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As a matter of law, history, social policy, and faith, it is my view as articulated in a brief I helped draft in the California cases that marriage is properly reserved to a man and a woman. In other words, I lost. That said, the California Supreme Court decision in favor of same-sex marriage in both the majority and dissent is written in reasoned and intelligent voices.
It would be especially worthwhile if the California opinion did not immediately trigger the predictable responses by the contending sides or extended gloating or criticism by those pursuing the presidency. The common good will not be advantaged by either gay euphoria on one side or straight predictions of moral disintegration. Nor will the usual hand-wringing about judicial activism be of much utility.
Sen. Obama might take special care in his assessment of the opinion. He, like the court majority, I am certain believes extending affirmation to same-sex marriage ultimately honors that venerable institution. As such, it would be prudent for Sen. Obama and supporters of same-sex marriage to note that, for the most part, those who opposed that affirmation did so not out of acrimony or dislike, but out of a like appreciation for the family as an irreplaceable cultural building block and often sincere religious belief that deserves respect and accommodation.
So, what did the opinion actually do?
Something Old—Marriage by Any Other Name ...
California's decision to affirm same-sex marriage arguably will not have a dramatic impact within the state itself since the state had already been so generous in its domestic-partnership provisions and in eliminating virtually all forms of employment and housing discrimination. Indeed, the most noticeable impact may be in the usage of the word marriage, though the court puts it more sensitively: "Whether or not the name ‘marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to all other officially recognized family relationships." In short, whatever terminology the state fixes upon, it must be extended to same-sex and traditional marriage alike.
Something Borrowed
Perhaps it would be best if the state would forgo using the terminology of marriage altogether and leave that to religious bodies where the institution is accepted as having divine origin and is associated with sacrament or other blessing. In that event, the state license for everyone could be called "civil union" or, as the court suggested, "enduring union," which indeed is the hope of every couple and the genuine work of life-long friendship.
Something New
Analytically, the court is at its strongest in pointing out how the usage of the term marriage for opposite-sex couples exclusively can stigmatize same-sex couples. The court makes an analogy to the separate but equal decisions that preceded Brown v. Board of Education, where, of course, the minority schools were never quite equal. The court writes: "[P]articularly in light of the historic disparagement of and the discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... will cause the new parallel institution that has been made available to those couples to be viewed as of lesser stature than marriage, and in effect, as a mark of second-class citizenship." Poignantly, the court gives emphasis to how the disparity may affect children of gay couples and how privacy can be invaded then in numerous everyday social, employment, and governmental settings in which the individual is asked whether he or she is married or single. An individual who is a domestic partner and who accurately responds to the question for disclosing that status will functionally be disclosing, said the court, his or her homosexual orientation even if that person would not want to make such disclosure in that circumstance, and it is totally irrelevant to the setting of the question.
This is a nice point. It might have been made stronger had the court observed that nomenclature that does not occasion prying into the sexual choices of persons also has the byproduct of not aggravating opposite-sex couples or individuals with explicit sexual identification or discussion of sexual orientation that often seems, and is, out of place in workplace, school, and other public settings.
So, What's the Harm in Same-Sex Marriage?
It is often asked, as Marty's helpful post does, how the acknowledgment of same-sex marriage harms marriage between a man and a woman. The inability to give a simple, secular answer to this explains the California victory in favor of same-sex marriage more than the reasoning of the opinion. That doesn't mean there is not an answer. There is a religious answer, and it is anchored in the creation story recorded in the book of Genesis.
The religious answer has a secular side, but it is less articulable. Traditional marriage has been accepted without argument for so long that the words custom and history substitute for analysis. When a more searching inquiry is made, it is often related to the genuine belief that the institution of marriage and associated natural procreation should be (and has been for millenniums) interrelated and very much worth preserving. The story of the declining populations and cultures of Western Europe is debated but troubling. No one wishes the same for the United States, though it is hard to deny that marriages are occurring later and with less frequency (with a con-commitant rise in cohabitation and its various adverse instabilities and risks for children). A smaller youthful population with a sizable graying demographic has many negative economic and social consequences manifest in everything from what does or does not get accomplished in schools to the coming bankruptcy of the Social Security system to much else that depends on the constant influx of new people, responsibly prepared to take up for the work of citizenship and community.
With that as backdrop, did California actually accomplish anything different than Massachusetts already did several years ago?
Exportable California Licenses Seeding State and Federal Litigation
California's decision is more groundbreaking than that of Massachusetts in two senses: First, Massachusetts decided, for the most part, that its opinion applied only to its own residents. Nonresidents can be married in Massachusetts only if the marriage would not be prohibited in their home states, whereas California has no residency requirement or waiting period, nor does it determine the availability of its own license in relation to whether such license would be permissible elsewhere. Presumably, this will mean a large number of same-sex California licenses being issued to the nonresident visitors, who will then return to sister states requesting recognition of those California licenses. If those requests are denied, litigation similar to that just concluded in California under that state's marriage law will result as well as challenges to state and federal Defense of Marriage Acts.
Sexual Orientation as a Protected Class
Second, the fact that California declared sexual orientation to be a suspect classification will likely put additional pressure on Congress to do the same in the Civil Rights Act. To the extent other state courts follow California's lead, one can anticipate that this state jurisprudence will ultimately come to be reflected in federal jurisprudential thinking as well. Certainly, one can anticipate the decision today being cited as instructive (though clearly not binding, given its exclusive state-law provenance) in challenges to the military's ongoing application of its "don't ask, don't tell" regulation. The end of sexual-orientation discrimination has much to commend it, as again Marty nicely illustrates in his quotation from the opinion, but again, there are interwoven religious beliefs that are not based on stereotype and that do deserve accommodation.
Governor of the People—Well, a Few With Robes at Least
Responding to today's California Supreme Court decision approving same-sex marriage in relation to a November ballot initiative that would declare the opposite, Gov. Arnold Schwarzenegger said:
I respect the court's decision and as governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.
Depending on your perspective, this may or may not be a profile in courage. Gov. Arnold seemingly reasons that it is more important to secure the four votes of the majority of the California Supreme Court than the approval of the 4,160,706 voters, or its 2008 equivalent, who had approved affirming traditional marriage in 2000 in Proposition 22. The governor's thinking seems a wee bit anti-democratic.
Is there a footnote in Active Liberty that explains this new-found gubernatorial respect for the will of the judges? (Sorry, I couldn't resist a little judicial-activist tweaking.)
The Coming Unconstitutional Constitutional Amendment?
In any event, Gov. Schwarzenegger may not be the only person asserting that there can be an unconstitutional constitutional amendment. The language of the proposed initiative on the ballot in November is virtually identical to the provision of the state family code that was today invalidated. Moreover, the signatures given for this initiative were given prior to the court's decision. Certainly a court that is prepared to declare sexual orientation a suspect class and redefine marriage won't be overly shy about questioning whether the wording of a state constitutional amendment initiative was specific enough to overrule an intervening court determination of this magnitude.
But that's assuming the initiative passes. 2008 is not 2004, and the turnout in November for traditional marriage is no sure bet. Voters attracted to Sen. Obama by and large will be pleased by a today's majority opinion and will be of no mind to approve a state initiative reaffirming traditional marriage.
Something Blue—Will the Outliers Then Be Punished?
Should same-sex marriage and nondiscrimination on the basis of sexual orientation become the norm, as Marty speculates, what will be the impact on religious bodies that sacramentally must decline to conduct same-sex marriages or that cannot under existing religious teaching hire homosexual persons for certain positions such as teacher, athletic coach, or the clergy itself? The Supreme Court's jurisprudence on the Free Exercise Clause is presently insufficient to give any shelter to these practices. Practically, will the existence of religiously affiliated institutions be threatened by the denial of tax exemptions or the denial of access to other public programs on the theory that their practices would then violate public policy? These are real questions that have been aggravated by scholarship and judicial decisions that have allowed or advocated the aggressive exclusion of the Boy Scouts following their successful defense of their right of association before the Supreme Court.
Let History Be Our Guide—At Least As It Applies Against Polygamy and Incestuous Marriage.
There is one anomaly that stands out in the opinion's rejection of history and tradition. The California Supreme Court opined that its approval of same-sex marriage "does not mean that this constitutional right similarly must be understood to extend to polygamists or incestuous relationships." But why not? In rejecting the state's defense of traditional marriage, the court found the historical support for traditional marriage to be of little purchase. Apparently, with respect to polygamy and incest, history counts for a lot. The court asserts that "although the historic disparagement of the discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment."
I agree, but wasn't that exactly the state's argument in defense of traditional marriage?
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Today's California Supreme Court decision is certainly momentous and worthy of celebration, for obvious reasons. It will, I think, come to be seen as part of the grand tradition of that court, as exemplified in its bold 1948 decision in Perez v. Sharp, which prompted numerous states to abandon their anti-miscegenation laws, eventually leading to Loving v. Virginia. But wholly apart from the particular holding on same-sex marriage—which is plenty important in and of itself—it strikes me that the most significant legal development in the court's decision is that it is (to my knowledge) the first time any state or federal court of last resort has held that discrimination on the basis of sexual orientation is suspect and thus subject to strict scrutiny under a constitutional equal-protection clause. See Pages 95-101 of the majority opinion.
There is a strong argument, I think, that the particular form of discrimination at issue here would be invalid even if viewed under a more forgiving "rational basis" lens, because there is no noninvidious, legitimate reason for restricting "marriage" to single-sex couples—which was in effect the holding of the Massachusetts court in Goodridge. (See Pages 20-22 of this brief.)
But long after the question of same-sex marriage is considered by other courts, legislatures, and popular referenda—indeed, long after same-sex marriage becomes the norm rather than the exception in the various states—the court's holding today that all discrimination against gays and lesbians is constitutionally suspect is apt to have profound ripple effects across a wide range of different legal contexts. Here's the key, landmark holding:
There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.
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The California Supreme Court has just announced its decision in the gay-marriage cases, finding that the state marriage laws that "exclude same-sex couples from access to the designation of marriage" are unconstitutional. Opinion is here.
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It's dangerous to try to draw parallels between procedures of the United States and any country, even those of our principal legal progenitor, England. This is surely the case with a civil-law country like France. The
problem is not that the French "don't even use a jury." In point of fact, France does use laypersons as co-fact-finders with professional judges in some felony prosecutions (as do other civil-law systems, as I write on p. 818 & n. 57
here). It's an odd complaint in any event, given that the discussion revolves around commissions that themselves will not use juries.
Perhaps more important is that what is considered a "trial" in civil-law jurisdictions is far different from the American understanding of the term (something the
New York Times reporter glossed over when she referred to a "six-day trial"). The "
procès," the French word closest to
trial, refers not only to the condensed public event that ends in conviction or acquittal but rather to the entire criminal proceeding against the defendant. In this case,
le procès lasted not for a few days in March but rather for many years: All residents of Paris' 19th arrondissement,
M. Benyettou and his six co-defendants were first arrested in 2005, and some have been detained since then. In the interim, their case no doubt worked its way through not-public proceedings before a
juge d'instruction, as is properly noted in this
post today. Only after these proceedings were completed would the public trial,
la procédure contradictoire, have taken place in robust form (see p. 838
here). Thus, even while applauding the use of the civilian system and the crafting of an evidentiary solution—aspects of the case that do deserve applause—we ought to be a bit chary of assuming that all that occurred procedurally during the long
procès deserves applause. Still more, our discussion so far seems to ignore a core problem with the French prosecution and, in my view, with many proposed Gitmo prosecutions: The substantive crime charged.
The concern remains that the material support offenses will be emulated widely and lay the foundation for a broad retreat from the traditional posture of the criminal law in this country that complicitous liability requires a mens rea of purpose, and that if a mental state of knowledge is deemed sufficient, at the very least the underlying conduct must be substantial in relation to the criminal goals of the primary parties.
The French version of this offense may be open to additional questions. Both versions deserve far greater examination than they receive when we focus, necessarily but perhaps too narrowly, on questions of procedure.
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One last point to Phil. France uses the inquisitorial system of criminal justice: no jury, greatly relaxed rules of evidence, including the absence of a hearsay rule. (There is no need to worry about confusing the jurors or animating their biases—the usual reason for having such rules in the jury system used in the United States.) Without a jury present, classified evidence poses less of a problem. And given the relaxed rules of evidence, I suspect, but don't know for sure, that these judges would be permitted to base their decisions on evidence where the degree of coercion used to obtain that evidence is "disputed" (in the words of the Military Commissions Act, though not when the evidence is obtained through torture, which is forbidden under international law, but which is also forbidden under the Military Commissions Act). Finally, French civilian judges have less independence than American civilian judges, though it is hard to know how meaningful this difference is in practice, and in the inquisitorial system, the French defense lawyer has a more muted role than in the United States. So, what are we to make of the French example? That we give terrorist defendants procedural protections that are too limited, or that we give regular criminal defendants procedural protections that are too generous?
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Eric writes: "We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? ... If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform."
The flurry of posts on the military commissions seems to me to obscure the elephant sitting in the middle of the room, namely, that the principal "relaxed procedural protection" at issue here—the one that has caused the administration to insist upon newfangled commissions rather than courts-martial all along—is that a great deal of the relevant evidence has been obtained unlawfully.
That is to say, as with most of the great debates in the "War on Terror," even when the particular dispute is nominally about the legality of military commissions . . . it's all about the torture.
Not only would much of the evidence in these cases be inadmissible because it's the fruit of coerced testimony, but the administration is hellbent on keeping secret what it has in fact done to the detainees in its control. In any legitimate proceeding—be it court-martial or civilian trial or military commission or even congressional investigation—that information would and should be disclosed. And in a court-martial or civilian trial, there's a good chance that would happen. (Wish I could say the same about congressional hearings.) But that's nonnegotiable for the Bush administration . . . and so, the endless debates about military commissions, which are designed largely to obscure the manner in which we obtained the relevant evidence.
The interesting question, then, is whether the McCain or Obama administration would be more willing in 2009 to make transparent what happened during these interrogations—after which perhaps we could figure out whether there is any tribunal in which fair trials could take place, without unreliable evidence gleaned from torture and cruel treatment. (That is to say: It's awfully difficult to conduct war-crimes trials when a good portion of the evidence was obtained by way of ... war crimes.)
(There's one other big issue, too—namely, that it is not at all clear that a great deal of the conduct alleged against some of the lower-level defendants, such as Hamdan and Khadr (e.g., driving bin Laden, delivering weapons to the front, tossing grenades at soldiers), actually violated any laws of war that were in place at the time of the conduct. But I don't see why those sorts of questions can't be resolved fairly, without regard to the nature of the tribunal.)
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Phil, what puzzles me is why people are so sure that reducing procedural protections in civilian courts is superior to constructing an alternative system of military courts with lower procedural protections. We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? If no, then you can't think the French (who don't even use a jury and have never been famous for their generosity to criminal defendants) have something to teach us. If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform. As you point out, we might be more inclined to trust civilian prosecutors, judges, and juries than military prosecutors, judges, and juries, but if civilian judges do in fact relax procedural protections whenever they try a suspected terrorist, then this trust will certainly erode. Dahlia now says that she is making an empirical argument, not a catch-22 argument. However, I read the evidence she and Emily discuss as showing that there is serious disagreement among government officials about the proper level of procedural protections—how little is too little?—but from the outside it is impossible to know who is right.
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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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At 10:00 today Pacific time (that's 1:00 Eastern), the California Supreme Court will issue its long-awaited same-sex-marriage decision. (Briefs and oral argument here.) The question presented is this:
Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?
My understanding is that the issue presented in the California case is analogous to, if not on all fours with, that of the Massachusetts Supreme Judicial Court's landmark Goodridge decision—namely, whether the state constitution should be construed to require California to provide not only equal tangible rights, benefits, and responsibilities to same-sex couples (which the state law already does), but also to accord such couples the status of state-sanctioned marriage, as such. (For what it's worth, in post-Goodridge litigation in Massachusetts, professor Tribe and I filed a brief on behalf of co-blogger Kenji Yoshino and 89 other Con-law and legal history scholars, which explained, in part (see Pages 18-29), why the Massachusetts SJC that such formal "marriage" status was of constitutional significance, above and beyond equality in the state's provision of rights and privileges.)
After listening to the oral argument in the California case, Dale Carpenter predicted that the same-sex marriage proponents would lose. Perhaps more importantly, Dale, a strong prononent of same-sex marriage rights (who will not be available today to respond to the Cal Supreme Court opinions), argued that such a loss would be a "blessing in disguise for the gay-marriage movement as a whole":
On the one hand, a pro-SSM ruling from the California high court would lead to a state-wide voter initiative to amend the state constitution to ban not only gay marriage but legislatively created civil unions as well. Nobody knows how that vote would turn out, but I would not be confident of a victory for gay marriage. That has always been a serious risk of this California litigation.
Beyond California, a ruling for the SSM litigants would increase the perceived risk to legislatures in other states that if they extend domestic partnerships or civil unions to gay couples courts will use that progress as a reason to force the states to go all the way to marriage. This might make them less likely to experiment with statutes that grant some rights and protections to gay families.
On the other hand, a ruling that leaves the issue to the state legislature (which has twice voted to recognize gay marriage) and the governor (who has twice vetoed gay-marriage legislation, deferring the issue to this litigation) will mean that this issue will be resolved democratically. Either this governor or a future one will eventually sign a gay-marriage bill which, as I understand California law, means that the voters of the state will have another go at the issue. (In 2000, they voted to define marriage as the union of a man and a woman in state statute.) In that event, the issue will be presented to them in the best possible light: with the state legislature and the state governor solidly behind the change—not simply the sympathy the state's high
court.
Perhaps Carpenter's take on the case would be a good jumping-off point for any Convictions posts after the California court issues its decision in a couple of hours. For myself, although I can imagine Dale might be correct in the second paragraph above that pro-SSM decisions might deter some legislatures from enacting beneficial anti-discrimination laws, I'm not so sure about his first argument: After all, the decision in Goodridge did not result in a successful amendment to the Massachusetts Constitution "to ban not only gay marriage but legislatively created civil unions as well." (On the other hand, the politics and mechanisms of constitutional amendment in California might be very different from those in Massachusetts, in a way that makes this litigation much riskier.)
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Eric, I don’t think you’ve correctly stated the Bazelon/Lithwick standard here: It’s not that all Pentagon balking is per se evidence of crap commissions. It’s that the balking, plus the seven years of after-the-fact tinkering (the CSRT “do-overs” or the Bush-appointed Court of Military Commission Review), plus the international condemnation, plus the choose-your-own-ending playbook are evidence of crap commissions. Your characterization of our argument as “so long as the insiders balk, the commissions must be flawed” overstates the point. Our point was that when even the insiders start to revolt, it’s hard to ignore what everyone else has known all along.
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Eric, we're fast approaching the end of my French vocabulary, and I really don't want to resort to using Google's translator to keep up with this conversation. But I think you're misapplying the Catch-22 standard to the French sentencing decision announced yesterday. It is true that the French court relied on some classified evidence to reach its verdict. But this was not la justice à huis clos, or justice behind closed doors. The French system, like ours, provides for the use of classified material. The material was fully disclosed to the parties involved—prosecutors, defense attorneys, and the finder of fact (in this case, French judges). The court subsequently reached a verdict, relying in part on that secret evidence.
Although the public may never see the actual classified evidence produced in the case, I think the public may trust the verdict because of its faith in the court as an institution, and the public faith in the court's mechanisms for managing classified information in the interests of justice. Compare and contrast this with the military commissions at Gitmo—where we have no faith in the institution, no faith in its procedural mechanisms, and very little confidence that it will handle classified material in a way that furthers justice.
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Phil,
The French trial also fails the Bazelon/Lithwick/Heller standard, which I would rephrase as follows. If the government takes an action on the basis of secret evidence and the publicly visible outcome serves the government's interest (e.g., conviction), then we should infer that government officials acted wrongly. If the outcome does not serve the government's interest (e.g., acquittal), then we should infer that government officials acted properly. Applying this standard to the French trial, clearly French officials acted wrongly, so the French government shouldn't get any points. I can say this with full confidence without knowing anything about what actually happened in the French trial, which is why the Bazelon/Lithwick standard is so appealing in the first place.
I assume you would apply the Bazelon/Lithwick standard to military trials only and not civilian trials (or perhaps courts martial), but I don't think there is any reasonable basis for such a distinction. It's all the same government, after all.
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Eric, I think Joseph Heller would agree with the Catch-22 scenario you've described for the commissions at Guantanamo Bay. They truly are damned if they proceed and damned if they don't. Perhaps unintentionally, I think you've arrived at the right conclusion: The commissions are fundamentally and fatally flawed; the rule of law will prevail only if they are perpetually blocked. Specific evidence against defendants is irrelevant to the question of the tribunals' legitimacy, although I'd also argue that this evidence makes it all the more important that we find some way to try the men held at Gitmo.
Ironically, our French allies across the Atlantic might have found a way. A French court sentenced seven men to prison yesterday for aiding al-Qaida in Mesopotamia by funneling young Frenchmen to Iraq to wage war against U.S. and coalition forces there. French prosecutors brought this case in civilian court, using a combination of open and sealed (i.e., classified) evidence to prove the defendants' guilt in a six-day trial this past March. Now the defendants are headed for prison—and the French get to put points on the scoreboard in the fight against terrorism.
Maybe we can learn a thing or two from our colleagues in Paris?
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Emily and Dahlia think so:
Key actors are declining to play their part in a piece of theater designed to produce all convictions all the time. These refusals, affecting two trials this week, suggest that the whole apparatus-seven years and counting in the making-cannot ever be fixed. The trials are doomed, and they are doomed from the inside out.
But they have an awfully high standard for success:
Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals-some silent, some very public-have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.
If this standard were really to be applied, then the commissions would be doomed. If the commissions go forward, they cannot be legitimate, for the absence of balking would mean that participants lack integrity and are just "going along." If the commissions don't go forward, they are legitimate—but they don't actually do anything. Which is just to say that under any possible state of the world, the commissions must be ineffective, and all evidence is irrelevant.