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Los Angeles
Times
Opinion
Civil unions aren't
marriage
The M-word does
matter, and courts should make that clear.
EDITORIAL, from the
Web, March 8, 2008
Los Angeles, Mar. 8 -- In a
3½-hour session that sounded sometimes like a law school seminar and sometimes
like a radio talk show, the California Supreme Court this week wrestled with the
question of whether the state Constitution's guarantee of "equal protection of
the laws" requires the recognition of same-sex marriages.
The justices delved into whether sexual orientation is immutable, whether gays
and lesbians constitute a "suspect classification" deserving of special
protection by the courts, and whether a 1948 ruling against a ban on interracial
marriage was a precedent for invalidating a state law that describes marriage as
"a civil contract between a man and a woman." But the central issue in the
case was identified by Justice Carlos R. Moreno. Referring to the fact
that California grants same-sex couples the benefits of marriage under the term
"domestic partnerships," Moreno asked: "Doesn't this just boil down to the
use of the M-word -- marriage?"
The best response came from the lawyer for the city of San Francisco, which
briefly granted marriage licenses to same-sex couples in 2004. "Words
matter," Deputy City Atty. Therese Stewart said. "Names matter."
Indeed they do. In 2006, New Jersey's Supreme Court ruled that "committed
same-sex couples must be afforded on equal terms the same rights and benefits
enjoyed by opposite-sex couples under the civil marriage statutes." The
Legislature then passed a civil union law. Last month, a commission
assigned to evaluate that law found that civil union status wasn't recognized by
employers and was "not clear to the general public, which creates a second-class
status." Some of the problems identified in the report can be traced to
federal law; others reflect the fact that employers are forced "to try to fit a
square peg, civil union, into a round hole, systems relating to marriage."
California's domestic partnership law is subject to the same objections.
Ideally, full marriage rights for same-sex couples would come about through the
political process. In fact, the Legislature has approved same-sex marriage
legislation, only to have it vetoed by Gov. Arnold Schwarzenegger on the grounds
that it conflicted with Proposition 22, a ballot question approved by voters in
2000. That proposition can be read either as a ban on all same-sex
marriages or a refusal to acknowledge those entered into outside California.
But even if the court took a narrow view of Proposition 22, it would have to
overturn language in the state Family Code limiting marriage to opposite-sex
couples.
It may be, as Justice Carol Corrigan suggested at this week's arguments, that
evolving public attitudes will eventually lead to same-sex marriage -- M-word
and all -- without intervention by the judiciary. As we have said before,
we don't think same-sex couples should have to wait. In 1948, the court
was accused of thwarting the will of the people when it struck down the ban on
interracial marriage; it would face similar condemnation if it ruled that "equal
protection of the laws" requires the same treatment for heterosexual and
same-sex couples. But, as in 1948, the result would be the just one
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