It might work if you’re a Montague or a Capulet, but for LGBT folks, marriage by any other name does not smell as sweet. Here’s the bottom line on why this issue is so important and pushes so many buttons:
Marriage = legitimacy.
That is, if LGBT folks can marry, it means that their relationships are legitimate. Socially sanctioned. Official. Recognized. Everything else hangs off of that. Everything.
“Domestic partnership” or “civil union,” regardless of how many rights they confer on the couple, does not carry the same weight that the word “marriage” has in our society or our psyches.
From an article in the L.A. Times last May:
Many gay Californians said that even the state’s broadly worded domestic partnership law provided only a second-class substitute for marriage. The court agreed.
Giving a different name, such as “domestic partnership,” to the “official family relationship” of same-sex couples imposes “appreciable harm” both on the couples and their children, the court said.
The distinction might cast “doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples,” [Chief Justice] George wrote . . .
The ruling cited a 60-year-old precedent that struck down a ban on interracial marriage in California.
Unfortunately, it looks like the CA Supreme Court (after making such a sweeping statement in the marriage cases that allowed LGBT marriage in CA in the first place!) will decide that Prop 8 is NOT a constitutional revision to the CA state constitution. Their argument being, in short, that LGBT folks have all the same rights under the CA domestic partnership, so what’s in a name? (You can see why the lawyers arguing the case were shocked to hear this reasoning after the Court’s decision last May.) It’s only taking away a little bit of the rights of a minority (i.e. suspect) class to let Prop 8 stand. And it’s not really a structural change to the CA constitution and therefore not really a revision. Plus, the “power of the people” is also a right and striking down Prop 8 would infringe on that. Here is a decent summary in the most recent issue of Time and a really good, more in-depth article in the L.A. Times.
Fortunately, the law is pretty clear on retroactive propositions in California: if retroactivity was not specifically stated in the proposition, then said proposition is not retroactive. Prop 8 does not have any language along those lines (regardless of the one weak statement in a rebuttal argument in a voter information pamphlet). This means that the 18,000 LGBT couples who married in California will most likely get to keep their marriages yet no more LGBT folks can get married.
So, I have a few questions for the Court: I wonder what happened to the power of the 48% of the people who voted against Prop 8? And splitting hairs on how much of a right we can take away? Once you open that door, where does it stop?