all may at first seem awkward – mostly in greeting-card shops – [it] dovetails with the court’s important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow,” wrote professors Douglas W. Kmiec and Shelley Ross Saxer.

The court seemingly agreed this might be possible, and even Ken Starr said it would make things equal, though he didn’t like it:

Both sets of lawyers agreed that the idea would resolve the equal protection issue. Take the state out of the marriage business, and then both kinds of couples – straight and gay – would be treated the same. Even Ken Starr, the Pepperdine law dean and former Whitewater independent counsel who argued in favor of Prop 8, agreed that the idea would solve the legal issues, though he said it was a solution that lies outside the legal authority of the court. An attorney for the other side, Michael Maroko, didn’t expressly endorse the idea, but he told Chin, “If you’re in the marriage business, do it equally. And if you’re not going to do it equally, get out of the business.”

So, might the state be getting out of the marriage business? Only time, and some judges, will tell.

Prop 8 Justice: Will/Should the California Supreme Court Abolish Marriage? [Gender & Sexuality Law Blog]
A Gay-Marriage Solution: End Marriage? [Time]

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