California to abolish marriage?

The back-and-forth over Proposition 8, which amended California’s constitution to define marriage as between one man and one woman, has generated plenty of debate, heat, and threats — and now a new initiative to change public policy on marriage altogether.  Attorney General Jerry Brown has submitted a referendum that would make California the first state in the nation to get entirely out of the marriage business [see update below].  If backers get enough signatures, any new marriages in the state would only get recognized as domestic-partnership contracts:

California same-sex “marriage” supporters are collecting signatures to support a ballot initiative that would remove civil marriage from California law entirely, as well as the provision codifying marriage as between a man and a woman.

The “Domestic Partnership Initiative” proposes to categorize all unions simply as “domestic partnerships,” while retaining all the rights of marriage for heterosexual couples, and extending them to homosexual couples.  According to the initiative’s summary, “Legally speaking, ‘Marriage’ itself would become a social ceremony, recognized by only non-governmental institutions.”

State Attorney General Jerry Brown submitted the official title and summary for the measure on Monday, about one week after opening arguments in lawsuits challenging Proposition 8, California’s true marriage amendment.

Brown realized after the state Supreme Court arguments over his challenge to Prop 8 that he had little chance of reversing it.  The justices seemed skeptical of Brown’s assertion that the citizens of the state could not amend the constitution through the referendum process without prior legislative approval, probably because the state has never challenged that right after previous successful initiatives.  That means that the only real suspense in the upcoming decision will be whether the state should recognize the 18,000 same-sex marriages certified by the state before Prop 8 passed.

The DPI is an interesting and provocative referendum that will force people to consider the role of government in social constructs and religious practices.  Those who argue that government has a duty to protect the sanctity of marriage will undoubtedly object, but that argument died on a pragmatic basis with no-fault divorce.  Though not all states have it, most do, and it demoted the marriage contract to the lowest rung in legal commitments by allowing one partner to break it at will with no consequences whatsoever.  On a philosophical basis, libertarians and some small-government conservatives would argue that “sanctity” is a religious/philosophical construct and not something for governments to enforce, anyway.

As a practical matter, eliminating marriage as a government sanction and forcing couples into partnership contracts would eliminate barriers to adoption and benefits for gay couples, at least in California.  It would also avoid the state-recognition issue that the Massachusetts Supreme Court created and which the Defense of Marriage Act attempted to pre-empt.  Since the couples would not have government-sanctioned “marriages”, other states would not have to recognize them as such, but the contracts would be enforceable anywhere in the US — probably a lot more enforceable than marriages are today.  Those who want to claim “marriage” could have that sanctioned by their religious organizations instead of relying on the state.

Most opposition to this will rest on adoption and the profound nature of changing the way society treats its foundational building block, the family.  In practice, DPI might not really change much anyway, since I believe California allows for private adoptions by singles and gay couples, and people are free to arrange their families in such manner anyway without government approval as “marriage” now.  However much the libertarian argument appeals to me — and it does — I have to wonder whether we gain much in taking such a step, and what we lose in comparison.

Update: An e-mailer reminds me of what I should have remembered in the first place:

Jerry Brown did not “submit” the initiative. He submitted the official title and summary of the measure. In California, citizen backed initiatives are first submitted to the Attorney General, who then is required by law to prepare an official title and summary of the measure which is to be used on the forms for petition gathering and also appears in the ballot pamphlet. There is an official time period in which the Attorney General has to generate the title and summary. So, the fact that the “title and summary” for this measure came out shortly after court arguments on Prop 8 is due to when the measure’s proponents filed the initiative and not to a scheme by Brown. Brown also “controversially” wrote the title and summary to Prop 8.

So it’s unfair to hang this on Brown, who is fulfilling his duties as AG.  My apologies to Mr. Brown.

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