(reprinted from a comment in Buhdy’s essay.)
After reading today’s Prop 8 opinion, the court’s ruling is not nearly as bad as some have made it sound.
Instead, 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.
By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage – albeit significant – that has been removed by this initiative measure.
Basically, the court is saying that same sex couples can have all of the same rights and privileges afforded to straight couples; they just can’t call it ‘marriage’. Not the ideal outcome obviously, but in terms of legal protections for same sex couples, the court’s ruling neuters the potential effect of Prop. 8 to mere semantics.