I find it baffling to talk to older people about this, especially because they come from the 50% divorce generation. The idea that equal rights are ok, but that the name marriage is somehow unfit for gay couples is baffling to me in a country where state ordained marriage is not at all religiously affiliated. It is time for all states to get out of the business of judging which two consenting adults can marry. It would be one thing if states decided to issue partnership licenses to everyone and as Fish recommended get out of the marriage business altogether. But the system that exists now in most states is in my opinion, in violation of equal protection. I think the Court’s decision was the correct one, that qualifications based on sexual orientation are suspect and as Treyer said, determining whether a law complies with the state Constitution is the Court’s job, not bowing to public opinion or votes.

And in response to Adam’s point, California voters will likely have a chance to amend their constitution during the next election to make marriage constitutionally defined as between a man and a woman. I’m crossing my fingers that it fails.

If anyone is looking for a super quick summary of the Court’s reasoning, and doesn’t want to sift through 172 pages, the paragraph that starts on page 11 gives the four main reasons for the court’s decision. It reads like a great advocacy piece for equal marriage rights.

Under California’s statutory scheme for domestic partnerships, same-sex couples are afforded nearly all of the same rights and privileges as opposite-sex couples who are married. (They might be identical, but I don’t have the opinion in front of me to double check). The issue that the plaintiffs in the case were arguing was whether California’s refusal to call the same-sex arrangements a marriage was constitutional.

I think that is interesting because it moves California in a direction that has not been gaining much traction across the country over the issue of same-sex marriage: deinstitutionalizing marriage from the powers of the state. This is pretty significant. To me, the label of marriage is a religious or personal label. People usually get married in a church, or by a minister, or some other religious figure. However, for the purposes of the state, a marriage like that is not sufficient - you need to have marriage papers filled out so that you can officially be ‘married’ by the government. That arrangement weakens the church/state divide. Why does the government need to call the administrative papers it handles a ‘marriage’? Let the government be in the business of ‘civil unions’ and let personal convictions determine how you are to be ‘married.’ California’s decision, requiring all ‘civil unions’ to be called ‘marriages’, leaves the state one step away from getting out of the marriage business altogether. If opposition to same-sex unions is about the government’s legitimizing homosexuality by allowing gays to marry, then the state should stop marrying homosexual and heterosexual spouses completely, and just engage in civil unions. As is stands in California already, couples that are civilly wed or married by the state are equal before the government’s eyes. Thus, the only difference would be that the government would not have the power to ‘marry’ a couple.