This is an obviously important opinion. It's also one that is obviously going to get a fair amount of press. Justice Scotland holds therein that the Domestic Partners Act (Family Code Section 297.5), which grants various statutory rights to domestic partners, does not conflict with Proposition 22 (the "Defense of Marriage" initiative), which states that "Only marriage between a man and woman is valid or recognized in California."
I've got no problem whatsoever with Justice Scotland's opinion. My only point is that this was a two-inch putt. A no-brainer. A totally easy case. And, sure, Justice Scotland writes a fine opinion. But so would virtually everyone in a high-profile case such as this, where you know that everyone's going to be reading your opinion and in which the correct legal outcome -- at least to anyone with any ability to neutrally evaluate the merits -- is utterly crystal clear.
A domestic partnership isn't a marriage. Proposition 22 stops the Legislature from recognizing homosexual marriages. That's what the voters decided. But they obviously -- clearly -- didn't vote to repeal Section 297, which existed when Proposition 22 was passed and which entitled domestic partners to certain rights. And they didn't vote to stop the Legislature from ever expanding those rights. They just voted that homosexuals can't get married. And neither Section 297 nor 297.5 grants them that right; indeed, far from it, as the rights granted by those provisions are -- as anyone can plainly see -- hardly coterminous with marriage.
A domestic partnership ain't a marriage. And it's just plain silly to argue to the contrary. (Parenthetically, this obvious fact appears to give little pause to either the Alliance Defense Fund or their attorneys, Robert Tyler and Douglas Edgar, who vow to appeal to the California Supreme Court. Go ahead. Spin your wheels. There are a lot of potentially meritorious lawsuits out there. But if you'd rather waste your time on this one instead, feel free. My only reaction is that I'm just slightly embarrassed that one of the lawyers, Robert Tyler, is a USD Law graduate. Don't get me wrong. Since we're part of a Catholic university, I know that we turn out some graduates with hard-core religious beliefs; moreover, I'm affirmatively psyched that we also turn out graduates -- sometimes (but hardly always) the same ones -- who are willing to work in the public interest for what they believe is right. But I also hoped that we also turned out graduates with a little better judgment.
This case was not a winner below. It was not a winner on appeal. And it isn't going to be a winner in the California Supreme Court. Even if each and every one of the justices therein voted for Proposition 22. Petitioners are simply wrong on the merits. So good job, Justice Scotland. You made the putt.