IT COULD have been different. If Gov. Arnold Schwarzenegger had signed a bill in 2005 legalizing same-sex marriage instead of vetoing it, the California Supreme Court would have been spared the task of deciding, as it probably will this year, whether a voter-approved ban violates the state Constitution's guarantee of equal protection under the law.
But Schwarzenegger said he had to respect Proposition 22, approved in 2000, which states: "Only marriage between a man and a woman is valid or recognized in California." Whether committed same-sex couples will be relieved of second-class status now depends on the state Supreme Court. And as Superior Court Judge Richard A. Kramer's ruling notes, the state Constitution trumps any ballot question and entitles same-sex couples to what he called "the last step in the equation: the right to marriage itself."
In other states, including Massachusetts, courts have focused on the "incidents" of marriage -- such as joint ownership of property, shared custody and survivors' benefits. Kramer, however, placed the emphasis where it should be: on the word "marriage."
There's the rub for many Californians who are otherwise willing to accept domestic partnerships or civil unions. Political operatives have a term for this position: ABM, or "anything but marriage." The fixation on the M-word is more emotional than logical, and no doubt reflects the fact that the word "marriage" refers to both a civil partnership and a religious rite.