Law of Unintended Consequences

On Tuesday, March 4, the California Supreme Court hears oral arguments in the historic lawsuits seeking civil recognition of marriages between same-sex couples. Fearing a decision that the California Constitution requires such recognition, opponents of marriage equality are already gathering signatures to place measures on the ballot in November. If approved, these initiatives would amend the state constitution to try to keep marriage heterosexual. But assuming the state Supreme Court rules in favor of marriage equality, the proponents of one of those measures may be in for a rude awakening. It might turn out that instead of “protecting” marriage, the ballot measure would end up abolishing civil marriage in the state of California.

One of the proposed initiatives being circulated has been styled the “California Marriage Protection Act” by its proponents, who include Gail J. Knight. Were it adopted by the voters, this measure, which I’ll call the Knight Amendment, would add a single sentence to the state Constitution: “Only marriage between a man and a woman is valid or recognized in California.”

If these words sound familiar, they should. Back in 2000 state Senator Pete Knight, the since deceased husband of Gail, sponsored Proposition 22, a ballot initiative that added to the California Family Code the exact same language. That initiative was advertised as protecting California’s sovereign authority to decide which marriages to recognize from other states. It was approved by the voters by a substantial margin.

So why this new initiative? By amending the Constitution, the backers hope to place the issue of marriage equality beyond the reach of the legislature and the courts. And they hope to preclude the possibility that same-sex couples will be allowed to marry in California as a result of a state Supreme Court decision interpreting the California Constitution.

But the language of the proposed Knight Amendment is most likely inadequate to the task of keeping marriage as a heterosexual-only institution in California. It’s basic shortcoming is that it only puts a limit on which marriages California may treat as valid and recognize, but neither requires that California must treat as valid and recognize any marriages at all nor amends the equality provisions in the state constitution.

So, consider this plausible scenario. Sometime between March 4 and June 2 the California Supreme Court rules that the refusal of the state to recognize marriages between same-sex couples violates the Equal Protection Clause of the state constitution. In doing so, the Court would necessarily be holding that the robust domestic partnership laws of the state do not suffice to treat same-sex couples equally with different-sex couples. If the Knight Amendment then qualified for the November ballot and the voters approved it, we would be left with the following state of affairs: It would not satisfy the California constitution’s equality guarantee to allow different-sex couples but not same-sex couples to marry; but it would not satisfy the state constitution’s Knight Amendment to allow same-sex couples to marry.

How then could the state satisfy both those constitutional constraints, as would be their duty? By not letting any couples marry. California could abolish “marriage” as such, and perhaps substitute domestic partnership for all couples, instead of just for same-sex couples and elderly different-sex couples as is currently the case. If the only formal relationship status the state offered couples were a domestic partnership, then it would be treating same-sex couples and different-sex couples equally for state constitutional purposes and so not violating the Equal Protection Clause of the California Constitution. And if the state did not recognize any marriages as “marriages,” it would not violate the proposed Knight Amendment, which does not specify that “marriage between a man and a woman” shall be recognized or valid in California. This measure says “only,” and so would be violated only if the legislature afforded recognition to some marriages in addition to marriages between a man and a woman. True, the measure’s proponents and language seem to expect that marriage would continue to exist, but the Knight Amendment doesn’t expressly require that – unlike some of the other circulating ballot measures, which do specify that marriage shall not be abolished.

I know that may seem like an unsatisfyingly technical interpretation of state constitutional provisions. Moreover, I am one of a group of constitutional law professors in California who filed an amicus brief arguing that a legislative choice to abolish marriage rather than open the civil status to same-sex couples would be infected by anti-lesbigay bias and therefore would violate California's Constitution. Yet the proposed Knight Amendment would change the state Constitution and leave no room for a legislative choice to allow same-sex couples to marry. So the situation would be different if the Knight Amendment were adopted. In that case, the California courts would act within their authority to declare that the best that could be done to satisfy constitutional equality principles under the circumstances would be to eliminate marriage, because marriage could only exist in a discriminatory form under the Knight Amendment.

Abolishing civil marriage is certainly not an intended consequence of the Knight Amendment. But that just underscores the dangers of compromising constitutional principle by writing discrimination into a constitution. If the voters are fair enough to appreciate that, we’ll reject the Knight Amendment and not try to nullify a California Supreme Court ruling allowing same-sex couples to have the same full recognition of and protection for their marriages as different-sex couples now enjoy.