At least that’s the view of three UC-Berkeley law professors we called for insight into today’s Supreme Court ruling on Prop 8.
“There is absolutely no distinction in the law’s eyes between those gay married couples and heterosexual married couples,” constitutional law scholar Jesse Choper said. “They have exactly the same rights,” he said, at least under California law.
That’s a “bittersweet outcome,” at best … after the jump.
It’s probably a bittersweet outcome for those lucky 36,000 people, says Goodwin Liu, a constitutional and civil rights professor. “The upholding of Prop 8 means they are viewed as an exception rather than the rule, and that’s often an uncomfortable position to be in.”
Those who didn’t marry in that window continue to have the same legal rights and obligations they’ve always had under the domestic partnership laws, said Herma Hill Kay, who teaches family law. Those include rights to property, inheritance, and all “the tangible aspects of married life.”
But if you want to go beyond the narrow holding, which is what Kay said she believed the court was trying to say it was all about, one important thing has been taken out of the constitution: the language in the Marriage Cases that confers the right to dignity and respect. “This amendment does permit the majority to take away at least one part of the rights formally enjoyed by same-sex couples,” she said. “By putting in the constitution that it’s okay to limit the word ‘marriage’ to opposite-sex couples means that that part of the opinion has been reversed.”
Kay threw another question into the mix: “Suppose the Legislature did away with both the term “marriage” and “domestic partnership?” If they called it civil unions, she wondered, “does that violate Prop 8?”
Proponents of same-sex marriage have been saying that time will be on their side, and Liu noted that the state’s brief window of gay marriage may help that.
“In practical terms, there are 18,000 couples who now supply a living embodiment of what it means to have same-sex marriage in our society, and my guess is that the continuation of those marriages will offer us some examples and a kind of touchstone to say that the world doesn’t end when same-sex couples get married.”
(Your guide to our coverage of the Prop 8 decision is here.)
— Petra Pasternak