A year and a day after oral arguments in In re Marriage Cases, March 5, 2009, the California Supreme Court heard oral arguments in Strauss v. Horton. That case — brought by the ACLU, NCLR, Lambda Legal and others and urging the Court to invalidate Prop.osition 8 — is a completely different case than the Marriage Cases. In it, we're arguing that because Prop.. 8 selectively takes away a fundamental right, the right to marry, from a single, disfavored minority, gay and lesbian Californians, it so undermines the equality guarantee in our state constitution as to result in a change to the very structure of government. Before Prop.. 8, we had a government in which the rights of minorities were protected from the whim of the majority; if Prop.. 8 is upheld, we won't have that kind of government anymore.
Nonetheless, the oral arguments last Thursday felt similar to those in the Marriage Cases — and not in a good way. The first question a Justice asked on Thursday was whether taking away the "nomenclature" of marriage was really infringing on the fundamental right of marriage, when all the other rights and responsibilities of marriage would stay intact. Um, YES, was what I and I think many others watching the arguments wanted to shout. Didn't you decide this last year?? To my mind, the extension of all the incidents of marriage — including the "nomenclature" — to gay and lesbian Californians was exactly what made the decision last year so incredibly important: finally, the full recognition of equality under the law for LGBT relationships.
Of course, until it issues a decision, we can't know what the California Supreme Court will decide in Strauss, but I don't feel too hopeful. And this is sad. In making the arguments we made in Strauss, we knew we were asking the Court to rule in way it has not ruled before — though it hasn't ever reviewed anything like Prop. 8 before. But if the Court chooses to rule in this case by saying that the name of marriage isn't really necessary for equality — gay people can be relegated to civil unions or domestic partnerships, as long as they have the same rights and responsibilities of marriage — then the Court on its own will be undermining the impact of its decision in the Marriage Cases. The Marriage Cases decision will still be an important one and will still get us more equality, but it won't quite get us all the way there — all the way to full equality.
Despite all this, I actually feel pretty good about where California is going politically on marriage equality. In 2000, after all, we lost on Prop. 22 by a 23-point margin. On Prop. 8, we only lost by a four-point margin. So, we will have marriage equality again in California — we just all have to continue to work to get it, one vote at a time.
Photos by Michael B. Woolsey, ACLU of Northern California