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Let no judge put asunder

California's high court should heed the state Constitution and approve same-sex marriage.

January 03, 2007

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.

The M-word certainly makes the politics more difficult. Massachusetts is the only state where same-sex civil marriage is legal -- and even there, the Legislature took the first step Tuesday toward allowing a popular vote on a constitutional amendment banning it. At the federal level, Congress enacted the Defense of Marriage Act in 1996, defining marriage as between a man and a woman and saying that states need not recognize same-sex marriages contracted elsewhere. Forty-five states prohibit same-sex marriage in their laws or constitutions; seven passed anti-gay-marriage referendums in November.

Given the political appeal of ABM, it's remarkable -- and praiseworthy -- that California legislators voted to extend to same-sex couples both the symbolic and practical advantages of marriage. But Schwarzenegger's veto requires the state Supreme Court to consider the different question of whether ABM is constitutional.

This procedural history gives lie to the claims of opponents of same-sex marriage who insist that it is the invention of "activist judges." It should also guide the state Supreme Court to a decision to adopt Kramer's view that California's previous acknowledgment of same-sex unions "points to the conclusion that there is no rational state interest in denying them the rites of marriage as well."

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