February 8, 2012

IS IT UNCONSTITUTIONAL to forbid same-sex couples from calling their unions a “marriage” if — as is the case in California — they enjoy the same legal rights and responsibilities as opposite-sex partners in the state?

Words matter, and we believe the march toward legalized marriage for gay and lesbian couples is not only right but inevitable if this country is to fulfill the promise of equality under the law for all its people. But how this indisputably just result is achieved is important, in no small part to ensure that it is sustainable.

The decision this week by a federal appeals court in California to strike down the state’s Proposition 8, which restricted the use of the word “marriage” to the union of one man and one woman, is a wobbly piece of jurisprudence that should not serve as a model. Because it applies only to California, it also should not go to the Supreme Court as a test case on same-sex marriage.

Judge Stephen Reinhardt, a liberal lion of the federal bench, attempted to camouflage the decision of the U.S. Court of Appeals for the 9th Circuit as narrow and temperate, but it mischaracterized Supreme Court precedent to justify the nullification of Proposition 8. Much of the decision hinges on Romer v. Evans, a 1996 Supreme Court decision that struck down a Colorado constitutional amendment; the measure had invalidated local ordinances that barred discrimination on the basis of sexual orientation. The high court deemed the amendment unconstitutional because it specifically targeted gays, then stripped them of substantive legal protections.

Here, on the other hand, is Judge Reinhardt’s rationale for why Proposition 8 does not pass constitutional muster: “A rose by any other name may smell as sweet, but to the couple desiring to enter into a lifelong committed relationship, a marriage by the name of ‘registered domestic partnership’ does not.” Sweet it may not be, but as Judge Reinhardt himself noted, the California proposition left intact the full panoply of substantive legal rights enjoyed by same-sex couples.

Ironically, trial court Judge Vaughn Walker did a much better job of documenting and arguing the far broader question of why the Constitution demands the recognition of same-sex marriage. In deciding the case on presumably narrower grounds, Judge Reinhardt wrote that the appeals court did not need to address Judge Walker’s more expansive conclusions.

Courts should tread lightly when scrutinizing democratically enacted provisions and should strike them down only if they unequivocally offend constitutional guarantees of due process and equal protection. There is a danger of backlash when courts stretch the law too far to meet desired goals. The California Supreme Court’s strained reading of the state constitution to mandate same-sex marriage gave rise to Proposition 8. The possible negative consequences of the 9th Circuit’s decision may be more far-reaching, discouraging states from adopting civil unions or domestic partnerships for fear that they may one day be forced to recognize same-sex marriages. We believe that same-sex couples should be allowed to marry, but it would be unfortunate if they were deprived of the significant protections afforded by these other designations.

There may come a time when court action will be necessary to ensure full equality for same-sex couples. The Supreme Court has not tackled this issue, but we take comfort in knowing that it has made clear that the Constitution will not abide the singling out of gays and lesbians for discriminatory treatment. And we continue to hold out hope that such intervention will not be necessary. In recent years, six states and the District of Columbia have recognized same-sex marriage; Washington state stands poised to join them. Lawmakers and voters of good will throughout the country should follow suit and extend to all committed, loving couples the blessings of the law.