When my wife Lynne and I were deciding whether to get married here in California, Prop 8 loomed in our consciousness. Lynne thought Prop 8 would fail and wanted to hold off on our wedding until spring when we could properly plan it. I was not so confident, and wanted to make sure we married before the election. I thought that if Prop 8 did pass, there was a very slim chance that our marriage might be grandfathered in.
So I persuaded Lynne to do a small ceremony with a handful of people to make it official, and then a larger one with friends and family in the spring. I’m not sure if she agreed with my prudence, was just humoring me, or liked the idea of having two weddings. But that is what we did. We married in September ’08 on a backpacking trip in the Sierra Nevada mountains. Then we had another, much larger wedding in March ’09 in Topanga Canyon near Malibu.
The Prop 8 outcome was devastating, of course. And then there was the wait to find out what would happen with the couples like us who had already married. The conventional wisdom was that we would be grandfathered in, while Prop 8 would be upheld and there would be no further same-sex marriages. However, the conventional wisdom made no sense to me because I could not imagine the California Supreme Court arriving at such an odd outcome. As an attorney, I could see the court coming to the wrong conclusion, but not such an internally inconsistent one. But an internally inconsistent outcome is what we got.
It is because of this outcome that counsel for plaintiffs, Ted Olson and David Boies, have a chance in Perry v. Schwarzenegger. The current situation in California is unique. The Supreme Court reiterated post-Prop 8 in Strauss v. Horton that same-sex couples are entitled to enjoy all the rights the state can confer that opposite-sex couples enjoy, except for the right to call their unions marriages, and except for the exception to the exception, that same-sex couples who were married during the window would still be permitted to be married. To describe the situation is to highlight the absurdity of it.
The strength of Perry lies in this irrationality. Allowing California same-sex couples to obtain all the rights of marriage through domestic partnerships, without allowing them the right to actually marry, shows that there is no legitimate reason for denying same-sex couples that right. The denial has no other purpose than to demean same-sex relationships, or, to use the legal term, to show animus. In the 1996 case Romer v. Evans, the U.S. Supreme Court already ruled that animus alone is no reason to deny any group, including gays and lesbians, the equal protection of the laws. Olson and Boies seek to build on that ruling.
The uniqueness of California’s situation also means that a positive ruling could be limited to California. Courts often like to keep their rulings narrow, and they could do so here. In Perry, the court need not decide that same-sex couples throughout the country have the right to marry under the U.S. Constitution. It need not even decide whether civil unions and robust domestic partnerships are impermissible separate-but-equal constructions. The court could simply decide that a regime like California’s — where some same-sex couples can be married, but others, through a fluke of timing, cannot –is so irrational that it cannot stand. And according to that reasoning, the court could strike down prop 8 in California as a violation of equal protection, and leave the status quo throughout the rest of the country.