Why the California Supreme Court Decision Might not Be so Terrible

My high school friends and other acquaintances from California hometowns are maddened by the state supreme court's ruling on Proposition 8 yesterday, and rightly so—but I don't think all is lost for gay residents and allies who want to see the legal regime of heterosexuality reversed in marriage. In fact, after reading sections of the decision, I think the court leaves more loopholes than a wedding ring shop.

First of all, the court's reading of proposition 8 confines the amendment to a much narrower definition of marriage recognition for the state than I would have expected—and thus allows California to uphold the 18,000 that it has already issued to its residents, and possibly recognize same-sex marriages performed in other states as well (though the Court did not explicitly address the later issue in its decision).

Though Proposition 8 reads: “Only marriage between a man and a woman is valid or recognized in California,” but rather than completely strip same-sex relationships of the legal status afforded to straight couples, the court says this constitutional amendment only "carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage.” It is merely the name "marriage,"—albeit significant to advocates of equal protection for same-sex couples who, like me, can't help but compare this ruling to "separate but equal" hypocrisy—not the rights it confers, that this measure alters.

Though I agree that this amendment violates the ethos of the equal protection clause, both in California and in other states with similar constitutions, that's tough to argue, as advocates and dissenter Justice Carlos Moreno are finding. I wasn't expecting the court to bite the revision argument, which suggested that Proposition 8 constituted such a change to the constitution that it would require a 2/3 majority vote in the state legislature, and I'm willing to accept that this was the best outcome the court would offer supporters of marriage equality like me.

More heartening, the court has left room for another ballot initiative to come up and reverse this amendment—something that activist supporters are already working on for 2010. In liberally affirming the amendment process by which Proposition 8 became law, the decision implicitly suggests that, should a pro-gay marriage initiative were to be on the ballot and pass with a majority vote, it would be found constitutional too.

We just have to keep fighting to push this state over 50% next time.