The M-word

In a 3 1/2-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.