Equal Rites and Equal Rights

Abstract:     
On May 15, 2008, the California Supreme Court handed down its much-anticipated decision in In re Marriage Cases. In the weeks and months that have followed this historic announcement, most commentators have focused on the decision's role in extending marriage rights to same-sex couples, and on the denomination of gays and lesbians as a suspect class, entitled to the most rigorous constitutional review. In this Remark, I argue that the importance of In re Marriage Cases goes beyond these two significant accomplishments. Although the decision has been lauded as introducing same-sex marriage to California, it also permits the state, in the name of family equality, to eliminate the marriage label in favor of another status that would apply equally to same-sex and opposite-sex couples. In so doing, the decision provides a means of circumventing a pending ballot initiative in California, which would undermine the decision's force by amending the California Constitution to preclude same-sex marriage. Moreover, in making clear the constitutional commitment to family equality the Court's decision invites us to confront important questions about marriage's role in securing equal rights and the state's role in ensuring equality in intimate life.

Number of Pages in PDF File: 11

Accepted Paper Series