State of Civil Unions: California Court Strikes Down Marriage Ban

The New Republic, May 20, 2008

“Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president,” the Obama campaign stated oh-so-carefully in response to this week’s California Supreme Court decision striking down the state’s ban on gay marriage.” He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”

It was a gracious response from a man the court had just branded as the legal equivalent of a segregationist.

What? You didn’t read that part of the opinion? Well, I’m exaggerating a bit, and the court didn’t mention Obama by name. But the opinion definitely imputes something invidious to those who believe in what Obama stands for about gay marriage.

The California justices declared the right to marry a person of one’s own gender a fundamental right, and they declared as well that it violates state equal protection doctrine for California to treat gay and straight couples differently for purposes of marriage. California has a domestic partnership law, which grants same-sex couples virtually all of the rights and obligations of marriage, making the current dispute one of nomenclature over the use of the word “marriage,” not about the substance of marriage rights. But as their colleagues in Massachusetts did a few years ago, the California justices treated this accommodation as a kind of “separate but equal” institution–which is to say, not an equal one at all.

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