07/03/2009 05:12 am ET Updated May 25, 2011

Almost Equal Protection: A New Legal Doctrine?

Today the Californian Supreme Court of CA birthed new classifications of people, the Gays & the Super-Gay; and a new legal doctrine, Almost-Equal Protection. These creations will not be long-standing because neither the California nor the United States Constitutions allow for a bare majority to strip fundamental rights from a disfavored minority by ballot -- and certainly, neither document allows for Almost Equal Protection.

Those that married while the gates to full equality and citizenship were shortly thrown open by the CA Supremes in 2008 did so knowing that such marriages were built upon a shaky legal foundation. 18,000 couples built homes of love and commitment, as the Californian Supreme Court then stated that marriage is "...a basic, inalienable civil right[sic] guaranteed by the California Constitution."

18,000 couples -- that is 36,000 GLBT people are now married by the California Government. These couples enjoy all the rights, privileges and responsibilities of marriage. The earth has not ended, morals have not denigrated, war has not broken out, and heterosexual couples have not divorced at any heightened rate -- families continue to be created in the ways they have always been.

These 36,000 Californian Super-Gays will now be distinguished by a special badge from their GLBT brethren, who while maybe desiring to marry, will be unable to do so. In other words, the "basic, inalienable civil right," is neither basic, inalienable nor a civil right.

Then there are the rest of us, GLBT Californians that were not ready yet to marry during the 2008 Summer of love. Here we stand next to our friends, and yet we are subject to a different reality -- a reality of second class citizenship in the back of the bus, a reality of Almost Equal Protection.

Almost Equal Protection:
The court erred when it found that Prop 8 merely "carves out a narrow and limited exception to these state constitutional rights..." You cannot qualify fundamental constitutional rights -- otherwise, they would not be fundamental. Inevitably, this untenable decision must address why two identical same-sex Californian couples are entitled to different rights.

In not making Prop 8 retroactive, the court noted that "those same-sex couples who married ....acquired vested property...including...employment benefits, interests in real property, and inheritances." For these Super Gays, the court failed to mention other real benefits including dignity, equality, recognition, empowerment, spiritual affirmation, etc. In essence, the Court provides a hallow victory for those 18,000 GLBT couples because they win by a technicality, not for the righteousness of their claim to full equal protection.

Today, in their decision the Majority stated they were bound to merely "interpreting and applying the principles and rules embodied in the California Constitution, setting aside [their] own personal beliefs and values." Perhaps the court should have heeded the call of President Obama in selecting Supreme Court Nominee Sotomayor, to apply both the Constitutional and legal principles, including Equal Protection, but also Empathy for the people subject to the inexcusable abandonment of constitutional protections.

Almost Equal Protection is a radical and bold theory that allows for exceptions to fundamental rights. In my legal education, I fail to recall how mere animus towards a disfavored minority group could justify the debasement of constitutions with such exceptions. With a sense of grave foreboding, Justice Moreno correctly noted that this decision "...weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority." Today, it's the gays. Tomorrow?