When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. A court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that body recognized that unequal treatment was constitutionally impermissible. (See, e.g., Kopp v. Fair Political Practices Com. (1995) 11 Cal.4th 607, 626-662; Arp v. Workers’ Comp. Appeals Bd., supra, 19 Cal.4th 395, 407-410.)
In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation. In view of the lengthy history of the use of the term “marriage” to describe the family relationship here at issue, and the importance that both the supporters of the 1977 amendment to the marriage statutes and the electors who voted in favor of Proposition 22 unquestionably attached to the designation of marriage, there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference.
Proposition 8 - assuming it stands up in court at all, which is questionable (Constitutional amendments require a 2/3 vote of the state legislature or a constitutional convention) - would, by definition, enforce differential treatment. Given the In re Marriage decision, the eventual result would be clear: The California Supreme Court would be forced to remove the institution of civil marriage in California.
One of course could still get married in a church (as before), and one could call oneself married (as before). As, in fact, quite a number of gay and lesbian couples called themselves before the In re Marriage decision. But the civil contract would be gone, though possibly replaced by some form of "civil union" with similar conditions (if it's good enough for the gays, it's good enough for everyone, right?).
It's unclear what would happen to existing marriages. Given that it's been pointed out that Prop 8 wouldn't affect existing gay marriages, probably nothing. But the ongoing consequences could be quite far-reaching:
- There's a good chance that the civil process would be completely separate from the civil one, so religious representatives could no longer perform both simultaneously.
- Other states have to recognize marriages performed elsewhere (though some have attempted to duck that for gay marriages, which is of questionable legality), and other countries recognize marriages performed here, by international treaty (As we're, umm, supposed to recognize gay marriages performed in other countries...). No one has to recognize civil unions. A marriage performed in California would have no bearing elsewhere
- Similarly, a marriage performed elsewhere would no longer necessarily have any validity in California.
- Federal law grants certain rights to married couples - not the least of those being the preferential tax treatment. It is likely that none of those rights would extend to Californians.
But a yes vote on Prop. 8 is a vote for the abolishment of civil marriage.