Appeals Court Upholds Gay Marriage, Sort Of

Today’s victory for equal liberty was narrow, but important nonetheless. 

All that Prop 8 did was to deny gay couples the right to have their relationships labeled “marriage,” without any effect on the rights, privileges, and responsibilities attending that marital designation (which legal incidents California had already granted to gays who entered into civil unions).  As the court noted, there is no purpose in denying the use of the word “marriage” other than “to lessen the status and human dignity of gays and lesbians in California.”

Unfortunately, this technically good result might create perverse incentives for states who wish to give gay people substantive but not symbolic equality: the court did not say whether government can still give limited or no rights to gay unions, as long as it doesn’t give everything except the word “marriage.” 

But that just goes to highlight the messiness inherent in government involvement in a given policy area: were government out of the marriage business altogether, courts wouldn’t have to split hairs and legislatures wouldn’t have to gnash teeth.  

Let people decide for themselves how they want to live and whose recognition they value.  In the meantime, this case may be complete – the already hesitant Supreme Court may refrain from reviewing such a narrow ruling (which the Ninth Circuit could still take up en banc) – but the controversy will not soon end.