Ending the gay-marriage war

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

If state supreme court decisions were measured on a constitutional Richter scale, then California has just had "the big one."

The same-sex marriage opinion of the Supreme Court of California is extraordinary in its scope and length – 172 pages including the concurring and dissenting opinions of the 4-to-3 decision. Writing for the majority, Chief Justice Ronald George persuasively articulates the powerful constitutional arguments for same-sex marriage equality.

The counterargument – that recognition of same-sex marriages is a decision for the legislature – is succinctly advanced by dissenting Justice Marvin Baxter. One could not find a better primer on the constitutional issues inherent in the gay marriage debate.

The court's decision may be most significant, however, in its attempt to minimize the "aftershock." The majority acknowledged – as a state constitutional court must – that the ultimate decisionmakers in matters of constitutional law are "the people themselves."

There has been no more dramatic demonstration of this constitutional truism than the public reaction to state court decisions recognizing same-sex marriage equality. From state constitutional amendments in Hawaii and Alaska that essentially nullified judicial recognition of the legitimacy of gay marriage claims, to the passage of state constitutional amendments in more than two dozen states that prohibit courts from even considering such claims, to the more than 1 million signatures already gathered in California to enable citizens to abrogate the Court's decision by ballot in November, voters have made clear that the court's word is not the final word.

The California Supreme Court's decision is remarkable in its attentiveness to the dynamics of state constitutionalism. It comes as no surprise that Chief Justice George, the experienced and highly regarded leader of the largest judicial system in the United States, has thought carefully about how to avoid the enormously detrimental consequences of a continuous culture war over gay marriage.

The key to George's approach lies in the way he frames the issue. The chief justice notes that the California legislature has already provided same-sex couples with access to all the rights and benefits of marriage. This, he explains, distinguishes the question before the court from the one addressed by the Vermont and Massachusetts Supreme Courts, which decided whether same-sex couples ought to have the rights and benefits of marriage.

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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