Ending the gay-marriage war

California's ruling may point toward 'marriage unions' as a solution.

from the May 22, 2008 edition

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The issue concisely posed by the chief justice is whether the difference in the official names of the marriage relationship – "marriage" for opposite-sex couples and "domestic partnership" for same-sex couples – violates the California Constitution.

One need not ascribe to the majority's view that the difference in terminology is constitutionally untenable to recognize that words matter. It is surely understandable why same-sex couples who are constitutionally entitled to all the rights and benefits of marriage do not wish to have their license bear a different designation. One can imagine, for example, the resistance of heterosexual couples to a licensing scheme that reserved the word "marriage" for first marriages, and compelled those who remarried to seek a "remarriage" license.

It is, in fact, precisely the chief justice's sensitivity to words that prompts him to indirectly suggest to the California legislature how to moderate the aftershock. He suggests that lawmakers could assign a name other than marriage as the official designation of the formal family arrangements for all couples, "perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage...."

That invitation, coupled with the 30-day delay before the decision is effective, provides the California legislature with an unparalleled opportunity to preserve the fundamental fairness of the court's decision. An official designation of the constitutionally protected and legislatively enacted right to the benefits and protections for all couples as "marriage unions" would assuredly be constitutional under the majority's rationale.

Some, of course, would prefer to refight the political war over the marriage word. It is doubtful that new insights will be gained from another protracted battle between pro- and anti-gay marriage activists. "Suppose you go to war," said Abraham Lincoln, "you cannot fight always; and when, after much loss on both sides, and no gain on either, you cease fighting, the identical old questions ... are again upon you."

California has experienced a judicial earthquake. It can provide the rest of the nation with a lesson on how to avoid devastating aftershocks. "Marriage unions" just might do it.

• Jeff Amestoy is a former chief justice of the Vermont Supreme Court and a fellow at the Center for Public Leadership at Harvard's Kennedy School. He was the author of Baker v. State, the 1999 decision of the Vermont Supreme Court that led to the nation's first civil-union statute.

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