As California waits quietly for its state Supreme Court to decide on the same-sex marriage issue, it's time to consider a likely unthinkable solution to one of the fundamental problems inherent in reconciling "equality of marriage" in California with the unavoidable context of the Defense of Marriage Act.
To my mind, the California Constitution is quite clear in it's intent to provide equal protections to all citizens. The state is prohibited from treating different classes of citizens differently, and part of the fuss is the question of whether treating same-sex relationships differently than opposite-sex ones really stems from a different treatment of individuals, an argument which seems to me to fail to see the sweeping scope of the Constitutional text. But that's not my point today.
My point today is different. Let us assume, for a moment, that the Supreme Court finds that prohibiting same-sex marriages to GLBT couples does violate the Equal Protection clause. The question then becomes, what remedy should the court fashion?
The obvious solution, and the only one that anyone ever talks about is granting same-sex marriage rights to Californians. And on the face of it, that would be a delightful turn of events, no question. But one might argue, and I will argue, that that's not enough.
But let's step back for a moment. Let's consider a hypothetical where the US federal government decides to offer $10,000 to each person who graduates from high school with a "class-A" award. In this hypothetical, the definition of "class-A" is, in the name of federalism, deferred to individual states, that is, California might have different rules than Ohio. Now let us assume that California considers a law in which only men are eligible for class-A awards, and in which only women are eligible for class-B awards, and moreover that they California give $20 to recipients of either award.
While the benefit of the thousand dollars is clearly provided by the federal government, and while the benefit of $20 is provided by itself in an arguably non-discriminatory manner, it is without question the action of the state which confers a discriminatory benefit to (some) men, and I have little doubt that such a restriction would be found in violation of the California state Constitution.
If we further assume that the federal government had imposed a restriction that no "class-A" awards can be awarded to women, I see nothing legally or ethically that has changed. The act of awarding "class-A" and "class-B" awards has as its primary effect the creation of a large discriminatory financial bias. As unpleasant as it would be, the only way to reconcile equal protection with the existing framework of far more significant federal law would be to stop giving out class-A awards entirely.
And so it is with marriage. Should the California Supreme Court decide to require same-sex marriage in the state, it will be an active participant in the federal discrimination against same-sex couples. One might propose, modestly enough, that the only way to clearly reconcile California's equal protection with the existing federal landscape is to simply stop issuing marriage licenses entirely.