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Yesterday evening I had occasion to participate in what the Chicago lawyers' chapter of the Federalist Society calls a "tavern debate," which as best as I remember is a cross between the Yale or Oxford Union and some version of Chris Matthews' Hardball. It was raucous and fun. It was also a surprise unless I didn't read the e-mail invitation closely. I was under the impression that I had been invited to speak on the topic "Gays Have Every Right To Marry." Now, given my brief-writing, this would have been, as they say, "off-brief," but I thought that was the challenge, and I was prepared to defend the California Supreme Court, or at least four of the members thereof, with zeal. Instead, to my surprise I learned shortly before, though after some delightful merlot, that I was instead to defend the negative of the proposition against my friend and truly gifted constitutional law colleague Dale Carpenter, who holds the Julius Davis professorship at the University of Minnesota.
It is apparently in the tradition of the tavern debate to keep the tavern open throughout, which I admit does seem to give everyone's argument a greater power and salience than more, well, sober settings. And it is perhaps for that reason, when it came time to have the house divide to determine the prevailing position, a majority of those present and still able to walk came to my side. In short, I won-that is, the side in opposition to the resolve "gays have every right to marry."
Beyond the bottle and my bombast, there may be many reasons for my "triumph" (I am a native Chicagoan, Northwestern grad, and, of course, Cub fan), but as I see it, professor Carpenter had the better case and deserved the prize or the fern or whatever it was we had decided to carry away from the Tower Club in remembrance.
Seriously, Dale made his usual eloquent and poignant plea for-and here is where it hooks into the provocative Yoshino-Gerken-Tribe dialogue on liberty vs. equality-the acknowledgement of same-sex marriage. Anticipating his audience far better than I even grasped the format, he made what he called a Burkean case for same-sex marriage-the case that including persons of gay, lesbian, bisexual, and transgender orientations is preservative of the essence of culture, including those aspects of it that depend upon the channeling of sexual intimacy for purposes of civil order and the raising and upbringing of children. Dale's case is more powerful than the lengthy opinion of the California Supreme Court because he deliberately chose to eschew legalisms, and he speaks with the heartfelt and earnest poignancy of a gay man.
Bracketing the legal arguments also was a strategic debate move since it was an attempt (unsuccessful) to deprive me of the separation of powers argument which is of natural appeal to us Federalistas, which is what we were calling ourselves upon adjourning to the post-tavern debate tavern across North Wacker Drive (no pun intended).
My own tack was to argue strongly in favor of the recognition of LGBT as within the humanity created equal in the Declaration challenging the overly narrow conception of originalism most often associated with Justice Scalia, while insisting the true Burkean would preserve traditional marriage to maintain the linkage between marriage and procreation, avoid the uncertainties of single gender effects on child rearing, and taking respectful and realistic account of the innumerable, and undiscussed by the California Supremes, difficulties of accommodating religious freedom subsequent to the legal and cultural acceptance of same-sex marriage.
Dale made the appropriate reply challenging the connection between a recognition of same-sex marriage and either the national or global decline in fertility-which threatens the economies of Europe and even our own if it was not more directly threatened by the fiscally irresponsible and unjustifiable war-related expenditures of our incumbent president. Here, Dale drew upon Gerken's equality argument with a gift of words that succinctly came down to "what else would you do with us?" Professor Carpenter made, as I say, what should have been, as a matter of justice, the winning summation and argument.
Except that, I made reference to Eric Posner's earlier post responding to my lawyer daughter's earlier expressed suggestion that the U.S. subsidize child-having and -rearing more akin to that of France. Eric (perhaps merely for the sake of intellectual sparring) labeled our insistence that marriage and procreation stay linked and honored as "a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and car pooling." Such talk, even with the benefit of spirit-based enhancement, does not sit well with a Midwestern crowd, and the reason I believe is because it attempts to transform the equality claim into a far more troubling and problematic liberty claim a la Kenji.
It dawns on the most inebriated assembly that while in absolute numbers acknowledging same-sex marriage does not account for the global population deficit, it does-if thought of in liberty terms-stand as precedent for the separation of marriage from natural procreation. Asexual procreation at present seems merely benign since it exists as an expensive and cumbersome (and far from uniformly successful) practice, but the literature on artificial wombs and the genetic manipulation of intelligence shoots right through academic debates on liberty vs. equality because it conjures up all manner of not unthinkable (unfortunately) scenarios of the wealthy acquisition of unnatural reproductive means to advance the interests of elites through a libertarian exercise that would destroy all hope of democratic equality.
One sure way for Dale's winning equality argument to lose its footing would be to take up the defense of a liberty to engage in the genetic engineering of children. That move would take him from his own created humanity worthy of the greatest respect to the crass eugenic observation of Oliver Wendell Holmes that "three generations of imbeciles are enough" in Buck v. Bell sustaining the forced sterilization of the mentally handicapped.
In a depopulating world, some predict that there will be an alliance of feminism and eugenics to resist any pressure to sustain an aging and dying culture. Stanley Kurtz makes note that "alarmed by the relative decline of the elites, Teddy Roosevelt urged upper-class women to have more children." Even progressives at that point started to question women's rights. The same, I suggest, is the fate of same-sex equality if it allies itself with the "genetic engineering and use of modified gametes," as John Howard commenting on the earlier liberty-equality colloquy put it in the Fray. Roosevelt's population concerns were blunted by birth-control pioneer Margaret Sanger who prescribed, like Holmes, not that the elite get pregnant, but the suppression of the births of the unfit, or as she described the mentally disabled, "the insane and the blemished."
My friend Larry Tribe writes that "the very things about the language of universalism that makes the ‘liberty' strategy appealing to some (like [him]) no doubt makes it frightening to others." You bet, but that doesn't mean that some things aren't worth being frightened about-and a universal right to access to genetically engineered children is to me, and all lovers of created equality I would think, in that very category. I share with professor Tribe the audacious hope of President Obama pursuing greater claims of equality when the distinctions of the past have been shown to lack reason and to indulge the language of rights when such is universally appealing. I respectfully suggest that any thinking out there-which I know professor Tribe would separate himself from-that is conjuring up a new superman should universally repulse, rather than appeal.
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Rick Hills has a series of excellent posts on slippery slopes (see here, here, and here). He argues that slippery slope arguments should be regarded with suspicion, and he singles out the refrain from opponents of gay marriage: If you permit gay marriage, then you must also permit polygamous marriages, marriages between people and animals, and all other marriages between a person and any object of desire. Hills argues that such slippery slope arguments deny the existence of "conceptual ledges"—or, one might say, ethical ledges—that prevent the institution of marriage from sliding into the abyss of a sexual Babylon. We are capable of making distinctions on the basis of some moral theory about the purpose of an institution. If the purpose of marriage is to encourage long-term romantic relationships between two people, possibly though not necessarily with procreative consequences, then different-sex and same-sex marriage are morally indistinguishable. Why, Hills asks, does the slippery slope argument persist?
We can address Hills' puzzle about the popularity of slippery slope arguments by asking why no one made the following argument, say, 20 years ago when the idea of same-sex marriage was still as outrageous as the idea of polygamy is today. Why didn't, say, a feminist opponent of marriage make the following argument to conservatives who (mistakenly) believed that they should support traditional marriage: "You think you support traditional marriage. But if you define a traditional marriage as a long-term romantic relationship (etc., etc.) and you don't think that infertile and elderly people should be denied the right to marry, and thus you don't think it is essentially a procreative relationship, then you, via slippery slope, must also think that same-sex couples have the right to marry. Since you can't and don't think that, you should withdraw your support for opposite-sex marriage. People who make long-term commitments should receive no special legal status; otherwise, we are on the slippery slope to sexual Babylon."
Why would such an argument have seemed odd? The answer is that slippery slope arguments depend on a strong presumption in favor of the status quo, and thus are invoked only when someone advocates departing from the status quo (extending marriage rather than preserving it). This presumption in favor of the status quo reflects anxiety that if we depart from existing patterns of behavior, reason will not be strong enough to justify a new set of conventions that we can be happy with. Lawyers will recognize this anxiety from ordinary common-law reasoning. Judges rarely question precedents, and when lawyers argue that precedents should be overturned, the opposite side will make a slippery slope argument. The sanctity of precedent reflects the old cliché that it is better that the law be settled than be correct. The same point can be made about social conventions. That is why one sees both conservatives and liberals making slippery slope arguments. Liberals typically make these arguments when someone advocates relaxing civil liberties in order to address some new problem. "If we give the government the power to engage in surveillance of international calls without a warrant, we are on our way to dictatorship." So use of slippery slope arguments is not particularly conservative or liberal, at least not in a political sense. But it does reflect a conservative or legalistic habit of mind, one that fears departing from existing rules because of pessimism that society can arrive at a set of rules that are superior. Most social conventions are arbitrary—we could be equally happy or unhappy with a different set of conventions, and the particular moral theories used to justify existing conventions are frequently phony, after-the-fact rationalizations for the way things are—but some set of conventions is necessary for social life. So if we are constantly having to justify them, we will find that we can't, in which case we will incur very high transition costs for the sake of moving to another set of conventions that will, in short order, seem no less arbitrary than those from which we started.
The slippery slope argument has become shorthand for the view that if we try to make sure that all our social and legal conventions are morally justified, we will end up with no conventions or (what is almost the same thing) in a state of permanent transition between different conventions, which would be worse than tolerating existing conventions that are unjust. This argument is, at the extreme, an objection to any time of reform, and so cannot always carry the day, but it is not an argument that one can refute simply by showing that the proposed new convention is morally superior to the old one. But the reason this argument persists in the same-sex-marriage debate is that it is impossible to point out any concrete harms from recognizing same-sex marriage, and thus the only argument left is this anxiety about the arbitrariness of conventions.
Perhaps liberals and conservatives can make a pact: If liberals stop arguing that any reduction in civil liberties in order to combat terrorism will result in dictatorship, conservatives will stop arguing that any relaxation in our sexual conventions will lead to perdition. On the other hand, if both turn out to be right, we will find ourselves sliding in the direction of a police state that is a sexual Babylon—something for everyone, I guess. Odd that there is not a coalition yet that connects imperial flourishing with sexual and cultural as well as political decadence. We will have to await another Edward Gibbon to make this argument.
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Eric's provocative question whether "within-family reproduction is good in itself" is essentially asking whether the fall in fertility among existing Americans is fungible with the fecundity of recent immigrants from other nations and cultures. Without indulging too much American exceptionalism, I do think there is a distinctive American culture that is lost by that trade. Giving expression to that distinctiveness would violate every principle of blog writing, but for shorthand, let's just say one finds evidence of it in everything from the natural law premises of this Republic's Declaration of Independence to the great success of the recent John Adams HBO special to the content of any presidential aspirant's stump speech. These things begin to capture some of what is lost by supposing immigration to be a perfect substitute for our modest replacement rate.
Thus the significance of sustaining the marital family is far more than a favorable worker-retiree ratio, though that would be helpful in itself to avoid the coming Social Security bankruptcy attributable to both the population decline, and more immediately, the extreme war-related fiscal irresponsibility of the incumbent president. I concede Eric's point that it is more efficient to have people save for their own retirement and avoid transfer payments, but that is not the economic structure we have.
Eric's pro-immigration sentiment expressed within the sentence "paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in" does earn two cheers from me, but it not only understates the uniqueness of American culture, it also misses entirely that a marital family is indeed worth preserving and far more than a "bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning."
In its traditional form, marriage transforms by covenant the emotional and sexual attraction of two individuals into a lasting relationship (AEI's Michael Novak reports modern marriages have a 66 percent success rate) capable of sharing intimate personal goods as well as serving larger social purposes. That the California Supreme Court declares these same personal goods to be within a same-sex relationship has to date been the public debate. To leap from the acceptance of the inclusionary California ruling to the dismissal of marriage as a "bourgeois construct" is a far more revolutionary notion that I suggest Eric may wish to rethink by simply indulging the thought experiment of how uninviting a world without the civilizing efforts of marital family would be. When the marital union is strong, it is also stable, and in this atmosphere of stability children are welcomed and reared to be responsible, healthy, and well-educated citizens. Who exactly undertakes this responsibility under Eric's model?
Intra-marital union or intra-family, freedom is acknowledged in exchange for the faithful performance by the family of social expectations or obligations toward the education and care of family members. The public sovereign respects the private marital union so long as it sustains itself and yields new individuals with sufficient qualities to maintain the ongoing functions of the community as a whole. In short, it is anticipated that those raised intra-family have received such direction that, upon emancipation and emergence into the public community as free and independent citizens, they will live productive lives and respect the equal dignity of human beings.
Finally, as for "the planet chok[ing] on the greenhouse-gas emissions of the multiplying hordes," this neo-Malthusian supposition is empirically misdirected when world population growth has declined by more than 40 percent since the late 1960s.
Worried about greenhouse gases? It would be far more direct, to use Eric's terminology, to require automakers (and fuel-inefficient, consuming auto-buyers) to pay for the actual value of the air resources their products consume than to undermine the foundation of the civilized world as we know it.
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Holidays like Memorial Day are times for families to gather, and my married daughter, Katherine, a deputy county counsel for a Southern California county government, shared her reflections as a citizen and spouse upon the California Supreme Court's recent decision in favor of same-sex marriage.
Katherine astutely observed that one salutary byproduct of the decision would be to prompt the government to re-examine whether there are adequate existing incentives to have and rear children. Drawing comparison with practices in Europe, Katherine speculated that existing, marriage benefits in the United States might be better directed to and augmented for those same-sex or traditional couples who willingly assume the opportunity costs associated with having and rearing children, as opposed to those who don't.
As an aside, while we did not undertake a macroassessment of the dollar value of direct U.S. "marriage benefits," they do not seem to be overwhelming; for example, if a couple has disparate incomes, filing jointly is usually a benefit, but because of tax brackets, couples with high incomes may still be penalized; there is also a spousal exemption from estate tax, and of course, modest Social Security and Medicare spousal benefits. The benefits available to married employees (e.g., health and life insurance and retirement plan contributions) and the nontaxability or favored tax treatment of those benefits may be the most significant indirect economic benefit for married couples with or without children. There are few government or employer child allowances for children comparable to those found in other countries (see below).
It is well-known that falling birthrates threaten to undermine the economies and social stability across much of an aging Europe. Katherine's father (me) thought procreation one of the most plausible state reasons for skepticism toward a public affirmation of same-sex marriage. The argument had a rational but not compelling basis because of the obvious imperfect fit between marriage and procreation (e.g., elderly and infertile couples). The fact that our state Supreme Court has now reached the conclusion that a rational basis is insufficient to justify the traditional definition of marriage does not mean that the state interest in fertility and responsible parenting has disappeared.
Since this concern is even greater in Europe, it is reasonable, as Katherine counseled, to inquire as to thinking and experience in foreign venue. Consider: France. Until recently, French fertility rates had the same downward slope as the rest of Eastern and Western Europe, but today its fertility rates are increasing. In fact, France now has the second-highest fertility rate in Europe—1.94 children born per woman, exceeded slightly by Ireland's rate of 1.99. The U.S. fertility rate, by comparison, is 2.01 children. This has made France the subject of considerable study by officials from Japan, Thailand, and Germany, all of which are facing the prospect of dropping off a steeper demographic cliff.
What accounts for France's increased population? While it might be the romantic nature of Frenchmen and the historic connection to Catholicism, it is more traceable to some rather substantial subsidies for children and families paid by the French government. For example, the government provides reimbursement for child-care costs for mothers of toddlers up to the age of 3 and free child care from age 3 to kindergarten. The Washington Post reported that a new law "provides greater maternity leave benefits, tax credits and other incentives for families who have a third child. During a year-long leave after the birth of the third child, mothers will receive $960 a month from the government, twice the allowance for the second child."
While some of these allowances are progressive and aimed at low-income families, many are available to all, recognition that France better understands than the United States how it is discriminatory to make women choose between career and motherhood. Moreover, "French law [allows women] to opt not to work or to work part time until her child is 3 years old—and her full-time job will be guaranteed when she returns."
In sum, the French tax and economic system provides the following benefits for families:
- generous child allowances
- subsidized preschool and daycare
- substantial maternity leave and right of return
- tax benefits for transportation and some family purchases
- subsidies for in-home care
- government-provided recreation programs
- a private market that responds with services and hours of operation aimed at meeting working family needs, like, for example, pediatricians who make home visits
- the well-known French extended (36 paid day) vacation.
So, the next time you hear some U.S. official boasting about "freedom fries" rather than "French fries," feel free to tell them they have some ‘splainin to do. America and France may both extol family values, but France (and a number of other European countries as well) also values family in the way hard-headed economists understand.
In significant part, avoiding stigmatic harm to same-sex families prompted the inclusionary ruling by the California Supreme Court. In the court's words, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own—and, if the couple chooses, to raise children within that family—constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society."
The new importance of not drawing marital distinctions on the basis of sexual orientation should not obscure the equal importance of specially acknowledging the good to society that natural or adoptive parents provide—whatever orientation prompted them to come together.
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Professor Weisberg's thoughtful post responding to Megyn Kelly of The O'Reilly Factor on the Fox News Channel nicely illustrates an overlooked means by which Sen. Obama—seeking as our next president to build bridges and unbuild walls (disclosure: I endorsed the senator and give him lots of advice which I hope is helpful to him)—might defuse some of the acrimony that exists surrounding topics such as abortion and same-sex marriage.
While it was Kelly's thesis that it is activist and not in keeping with principles of federalism for state judges to trump the people, it was professor Weisberg's nice counterpoint that as in many claims of activism, whether one favors the state court over the people (Gov. Schwarzenegger's position in opposition to an anticipated November initiative that would overturn the same-sex marriage case) or vice versa depends on whose ox is being gored. It is not really possible to say that one is more in keeping with federalism than another.
But that is not to say that the distinction between the state and the people is unimportant. The phrasing in the 10th Amendment speaks of the "reserved [unenumerated power] to the states respectively, or to the people" for a reason. The phraseology illustrates that while the concept of federalism is typically associated with what is federal (viz. national) vs. what is local, the separate reservation in the 10th Amendment allows the people of a state to deny a delegation of their unenumerated reserved power to their state legislature. Indeed, the people may decide that no government entity—including themselves by initiative or referendum—should take a position on a given subject that has been so reserved.
This avenue for complete neutrality presents a possible common ground to defuse some of the rancor over abortion and same-sex marriage. Theoretically, it would be possible to declare both subjects as presently beyond the competence of government.
The California Supreme Court catches a bit of a glimmer of the potential for using neutrality as a reconciling device when it suggests that the California assembly might decide not to ascribe the sacred word marriage to any state license whether given to a heterosexual or homosexual couple. Rather, California state licenses might be called "civil unions" or "enduring unions," with the sacred affirmation of marriage being entirely reserved to nongovernmental actors to allocate in accordance with particular their religious traditions. Were California to follow that course, religious bodies would presumably then have less basis to argue that the civil law was affirming or honoring a relationship that cuts deeply against the revealed beliefs of those religions.
The same could be true with regard to abortion. Here, the formulation would mean that if Roe were overturned, the matter would not be returned to the states or to the people in their initiative/referenda legislative capacity but would be reserved to the people solely within their own church and family structures. It would be within those nongovernmental communities that the people would decide whether abortion is a matter of individual liberty or the taking of human life. Obviously, as a practical matter, this would leave the abortion decision to a woman and her doctor as Roe itself does, but critically, the law would not then be giving any civil-law approval or constitutional edge favoring one side over the other.
Would such reallocation of authority to the people outside of government be more accommodating of those who presently raise religious objection to abortion? Obviously, it does not put the full force of law behind stopping or curtailing the practice, but then it does not endorse it, either. The law would be entirely silent, leaving the people in their individually and voluntarily chosen communities to decide matters for themselves in accordance with their respective beliefs. That this would not be mere window dressing may be illustrated in the Catholic Church's own teaching, which, of course, is strongly against abortion. While the most preferred Catholic position is a construction of the Constitution that affirms the unalienable right to life for all persons from conception onward in the Declaration of Independence, the specific instruction of the church merely calls for the practice not to be "recognized and respected by civil society and the political authority," and admonishes its own believers to not exercise their free will to procure (or aid the procurement) of abortion.
The possibility of reserving sensitive questions over which the culture is deeply divided, and indeed, with respect to which there is insufficient consensus to justify either a positive law or judicial determination has more salience and potential for bridging even profound disagreement than the obscure 1791 formulation of states rights in the 10th Amendment may at first reveal.
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... there is a Republican core to yesterday's California marriage decision. Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)
It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them, by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices, following a campaign waged by Deukmejian.
Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let's not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about "living constitutionalism." Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California's Constitution?
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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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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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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.)