By Jackie Goldberg | The Daily Journal
Last May, the California Supreme Court’s powerful and eloquent In re Marriage Cases decision explained in ways no previous court had why restricting the familiar, esteemed title and status of marriage to heterosexual couples – and relegating lesbian and gay couples to the obviously inferior status of domestic partnership – is inherently unequal and demeaning. Even as the proud author of the domestic partner statute (AB 205), I did not hesitate for a moment to marry my partner of 29 years once the court made that dream a reality.
Chief Justice Ronald George’s majority opinion in Marriage Cases methodically noted that marriage has a “long and celebrated history,” that it is “unreservedly approved and favored by the community,” and that it performs a critical function of publicly validating family relationships. George recognized and emphasized that denying the marriage imposes “appreciable harm on same-sex couples and their children.” When the state adopts different terminology – different “nomenclature” – for the committed relationships of lesbian and gay couples, our chief justice emphasized, it validates discrimination and reinforces the notion, too long accepted in our culture, that gay people are “second-class citizens.” In short, this watershed decision acknowledged that labeling gay family relationships differently separates them from heterosexual families and amounts to segregation. It no more represents equality for gay men and lesbians today than “separate but equal” schools did for African American children a half century ago.
The court’s conclusion that this segregation is harmful, wrong and must end was thrilling for all of us who have lived our lives labeled as “less than” and excluded from one of society’s most esteemed institutions. For many of us, the chief’s authoritative clarity made us believe again that our courts really can be custodians of “justice for all” when firm principles matter. For many, gay and heterosexual alike, the ruling redeemed legal process in this sometimes cynical age.
The measure of that redemption less than a year ago now may be the measure of our concern now after the Supreme Court oral argument earlier this month in the cases challenging Proposition 8. To my surprise, questions from some justices suggested they may be preparing to retreat from their vital recognition that the nomenclature of marriage holds immense significance for same-sex couples, our families and society as a whole. Indeed, some of their questions hinted that they may be preparing to rule that the name “marriage” – and participation in the rituals, traditions and shared meaning of that institution – may not be so important after all. In other words, if a bare majority of voters assigns gay family relationships a different and lesser title and status perhaps it is, constitutionally speaking, no big deal.
Today, my worst fear is not that we may lose the argument over whether a measure like Proposition 8 can be enacted as a constitutional amendment. Rather, my worst fear is that in upholding voters’ unfettered power to enact discriminatory measures like Proposition 8, the Supreme Court may go further and trivialize the right and conceptions of equality it so powerfully affirmed less than a year ago.
It would be one thing for the court to uphold Proposition 8, saying: “Even though we do not agree with the voters, and even though Proposition 8 imposes separate and unequal treatment of gay and lesbian citizens, and even though it is inconsistent with our longstanding commitment to equality, California’s constitution requires us to let Proposition 8 stand.” A decision like that would be a setback, but it would not deprive us of even more than Proposition 8 took.
Much harder to accept would be a ruling that tried to minimize the harm of upholding Proposition 8 by suggesting that access to marriage is about a mere word and doesn’t mean that much to same-sex couples and their families; and that a separate-but-equal nomenclature for gay people poses no serious constitutional problems, and inflicts no appreciable harm. Even if such a ruling were intended to limit Proposition 8’s consequences for gay people and other disfavored minorities, the trivialization of marriage would hardly be worth the cost. The decision in Marriage Cases was not simply eloquent and groundbreaking, it was right.
We have seen why many of those fighting to deny marriage to gay and lesbian people do so, and while their views may be sincerely held, they are not benign. Many are fierce in contending that gay people are immoral and that a society that treats homosexuals as equal is sowing the seeds of its downfall. And they say they have a duty to put their beliefs to work in the world. We must never forget that similar convictions have fueled deeply harmful fights against justice throughout our history – to preserve slavery, to oppose immigration, to segregate African Americans, to marginalize those of minority faiths and to deny equal rights to women. We do not win those fights by minimizing the hurt of labeling and exclusion. Indeed, this is when principles matter.
There were bright spots during the oral argument. Some of the questions suggested the court will confirm that the roughly 18,000 same-sex couples who married before Election Day remain married, and that our state must respect them as such just as it does different-sex married couples. That would be good news for those of us who are married, and also because continuing legal respect for us will let us continue to show Prop. 8’s wrongheadedness. But if the court were to add that marriage doesn’t matter much – that there isn’t much difference between domestic partnership and marriage – I fear such commentary would diminish the benefit of a ruling upholding the pre-Proposition 8 marriages of California’s lesbian and gay couples. Most heterosexuals value their own marriages immensely, and a high court ruling minimizing marriage seems unlikely to change that. Thus a decision suggesting that “marriage” doesn’t matter much would likely be read by many as meaning that it doesn’t matter for gay people, even those who are married. And as the chief justice so insightfully explained before, state validation of the idea that gay people’s family relationships are different will be understood to mean that they are “less than” and will in turn reinforce the longstanding belief that gay people are second-class citizens. The social consequences likely would be bad, too, because so many already disrespect us.
The potential our marriages have to continue the normalization process to everyone’s benefit, would be diminished. And married same-sex couples who know firsthand that separate institutions like domestic partnerships are not equal would have something infinitely precious needlessly tarnished, and probably would find ourselves again, needlessly, in a diminished status.
And for those heterosexuals who don’t read a court message seeming to trivialize marriage as just addressing gay people’s marriages, what reaction? Perhaps resentment of those whose quest for justice prompted the court in the end to posit that marriage is not so special for anyone.
Should the court conclude that our constitution does not allow it to strike Proposition 8 as invalid, I hope at least it does not retreat from its powerful statement in Marriage Cases last May. The California Supreme Court got it right the first time: Words do matter, and the institution of marriage does as well. Separate is not equal for lesbians and gay men – whether or not that means having to win an election to restore our Constitution’s promise of equality.
Jackie Goldberg is a former California Assembly member and currently teaches UCLA interns in the Compton Unified School District. She and her spouse were married on Oct. 5, 2008.
This article appears on Page 6 of The Daily Journal.