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Let no judge put asunder

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IT COULD have been different. If Gov. Arnold Schwarzenegger had signed a bill in 2005 legalizing same-sex marriage instead of vetoing it, the California Supreme Court would have been spared the task of deciding, as it probably will this year, whether a voter-approved ban violates the state Constitution’s guarantee of equal protection under the law.

But Schwarzenegger said he had to respect Proposition 22, approved in 2000, which states: “Only marriage between a man and a woman is valid or recognized in California.” Whether committed same-sex couples will be relieved of second-class status now depends on the state Supreme Court. And as Superior Court Judge Richard A. Kramer’s ruling notes, the state Constitution trumps any ballot question and entitles same-sex couples to what he called “the last step in the equation: the right to marriage itself.”

In other states, including Massachusetts, courts have focused on the “incidents” of marriage -- such as joint ownership of property, shared custody and survivors’ benefits. Kramer, however, placed the emphasis where it should be: on the word “marriage.”

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There’s the rub for many Californians who are otherwise willing to accept domestic partnerships or civil unions. Political operatives have a term for this position: ABM, or “anything but marriage.” The fixation on the M-word is more emotional than logical, and no doubt reflects the fact that the word “marriage” refers to both a civil partnership and a religious rite.

The M-word certainly makes the politics more difficult. Massachusetts is the only state where same-sex civil marriage is legal -- and even there, the Legislature took the first step Tuesday toward allowing a popular vote on a constitutional amendment banning it. At the federal level, Congress enacted the Defense of Marriage Act in 1996, defining marriage as between a man and a woman and saying that states need not recognize same-sex marriages contracted elsewhere. Forty-five states prohibit same-sex marriage in their laws or constitutions; seven passed anti-gay-marriage referendums in November.

Given the political appeal of ABM, it’s remarkable -- and praiseworthy -- that California legislators voted to extend to same-sex couples both the symbolic and practical advantages of marriage. But Schwarzenegger’s veto requires the state Supreme Court to consider the different question of whether ABM is constitutional.

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This procedural history gives lie to the claims of opponents of same-sex marriage who insist that it is the invention of “activist judges.” It should also guide the state Supreme Court to a decision to adopt Kramer’s view that California’s previous acknowledgment of same-sex unions “points to the conclusion that there is no rational state interest in denying them the rites of marriage as well.”

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