If the California Supreme Court watchers are right, I’m on the verge of owning a rather odd document: a marriage certificate from a state that doesn’t let gay people like me marry. Maybe my certified copy — now filed neatly away between old bank statements and my lease — will become a collector’s item. Like Confederate currency. Or trading cards for defunct baseball teams.
During oral arguments last week over the future of Proposition 8, key justices projected their aversion to overturning that constitutional amendment banning same-sex marriage. But they also betrayed an unwillingness to undo the “I do’s” of 2008. Even Kenneth W. Starr, who argued that Californians have the right to amend their Constitution however they see fit, mostly conceded this point. “I don’t believe Proposition 8 invalidates those marriages,” he said. “What it does do is deny recognition.”
This is a funny trick Starr expects California to pull off. The state will just cover its bureaucratic eyes, he suggests, and sort of pretend it all never happened.
Yet, rather than dread my potential future of semi-suspended matrimony, I’ve decided to embrace it. On this roller-coaster trip toward full civil rights for gays, this could be the fun part of the ride.
It’s the moment when the anti-marriage-equality forces might want to coast downhill, to revel in their courtroom comeback, to finally savor their 52.47 percent victory at the polls last November. To the most smug among them, I will be able to say this:
I’m still married.
A $50-million election battle, two high-court showdowns, and what do the pro-Proposition 8 folks have to show for it? California still has what is likely the largest population of married same-sex couples — an estimated 18,000 — anywhere in the world. That’s 18,000 raspberry seeds stuck in their teeth for years to come. California won’t be a gay-marriage-free zone again unless we all die or move. If they believe Proposition 8 hollows out my marriage, well, my marriage hollows out their political victory.
I am loath to admit this, but aspects of Starr’s argument hold some sway with me. I want each state to be able to establish its own guiding legal framework, within the parameters of the U.S. Constitution. (I do wish it weren’t quite so easy to alter the Constitution here in the Golden State.) And, given that reinstating the death penalty was acceptable as a California constitutional amendment, I have a hard time understanding how banning gay marriage wouldn’t pass muster too.
Shannon Price Minter, legal director of the National Center for Lesbian Rights, argued against Proposition 8 on Thursday, nobly countering that gays have an inalienable right to marry. Upholding the proposition, he said, would enshrine “our outsider status” in the state Constitution.
No disrespect to Minter, but if that happens, so be it. For now, I’ll be a marriage outlaw.
Not all of my fellow outlaws will see the humor in the absurdity of our situation. Some will feel demeaned by the asterisk that this ruling could slap on their marriages, or fear that they may become a historical footnote. Like those people, I deeply believe that the other 90,000 or so gay couples in this state should, if they choose, be able to marry in the future. But I can also revel in the paradox of being married by a state that denies it means anything. Because the paradox is certain to be short-lived. We are in an awkward legal adolescence on this issue, but we will outgrow it.
Fractional matrimony in California — like fractional citizenship of any kind — is untenable. Just this week, married same-sex couples in Massachusetts filed suit in federal court. Their case asserts that the U.S. government is obliged to recognize their unions, that it cannot choose to respect some Massachusetts weddings and not others. Legal analysts say the case stands a good chance of reaching the U.S. Supreme Court. And if the gays prevail? Could the feds extend benefits to my wife — there, I said it, my wife — while California refuses?
American history propels us toward the blessings of more liberty for more people, not less. In recent years, I have personally felt the sharp sting of disappointment as gay rights moved one step forward, two steps back. But history and demographics are on my side.
In the meantime, I’ll enjoy being a marriage outlaw. My marriage will be akin to Bokononism, the forbidden religion in Kurt Vonnegut’s novel, “Cat’s Cradle,” all the more potent because it is banned. And I will tell my fellow outlaws to hold on to Bokonon’s little poem for a while: “So I said good-bye to government. / And I gave my reason: / That a really good religion / Is a form of treason.”
Robin Rauzi, a former articles editor for the Los Angeles Times, is a writer in L.A.
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