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Reneging on a right

ENDORSEMENTS 2008: By banning same-sex marriages, Prop. 8 would create second-class citizens.

August 08, 2008

It's the same sentence as in 2000: "Only marriage between a man and a woman is valid or recognized in California." Yet the issue that will be put before voters Nov. 4 is radically different. This time, the wording would be used to rescind an existing constitutional right to marry. We fervently hope that voters, whatever their personal or religious convictions, will shudder at such a step and vote no on Proposition 8.

The state of same-sex marriage shifted in May, when the California Supreme Court overturned Proposition 22, the ban on gay marriage that voters approved eight years ago, and ruled that marriage was a fundamental right under the state Constitution. As such, it could not be denied to a protected group -- in this case, gay and lesbian couples.

What voters must consider about Proposition 8 is that, unlike Proposition 22, this is no longer about refining existing California law. In the wake of the court's ruling, the only way to deny marriage to gay and lesbian couples is by revising constitutional rights themselves. Proposition 8 seeks to embed wording in the Constitution that would eliminate the fundamental right to same-sex marriage.

It's a rare and drastic step, invoking the constitutional-amendment process to strip people of rights. Yet in California, it can be done with a simple majority vote. All the more reason for voters to weigh carefully what would be wrought by this measure.

Supporters of Proposition 8 insist that the measure is in no way intended to diminish the rights of gays and lesbians, but instead means to encourage ideal households for the raising of children and to put a stop to activist judges. Besides, they say, domestic partnerships provide all the same rights as marriage.

In a meeting with The Times' editorial board, supporters argued at length that children are best off when raised by their own biological, married mothers and fathers. Even if that were true -- and there is much room for dispute -- this measure in no way moves society closer to such a traditional picture. Gay and lesbian couples already are raising their own children and will continue to do so, as will single parents and adoptive and blended families. Using the supporters' own reasoning, it would be better for same-sex parents to marry.

Proposition 8 supporters are right that domestic partnerships come exceedingly close to guaranteeing the same rights as marriage, as the state's high court recognized. Still, there are differences. Some are statutory -- domestic partners must share a residence, while married couples can live separately -- and others are pragmatic -- studies have found that domestic partners do not receive the same treatment or recognition from hospital staff, employers and the public as spouses do.

But it was Ronald M. George, chief justice of the California Supreme Court, who cut through to the essence of the issue in the May 15 opinion he wrote: "[A]ffording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."

In other words, the very act of denying gay and lesbian couples the right to marry -- traditionally the highest legal and societal recognition of a loving commitment -- by definition relegates them and their relationships to second-class status, separate and not all that equal.

To be sure, the court overturned Proposition 22, a vote of the people. That is the court's duty when a law is unconstitutional, even if it is exceedingly popular. Civil rights are commonly hard-won, and not the result of widespread consensus. Whites in the South vehemently rejected the 1954 Supreme Court decision to . For that matter, Californians have accused the state Supreme Court of obstructing the people's will on marriage before -- in 1948, when it struck down a ban on interracial marriages.

Fundamental rights are exactly that. They should neither wait for popular acceptance, nor be revoked because it is lacking.

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