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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.
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