State of Civil Unions: California Court Strikes Down Marriage Ban

Benjamin Wittes

“Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president,” the Obama campaign stated oh-so-carefully in response to this week’s California Supreme Court decision striking down the state’s ban on gay marriage. “He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”

It was a gracious response from a man the court had just branded as the legal equivalent of a segregationist.

What? You didn’t read that part of the opinion? Well, I’m exaggerating a bit, and the court didn’t mention Obama by name. But the opinion definitely imputes something invidious to those who believe in what Obama stands for about gay marriage.

The California justices declared the right to marry a person of one’s own gender a fundamental right, and they declared as well that it violates state equal protection doctrine for California to treat gay and straight couples differently for purposes of marriage. California has a domestic partnership law, which grants same-sex couples virtually all of the rights and obligations of marriage, making the current dispute one of nomenclature over the use of the word “marriage,” not about the substance of marriage rights. But as their colleagues in Massachusetts did a few years ago, the California justices treated this accommodation as a kind of “separate but equal” institution–which is to say, not an equal one at all.

“[Affording] access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples,” the court wrote. Those challenging the law “persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state’s creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School.”

I support same-sex marriage (though not its judicial imposition). Barack Obama does not–at least not publicly. Rather, he supports something, civil unions, that is in substance indistinguishable from the compromise the California political system has crafted and its highest court just struck down.

In all but a small handful of states, such a compromise would represent a giant step forward for same-sex couples. Yet according to the Massachusetts and California supreme courts, that doesn’t matter.

Their states, these courts have held, are constitutionally obliged to afford gay relationships all of the recognition given to heterosexual marriage. And the desire of Obama and millions of like-minded Americans to give gay couples everything but the name “marriage” somehow warrants comparison with the building of parallel African American institutions by way of keeping blacks out of white ones.

The court was not the most strident advocate of this view. The San Francisco Chronicle exulted in response to the ruling that the justices had “strode past the bigotry, fear and blind adherence to tradition that have stood in the way of marriage equality.” But what blind, fearful bigots are the Chronicle talking about here? Not just Californians who oppose gay rights entirely, but apparently also those who, like Obama, support civil unions of the type the court rejected.

Something is wrong with this picture. Somehow, we’ve confused progress on marriage equality with some of the most opprobrious episodes of our legal, cultural, and moral history. For having the guts to move forward while other states were passing nasty constitutional amendments depriving gays of any marital benefits, Californians stand condemned in their own courts for discrimination and in their own newspapers for bigotry.

Few people, of course, really believe this. When we listen to Obama touting civil unions, we hear the progress that he urges, not some appeal to segregation. But it can’t be progress when Obama suggests civil unions, and also progress when a court strikes them down as unconstitutionally discriminatory. And there are costs to asking courts to so far outflank our political system that we would admire politicians for advocating things we would simultaneously want judges to toss out.

One of those costs is that venerable phrases like “equal protection” become so twisted that you can get whiplash watching someone like Obama go from progressive to discrimination advocate. The California court trips over this problem repeatedly; the justices acknowledge the progress made by one of the most forward-leaning states in the union on this issue. They never accuse state lawmakers of bigotry, for example. Yet they still use the civil rights precedents to hold that progress constitutionally deficient. State residents may be justifiably confused to find themselves being congratulated by their court for having moved courageously forward into unconstitutionally disparate treatment of gays.

Another cost is that slow drip-by-drip accretion of power to courts, that steady undermining of the right of people to govern themselves. In California, the deprivation of that right is exquisitely on display, for the compromise the court upset involved decades of negotiation and movement. The nucleus of California’s domestic partnership law dates from the late 1970s. Over time, it has grown more generous, by 2006 including all of the rights and obligations of marriage. In 2000, however, the people of California voted overwhelmingly to limit marriage itself to opposite-sex unions. The legislature has twice voted to extend marriage to gay couples–and Governor Schwarzenegger has twice vetoed the bill. The current arrangement, in short, reflects a series of evolving compromises set against the backdrop of a quickly developing social consensus concerning the value and honor of same-sex relationships–a process that the court treated as just so much bother on the way to a self-evident truth. Once upon a time, this bother had a name. We called it democracy.

In this case, the affront to democracy will probably prove less harmful to democracy than it will to marriage equality. It is so easy to get a constitutional amendment before voters in California that there is simply no way the electorate won’t be asked–and soon–whether to validate or repudiate the court’s action. The short-term danger, in fact, is that a lot of Barack Obamas will turn out to the polls to overturn a policy choice with which they could have contented themselves had it been enacted by other means.

In the long run, however, it matters a lot how we make marriage equality a reality. It matters whether we brand the people who want to proceed incrementally as discriminators. It matters whether we take the time to persuade them democratically of what we believe. And it matters if we think so little of them that we ask judges to flip a switch and change the world and damn our fellow citizens if they dislike it.It matters, to put it differently, if our doctrines treat Barack Obama as part of the problem or as a cautious politician with constructive instincts. Nobody who regards him as the latter should be comfortable with what the California court’s decision.