There was a day, last week, when a lot of people in California almost got married. A federal judge, Vaughn Walker, had set 5 P.M. on Wednesday, August 18th, as the moment when a stay on his decision declaring Proposition 8, the state’s referendum banning same-sex marriages, unconstitutional would expire. Then the weddings could begin. That Monday, however, the Ninth Circuit Court of Appeals agreed to hear the case, and kept the stay in place. Both sides must file their initial briefs by September 17th. Any decision almost certainly would be appealed again, putting the case, Perry v. Schwarzenegger, on track to reach the Supreme Court in 2011.

Illustration by Tom Bachtell

But it might not make it that far. The Circuit Court’s order contained this note: “Appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.” Having “standing” means having the right to bring a lawsuit. Not just anyone can challenge a law or appeal; you have to actually be injured. The plaintiffs in the case, a gay couple and a lesbian couple, had standing because they applied for and were denied marriage licenses. The named defendants were Governor Arnold Schwarzenegger and other state officials. They stood aside during the trial in Judge Walker’s court, allowing ProtectMarriage.com, which campaigned for Prop. 8, to organize a defense. Now the Governor and the others don’t want to appeal—Schwarzenegger likes the decision. If ProtectMarriage.com has no standing, and there is no other appellant, gay marriage could, in effect, become legal in California by default.

Not all supporters of marriage equality are happy about that prospect. They want to get married in a proper way—with the support and approval of friends and neighbors. Before Perry v. Schwarzenegger, Lambda Legal, an advocacy group, had been conducting a careful campaign in state legislatures and courts. (Same-sex couples can now marry in five states and Washington, D.C., and public opinion has shifted markedly.) As Margaret Talbot wrote in this magazine, many activists were wary of the federal case and of the lead lawyers, Theodore Olson and David Boies. If they got to the Supreme Court before the ground was prepared, might there be a precedent-setting loss? Would a victory premised on a judge throwing out a referendum feel legitimate—especially if the opposition didn’t even get to appeal?

But the technicality presented by standing isn’t just technical. It raises a larger issue. If Prop. 8’s proponents don’t have standing to sue, then who does? Who is hurt by gay marriage?

Walker kept asking that question during the trial, and never really got an answer, despite encouraging both sides to call witnesses. (The plaintiffs called seventeen, the defenders of Prop. 8 two.) In the referendum campaign, Walker wrote, Prop. 8’s advocates had focussed on “fear-inducing messages” about “protecting children from inchoate threats vaguely associated with gays and lesbians.” One reason for the vagueness may have been that they didn’t have much to go on. At the trial, their main witness cited studies showing that children do better with married parents than with single ones. But there was no evidence that this advantage depended on the married parents being of different genders. Some eighteen per cent of gay and lesbian couples in California are already raising kids, and even a witness for Prop. 8 conceded that it would be helpful for those children if their parents were married.

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Some benefits derived from marriage can be secured through domestic partnerships, adoptions, insurance policies, and well-written proxies, directives, and wills (how much tuition could be paid for with the legal fees for all that?), but not all of them. The Defense of Marriage Act prevents federal spousal benefits from going to same-sex couples. More than a thousand federal statutes rely on marriage to define one’s status. If you are a widow of any age caring for a child, and your income falls below a certain level, you may qualify for Social Security benefits based on your late spouse’s earnings (beyond what the child might receive). An unmarried parent would not. You don’t need to be married to be a good parent, but marriage equality protects children by giving parents more tools with which to protect them.

Say that the practical issues could all be worked out, and domestic partnerships could be made more or less equitable. Would that do the trick? This was one of the central questions of Perry v. Schwarzenegger: whether being almost married, but not quite, is good enough.

Sandra Stier, one of the plaintiffs, testified about her frustration filling out forms that asked if she was “single, married or divorced”: she found herself “scratching something out . . . making sure I explain to folks what that is.” On an ordinary day, you can explain the complexities of a relationship, or simply elide them. But if someone goes to the hospital, or a child gets in trouble at school, then who everyone is, with respect to one another and in the eyes of the law, matters a great deal. Even a stepmother calling a school has less explaining to do than a child’s mother’s girlfriend.

More than that, Stier’s domestic partner, Kristin Perry—they have four children—testified that there was nothing in their legal agreements that conveyed “the love and commitment that are inherent in marriage.” Judge Walker used the word “honor.” A wedding has a transformative power. Perry had standing to sue less because of any single benefit she was denied than because Prop. 8 prevented her from becoming a wife.

It’s hard to see how heterosexual wives would be injured if Perry and Stier joined them. Marriage is not a scarce resource that has to be rationed. (Nor is love.) When Walker pressed a lawyer for Prop. 8, who had been talking about marriage existing for procreation, to say in what way, exactly, marriage equality would harm the institution, the answer was “I don’t know.” Ross Douthat, a columnist for the Times, wrote that a “marital ideal” would be lost—but he admitted that this ideal was disconnected from reality. The shattering of an illusion, or the grip of a prejudice, is not enough to give someone standing in court.

What might undermine marriage is pushing fully loaded domestic partnerships—marriage-lite, lacking the constricting, exalting, maddening qualities of the real thing—as an alternative, another box to check. This might become an attractive option for everyone. If such contractual arrangements are really just as good as marriage, then what is a wedding good for, other than cake?

As for other potential victims, Judge Walker found that the State of California, far from suffering, would benefit from having more citizens in stable households. The Circuit Court could still let someone appeal—Prop. 8’s advocates, who have come this far, or some government official. (Imperial County, where Prop. 8 got seventy per cent of the vote, as opposed to fifty-two per cent in the entire state, has asked for standing.) But the view from where those potential appellants stand, and from where couples like Perry and Stier are living their lives, is very different. Judge Walker found that, rather than seeking a novel right, the plaintiffs are asking California “to recognize their relationships for what they are: marriages.” Almost, but not yet. ♦