Columnists Steve Chapman and Dennis Byrne have now both made the point — Chapman in the Tribune on Sunday, Byrne in the Tribune on Monday — that when it authorized gay marriage the California Supreme Court was just messing with semantics. The decision “changes, well, practically nothing,” writes Byrne. “California already has extensive laws granting same-sex couples virtually the same rights as opposite-sex couples.”
And Chapman remarks, “But it’s not enough [in the court’s view] for them to get the substance of marriage. The court said they must also get the same terminology.”
Byrne and Chapman are right. The court acknowledged what it was up to. “The issue we must resolve,” said the majority, is “whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designed a ‘marriage’ whereas the union of a same-sex couple is officially designated a ‘domestic partnership.'”
Is this a distinction without a difference? No, said the court, because separate but equal cannot in the end be equal: “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.”
Chapman and Byrne each noted that in a 2000 initiative, California voters approved by almost a two-to-one margin a statute saying, “Only marriage between a man and a woman is valid or recognized in California.” (The supreme court just found that statute unconstitutional.) “I thought the majority was wrong,” Chapman writes. “But democracy doesn’t say the people will always be right. It merely says they have the right to decide most matters of public policy. Here, by contrast, the California Supreme Court says the citizenry has no right to define marriage the way it has been defined by custom and law for eons.” He wished the court had stayed on the sidelines “while the people of California continued on their path toward full equality for gays.”
California passed laws in 2003 and 2006 expanding the rights and obligations afforded by a domestic partnership, and last year Governor Schwarzenegger signed a bill allowing either or both partners to change their names. But it’s a two-way path. Even before the supreme court was heard from a petition drive was under way in California to make same-sex marriage unconstitutional. And Byrne applauds. In his column he concedes that it’s a proper function of a supreme court to declare some rights “so fundamental that they cannot be voted away by a majority, or even a supermajority, of the citizens or their representatives.” After all, that’s “how a U.S. Supreme Court led America into ending legal racial discrimination.” But with that nod to the past, Byrne rejoices that “thankfully . . . hundreds of thousands of citizens have petitioned for a constitutional amendment” that would put same-sex marriage “out of reach of an autocratic court.”
What’s in a word? When the word is “marriage,” apparently a lot. Throughout its 121-page opinion, the supreme court refers to “civil marriage,” which in a way misses the point. A footnote observes, “From the state’s inception, California law has treated the legal institution of civil marriage as distinct from religious marriage,” (emphases in the original). But the public doesn’t make so sharp a distinction. We all know people who got married at city hall, but we tend to think of marriage in terms of churches and clergy and holy vows. We think of it as a sacrament, and surely one reason why so many people in our church-going nation are so hostile to gays marrying is the idea that marriage would be desanctified. Yet what business is it of a legislature, governor, or supreme court to tell a church what its sacraments can and cannot be? If the division of church and state means anything, it means that. “No religion will be required to change its religious policies or practices with regard to same-sex couples,” says the court, in another of the opinion’s rare references to religion, “and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” But what critics of last week’s California ruling surely know is that many a religious officiant can’t wait to solemnize such a marriage.
I’m a little puzzled that more aren’t doing so already. The supreme court pictured a gay person in a new employment situation who’s asked “married or single?” and replies “domestic partner” — thus “disclosing his or her homosexual orientation, even if he or she would rather not.” It seems to me a domestic partner in a relationship some church has solemnized could honestly tell a new boss, and the world, “married” — even though the new boss (and most of the world) might disagree.
Frightening thought, I guess. Byrne ends his column on a note of panic. He’s just applauded the petition drive in California to amend the constitution. “Now comes the scariest part,” he continues (though the drive didn’t scare him at all): “One of the many supporters (I didn’t get his name) of the court decision interviewed on television was asked what would happen if the people approved a constitutional amendment defining marriage as only between a man and a woman. Would the court go so far as to overturn a provision of the Constitution itself? ‘I don’t know. I hope so,’ he said.
“By which we are provided a window into the mind of a tyrant.”
Tyrant? Or maybe a guy misled by the question who doesn’t know much about the division of powers.
POSTSCRIPT: I’m always happy to link to someone smart who agrees with me, so here’s Eric Zorn in Thursday’s Tribune. And while I’m at it, here’s me in 2004.