Proposition 8 may put an end to marriage in California

The California Supreme Court very well could solve Proposition 8 by ruling that state cease issuing marriage licenses and directing the State to limit civil union licenses making no mention of the word marriage.

Should the Court have the votes to set aside the purported Constitutional amendment, it will, but that it will is less than certain; especially given the Justice Kennard’s announcement that she would dismiss the instant challenge to the proposition and rule on the validity of 18,000 same-sex marriages conducted prior to the vote on Proposition 8.

Perhaps a brief look at what In re Marriage Cases actually ruled would be helpful.  One of its conclusions was

that the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

There is no reason to believe that the Court is going to willingly reverse itself or permit itself to be reversed by an initiative, and it need permit the focus of its decision to be so treated.  Not when it sharpens its upcoming decision on the true focus of In re Marrige Cases:

 the state’s {Slip Opn. Page 101} assignment of a different name to the couple’s relationship poses a risk that the different name itself will have the effect of denying such couple’s relationship the equal respect and dignity to which the couple is constitutionally entitled.

In short, the unconstitutional inequity found by the SCOC was the denial of the name “marriage” to same-sex unions, while permitting the same to opposite-sex unions.  The cure the Court fashioned was to extend marriage to same-sex couples.

If Proposition 8 is upheld, the Court may no longer have the authority to order that same-sex marriage be permitted, if marriage is Constitutionally limited to a man and a woman, but the Court still has its Constitutional obligation to protect lesbian and gays from in-equal treatment under the law.  The two mandates seem irreconcilable.

The California Supreme Court Justices may have a surprise in store for those that would bludgeon it and the California Charter with the initiative power.  By denying licenses to “marry” to all without discrimination, the Court would avoid recognizing or validating marriages between anyone.  Hence it upholds the Constitutional amendment, while protecting same-sex couples from the stigma of being limited to a differently named union.

Such a ruling may sound harsh, but it would be a logical extension of the Court’s ruling in In re Marriage Cases.  At the same time, it would send a clear signal to the effect that the Supreme Court of California takes its Constitutional responsibilities very seriously, especially where the majority openly attacks a protected minority.