When it takes 136 pages to write a legal opinion, it's a pretty good bet that there are a whole lot of gymnastics involved.
So it was with yesterday's California Supreme Court decision upholding Proposition 8. It is replete with headstands, cartwheels, back flips and somersaults. All are employed trying to explain away a remarkable about-face that a majority of the court has taken in the course of one year.
It was just last May that the court issued its landmark Marriage Cases decision in which it held that a ban on same-sex marriages violated the equal protection clause of the California Constitution. The decision hinged on the key issue of whether denying the word "marriage" to gay couples whose domestic partnerships granted them all the legal and contractual rights of a marriage relationship constituted discrimination.
The court, rather eloquently, decided that it did. Here's part of what its 2008 opinion said:
"Whether or not the name 'marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes -- by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry."
In other words, the court said that when it comes to marriage there can be no such thing as separate but equal treatment under the law.
Fast forward to May 2009. A majority of the court flip-flopped. It upheld Proposition 8 because it determined that denying the term "marriage" to same-sex unions really wasn't that big of a deal after all.
Here's part of what the court now says:
"The measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."
Reasonable people can disagree on this core question in the marriage equality debate.
But it is dumbfounding that four justices who had studied and examined the question at great length, then summoned the courage to rule that the use of the word "marriage" was fundamental to protecting the constitutional rights of gay couples, could come to the opposite conclusion just 12 months later.
Theirs was a political decision, pure and simple. That's why it took 136 pages to try to legally rationalize it.
The one justice who had the courage of his earlier conviction was Carlos Moreno. Here's part of what he wrote in his dissent:
"Even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their 'officially recognized, and protected family relationship' a marriage, still denies them equal treatment."