The arguments before the California Supreme Court raised many hard questions, but one that particularly intrigued me was one to which the Justices frequently returned: What did Proposition 8 really do, after all?  Did it overturn the Marriage Cases – the California Supreme Court case that found it unconstitutional for the State of California to limit the institution of marriage to one man and one woman, and in so doing held that sexual orientation was a suspect classification?  All the parties agree that it didn’t – at least not entirely.   But what did Prop 8 do, and how did it impact the rights of same sex couples that were secured in the Marriage Cases?

The formal question presented in the Prop 8 case was whether Proposition 8 amended or revised the California Constitution, but the question that interested the Court most was whether, and if so how, Proposition 8 diluted or diminished the rights of same sex couples in so far as California provided formal legal equality to same sex couples when it created Civil Unions, and Prop 8 did not alter the suspect class status granted to lgbt people in the Marriage Cases.

ronald-georgeChief Justice Ronald George started off the questioning on this very issue.  He asked Shannon Minter why he maintained that all or most of the holdings of the Marriage Cases were superseded by Prop 8.  The Chief Justice returned to this question almost 3 hours later when Minter was arguing in rebuttal to Kenneth Starr’s argument.  The Chief Justice put to Minter:  “I find it remarkable that you are conceding far greater impact and effect of Proposition 8 in removing rights extended to same-sex couples than did Mr. Starr [who gave] it a far more limited interpretation … eliminating the designation, eliminating the nomenclature but not disturbing the Court’s recognition of very important rights [for same sex couples].”   Justice Joyce Kennard pressed the same issue to Minter:  “What Prop 8 did was take away the label of marriage and its applicability to same sex couples.  But left in tact the Court’s holding in the Marriage Cases … and the majority constitutionalized the [civil union] aspect of the case.  Is it still your view that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

These are the hard questions for the challengers of the constitutionality of Proposition 8:  If same sex couples have all of the same formal rights and benefits of marriage when they become civilly union’ed – did Proposition 8 merely deny them the “nomenclature,” the “designation,” the “name,” the form of marriage?  If so, what kind of constitutional harm is that?  And let’s be clear, the answer to the question is as much a political/ethical one as it is a formal/legal one.  By that I mean, we’re in the domain of symbolism and cultural meaning here in demarking the salience and weight of the injury that is Prop 8.

So is marriage more than a word?  Did the justices of the California Supreme Court simply not “get it” when they asked why Prop 8 didn’t just deny same sex couples a word, a label, the nomenclature of marriage? dignity The plaintiffs in the Prop 8 case insisted that the fight is not simply over a word.  It is a fight for dignity and respect.  They claim and indeed insist that denying the label marriage to the unions of same sex couples is an insult, a degradation, and a dignity harm.  Yet to do so is to take for granted that marriage is something sacred, something to be honored and something that dignifies those who earn its blessings.  It is to argue from within a normative universe whose values you take for granted and embrace.  And it is to base your legal arguments on the legitimacy of those values – the recognition of the harm alleged in the Prop 8 case depends on it.

Two alternatives to this position are possible.  One more legal, the other more political.  The first is, 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.

On this reading, Justices George and Kennard’s focus on the “mere nomenclature” of marriage as a label or a name was presaging a decision in which the mere label would be denied all couples, not just same sex couples.  If, as their questions implied, it’s not such a big deal to be civil union’ed instead of married since the rights are the same, that should hold true for straight and gay couples.   The gay community would be blamed (along with the California Supreme Court) for having destroyed the institution of marriage, when in fact it was the proponents of Prop 8 who accomplished this mean feat.  That sort of outcome would be legally sound, but politically explosive, surely.

The more likely outcome of the case is that a majority of the Court (a larger majority than in the Marriage Cases) will hold that Prop 8 merely amended, not revised, the California Constitution, because the equality rights of the plaintiffs were not substantially diluted by the language of the proposition, rather they were merely denied the label, a word.  This outcome would present us with a political challenge that some, though I’m afraid not most, of the lgbt community might seize – taking a step outside the universe that reveres marriage.   In this scenario, the disestablishment of marriage would not be the consolation prize, but rather the affirmative goal of our political and legal projects.  I’ve blogged before about the virtues of disestablishmentarianism when it comes to marriage.  On this view, “marriage equality” is a thin conception of justice, indeed.

Here’s my worry: we lose the Prop 8 case and then the lgbt community raises and spends $50 million to pass a proposition repealing Prop 8 next November.  As Richard Kim groaned at a forum at which we both spoke in December, “$50 million for a word!”  In these times, that’s an awful lot of money spent to gain the jurisdiction of a word that leaves out many, many people in our community who are in need of health insurance and other forms of security.  Lisa Duggan put it well at the same forum: “When you get laid off, marriage won’t help you.”

As always, events on the ground are outpacing any of the strategists’ ability to control them: Last week two college students  out in California were given the green light by the California Secretary of State to begin the process of placing on the November 2009 ballot a proposition that would repeal Prop 8 but also repeal the marriage laws, leaving domestic partnerships (whether between same or different sex couples) as the only unions recognized by the state.  Marriage would become a ceremony recognized only by religious and other non-governmental entities.broken-ring

I’d rather the California legislature did this, not the people of California though the ballot initiative process – but the new proposition – let’s call it Prop 9 – will surely garner opposition from marriage fundamentalists both within and outside the lgbt community.

Too bad, it’s actually a great idea.

– Katherine Franke


  1. Is marriage more than a word? Just try to take it away from the people who withhold it from us and ask the question again.

  2. http://blogs.law.columbia.edu/genderandsexualitylawblog/2009/03/16/prop-8-justice-willshould-the-california-supreme-court-abolish-marriage/

  3. This strikes me as a transparent charade. If the word marriage was not important than there was no reason to oppose proposition 8. The natural ballot measure to defeat prop 8 would be a proposition saying marriage is between two people of either or both sexes.

    Is that not going on the ballot?

  4. Deinstitutionalizing marriage is stupid. It will only increase the power of government and harm children.

  5. I imagine that the opponents of Prop 8 will organize, fundraise and work hard to get a new proposition on the ballot next year to remove the language of Prop 8 from the ballot. This could cost close to $50 million, if last year’s fight was any indication. Given that same sex couples already enjoy
    all of the same legal rights of married couples in California, the struggle will really be over a word. And the word is, to some degree, what we make of it. Remember the struggles of the ’80s and ’90s to take back the word “Queer” – that’s a kind of politics we seem to have lost sight of. Respectability is more our goal than re-making the world in keeping with our values. Why not fight to expand Civil Unions in California to be available to same and different sex couples – then marriage wouldn’t be so much the “property” of straight couples, and Civil Unions that of same-sex couples. This is the approach the Europeans have taken. And it’s had the longer term effect of diminishing the “special” status of marriage.

  6. We could say the same thing about white supremacy – the fact that it is tightly held and has payoffs for those who “have” it, doesn’t make getting it a proper goal of our social and legal justice movements.

  7. Thank you for this lovely and absolutely correct essay. Marriage is an ugly institution with an ugly history. Why should we fight to be equal to unfree heterosexuals? I’d rather work for universal health care, instead.

  8. […] from the four plaintiffs revealed over and over how on point this question was.  It echoed the questioning of California Supreme Court Chief Justice Ronald George in the arguments on the state marriage case.  It’s interesting that straight judges keep […]

  9. You have mentioned very interesting points! ps nice web site. “The appearance of right oft leads us wrong.” by Horace.

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