Ballot Measure: "The Marriage Elimination Act"?

The Los Angeles Times reports today that a majority of Californians are inclined to vote for the "California Marriage Protection Act" in November.

Let's suppose they do. Then what happens? On the surface, one might assume a return to the status quo in California. Heterosexuals can get married, homosexuals cannot.

But there's another possible outcome: No state-sanctioned marriage for anyone.

Think that sounds a little extreme? Consider the following language from page 80 of Chief Justice Ronald George's majority opinion in In re Marriage Cases [.pdf]:

"We have no occasion in this case to determine whether the state constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a 'marriage,' or whether, as the attorney general suggests, the Legislature would not violate a couple's right to marry if -- perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage -- if it were to assign a name other than marriage as the official designation of the family relationship of all couples."

That's a big mouthful, but what George is saying essentially is, "Hmm, we could hypothetically resolve this whole mess by requiring the state to call all formal unions 'domestic partnerships' and leave it to the churches to decide who's 'married.' "

Later, when considering remedies on page 119, George reasons, "When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class."

George and the majority ultimately came down in favor of extending the benefit to everyone, rather than withholding it.

The full text of the voter initiative is, "Only marriage between a man and a woman is valid or recognized in California." So even if it passes, we still arguably have an equal protection violation.

So here's a question for the con law hotshots out there: If the initiative passes and another suit is filed, do you think the court would then be forced to choose the other remedy and withhold state-sanctioned marriages from everyone? Should the language in George's opinion be interpreted as threatening that outcome?

Please hit the comment button and tell us what you think.

—  Scott Graham

Comments

[Andi Liebenbaum]

I would hope that ANY equal protection violation is struck down, whether by legislation or Constitutional assault (I mean amendment). That being said, if, for some horrific reason, the Constitution does NOT get to protect the rights of all people to marry, then I submit that NO ONE MARRIES under the law. Leave it to the religious dogmatists to marry people. The rest of us prefer to be civil to one another. Was Ron George threatening? No, I don't believe that for a moment. What I do believe is that he was crafting his decision carefully and, in so doing, was laying the paving stones for the path along which the Constitution protects all people's rights to marry.

[Ellen Dolgins]

Andi Liebenbaum - I am trying to find you.