The Nation's Pulse

California Dreamin’

If you think the courts will accept civil unions in place of gay marriage, that is.

By 5.16.08

Think civil unions are a reasonable compromise that will settle the controversy over same-sex marriage? Let the supreme court of California disabuse you of that notion. In a 4 to 3 decision, the California supremes ruled (pdf) yesterday that nothing less than full gay marriage will do.

Until then, California had clearly staked out the middle ground in the marriage debate. Since 1977, long before advocacy of gay nuptials went mainstream, state law explicitly defined marriage as "a personal relation arising out of a civil contract between a man and a woman." In 2000, California voters adopted Proposition 22, which decreed that only traditional marriages would be recognized as valid in the state. The ballot initiative passed with over 61 percent of the vote.

But the Golden State was also quite liberal in recognizing same-sex relationships. In 1999, the year before Proposition 22 passed, the California legislature enacted the first domestic-partnership registry in the country to be created without judicial intervention. Even the state supreme court recognizes that domestic partnerships in California afford "virtually all of the same substantive legal benefits and privileges" as traditional marriage.

The fragile compromise withstood repeated challenges from both sides. Social conservatives tried to block the domestic partnerships with unsuccessful legal challenges, arguing that the civil union-like policies were an attempt to countermand the state's statutory definition of marriage. The author of Proposition 22 tried to amend the state constitution to prevent any recognition of same-sex domestic partnerships, but the measure failed to qualify for the ballot. Similarly, liberals in the state legislature have tried to broaden domestic partnerships into full-fledged gay marriage. Gov. Arnold Schwarzenegger has twice vetoed such proposals.

Yesterday, the California supreme court upset the apple cart. Far from being a compromise, domestic partnerships led directly to same-sex marriage. The court in effect rejected the arrangement as separate but equal. The narrow majority held that calling heterosexual unions "marriage" and homosexual unions "domestic partnerships" violated, among other provisions, the equal protection clause of the state constitution and the constitutional right to marry. The latter right, they ruled, must be guaranteed "to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."

Most Americans are of two minds on this divisive issue. They wish their gay friends and neighbors no ill will and have no desire to deprive them of hospital visitation, freedom of contract, or the general right to be left alone. But they also wish to be left alone themselves rather than being forced to recognize or subsidize the lifestyles of others. The majority still understands that marriage exists not to give some kind of Good Housekeeping seal of approval to various romantic couplings but in recognition of the biological fact that sex between men and women often results in children. These relationships require a framework that makes it more likely that such children will be raised in a stable environment by fathers and mothers -- marriage is, or was, that framework.

It was these two competing desires -- making it easier for gays to live their lives freely while upholding the ethos of marriage -- that gave rise to civil unions and domestic partnerships. It was a compromise that was never terribly likely to work, as it is difficult to ascertain a compelling state interest in forcing two domestic partners to stay together unless their relationship is treated as "marriage lite." Decoupling the non-fundamental incidents of marriage from the institution itself was always a better way of striking the delicate balance between tolerance and traditional marriage.

Domestic partnerships undercut the logic of preserving marriage while failing to satisfy those who want recognition rather than benefits. If couplehood is the state's only interest, what's in a name? So it is unsurprising, and almost appropriate, that such arrangements became the instrument of traditional marriage's overthrow in California.

The supreme court may not have the last word on the matter. Social conservatives have already collected over 1 million signatures to put a state constitutional amendment called the California Marriage Protection Act on the ballot. If certified by the secretary of state, it could appear this November. If passed, it would overturn the ruling.

Expect virtually the entire state political class to be opposed to such an amendment or AWOL. Governor Schwarzenegger, who once opposed redefining marriage, has already come out against it. Few politicians were ever punished for deferring to the judges in Massachusetts, Vermont or New Jersey. The courts don't seem to be deterred by the repeated passage of state defense-of-marriage amendments.

No, civil unions and domestic partnerships will not resolve this debate. If social liberals and their judicial allies have anything to say about it, neither will democracy.

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About the Author

W. James Antle III is politics editor of the Washington Examiner and the author of Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter @jimantle.