What if California got out of the marriage business altogether? What if the state merely licensed or just recognized private, contractual civil unions with all the benefits of marriage, and couples went to the religious or private institution of their choice to sanctify their vows? Would that resolve the legal differences between Proposition 8 and the state Supreme Court's 2008 ruling that gay and lesbian couples were entitled to the same marital rights as heterosexuals?
These were the questions Justice Ming W. Chin posited during oral arguments on the proposition Thursday before the high court. To which both sides responded: Why, yes, it would.
The subject has come up repeatedly in blogs and conversations, but this was the first official, public forum to give it voice, and it shouldn't be the last. The argument frequently raised against same-sex marriage is that marriage represents a special bond, traditionally and biblicallyreserved for a man and woman. But under this approach, religions and other belief groups could continue to sanction marriage in accordance with their definitions, and the state could concern itself with the civil rights and responsibilities of two people who decide to share life, home, family and the remote.
Not that this would be easy to accomplish. Couples married under state law have reason to expect their status will last until they decide to change it. What's more, marital status is entangled with community property and many private legal agreements. Federal law would not recognize these civil unions for purposes of, say, joint tax filings.
Nor do we suggest that the court could, or should, take it upon itself to impose this solution. The court's role is to interpret laws, not make new ones, which is the job of the Legislature or, through the initiative process, the voters.
The most adamant opponents almost certainly would be the supporters of Proposition 8, the same people who argue that same-sex couples already have all the benefits of marriage through the state's civil union laws and are just quibbling about a label. Chances are that they won't see things the same way when it comes to changing the name of their own legal relationships.
But just as marriage and family traditions have altered dramatically -- with shorter and more frequent marriages in a lifetime, couples living outside the married state and prenuptial agreements that trump customary family agreements -- it is time to consider an altered state role in domestic legalities. Justice Chin opened the discussion, and it is worth continuing.
It won't be quick, though, and it won't be simple. In fact, by the time Californians are ready to embrace such a seemingly novel idea, they will probably also be ready to vote for same-sex marriage.