Monday, May 19, 2008

In re Marriage Cases

I've read the opinion in In re Marriage Cases, which I kind of felt like it was my responsibility as a lawyer to do. And now, like Kaylee (provisionally so named), I'm going to comment on it. Even though, like Kaylee, I don't really need to.

Except that I do need to, because I feel like this is one of those issues that besmirches the honor of my religion, and I hate it when people besmirch my honor.

So what do I have to say about it?

First, for people (like me) who haven't bothered to keep up with this, it's important to understand that for purposes of California law there is no difference between the rights of married people and the rights of registered domestic partners. That's right, none. You get into the relationships differently (though not substantially so), but the actual rights, privileges, and responsibilities are identical in California. This has been true in this state for five years, ever since the passage of the Domestic Partnership Act. We are not one of those states where domestic partnership confers only some of the benefits and burdens of marriage.

Nevertheless, as a result of Proposition 22, passed in 2000 by 61.4% of California voters, marriage was defined in California as between persons of opposite gender.

I mention this because it's important to understand that In re Marriage Cases was not dealing with the the issue of gay marriage as a question of rights. For purposes of California law there is no question of rights; there hasn't been since 2003. The question was, instead, one of names. Simply put, the question was this: given two essentially identical institutions, does the California Constitution permit them to be called by two different names?

The answer our supreme court has given us is no. Strictly speaking, the court has only ruled that they have to be called the same thing, whatever that may be. Of course, they're both going to be called marriage, but please note the technical detail.

Much of the majority's "analysis" is, I think, either deeply flawed or simply superfluous. The majority opinion reads to me like the justices were trying to make a statement in anticipation of the fallout. I understand the necessity of that but it's distasteful, and I'm glad the dissenting justices called them on it.

Nevertheless, I think the majority has a solid core argument. Stripped down, the majority opinion boils down to two points. The first is, given that the California Constitution guarantees Californians the right to marry, does the Prop 22 scheme violate that right? The second is, given that the California Constitution guarantees Californians equal protection under the laws, does the Prop 22 scheme violate that right? The California Supreme Court has answered yes to both questions.

It's the right to marry that's the thorniest problem, I think, because the analysis of the equal protection claim really depends on the definition of marriage for technical reasons that I won't bore you with here unless you ask. If the two-name scheme reminds you of "separate but equal," it probably should; it clearly reminded the majority justices of that as well. The majority tackles the question of the right to marry by analogy to interracial marriage cases. The dissent tackles it by analogy to tradition.

The essential question is this: what does it mean to marry? Leave aside Prop. 22. Does marry mean, as the majority would have it, to establish with the person with whom the individual has chosen to share his or her life an officially recognized and protected family? Or does the word inherently carry the concept of opposite gender, as the dissent argues?

To understand the legal difficulty here you have to understand that this is not a question of rights, policy, equality, or justice. This is a question about language. The dissent argues that the word marry means an opposite-gender union. That is, after all, what it's traditionally meant in California. I point this out because it's easy to see words like "tradition" in the gay marriage context and dismiss it as homophobia or merely being hidebound, and I don't think that's what's going on in this case. How else are we to understand the meanings of words, if not by tradition?

The majority argues by analogy from interracial marriage cases, from which they infer that the California right to marry is not the right to marry an opposite gender person of your choice, but rather the right to marry a person of your choice. That is, certainly, the way those opinions were phrased. Of course, opposite gender was understood.

Which side has the better argument? To be honest I don't think it's clear. I go back and forth myself. I am in favor of legalizing gay marriage as a matter of policy, but that doesn't tell me what the Constitution says, and what the Constitution says - not what it should say, not what is just, not even what is right - is the question in this case. On balance, I find the majority's argument slightly more persuasive than the dissent's, but only by a hair. And of course, I am biased towards the majority's result.

The reason I discuss all of this (besides the hope that some of you might find it interesting) is because I've seen some sentiments reported in the media about this case that just infuriate me. In re Marriage Cases is not, in my strongly held opinion, a case of judicial activism. Yes, ultimately, I think the justices had to make a judgment call about what they thought the right to marry means. But that is what justices do; you can't get more judicial than deciding what the Constitution says. If the decisions of justices change the law of the land, that isn't a result of judicial activism. It's a result of having a common law regime. Judicial decisions change the law in this country by virtue of their very existence. That's a bedrock principle of American law.

As for overturning the "will of the people" ... so what? In the first place, justices are not bound by the "will of the people." They are solemnly charged with ignoring the "will of the people" in favor of impartial application of established legal principles. In the second place, as the majority rightly points out, the Constitution is the will of the people. If the will of the people contravenes the Constitutional limits they have placed on themselves, there are but two recourses: change the Constitution, or leave the state. Prop 22 was neither.

I should be clear: I am not the guy you want at your gay pride rally. My views of homosexual sex are strictly "conservative" and, I hope, strictly textual. That's an uncomfortable fact, and I admit that, but I'm not Christian because it's comfortable.

But what, I wonder, do the opponents of gay marriage fear? I can only conclude that it's one of two things: they can't bring themselves to willingly grant rights to something they think is morally wrong, or they fear that the dignity of their own marriages will be impugned by giving rights to something that they think is morally wrong.

The latter is, I think, just bigotry, and suffers as well from a serious defect of understanding as to whence comes the dignity of marriage. That topic needs no more discussion.

The former possibility I think is not bigoted so much as narrow-minded. The fact of the matter is that we already grant affirmative rights to things I (they, we) think are morally wrong. That is precisely what American religious toleration is - and frankly I think a person's religion is a far larger moral issue than a person's sex life. And yet here I am (here, presumably, we are), holding simultaneously to our views that Christ is the one and only savior of mankind and supporting freedom of religion. Why? How?

This is a question I wish America's politically active (and inactive) conservative Christians would give considerably more thought to before they speak another word against the cause of gay marriage. For me, I can hold the views that I do about religious toleration because I don't think establishing Christianity as the state religion of the USA would advance the Kingdom of God. In fact, I'm convinced that doing so would be extraordinarily counter-productive to that goal. People do not fall in love with Jesus Christ because his church has more rights than other churches.

Similarly, I am at a complete loss to describe how prohibiting gay marriage is going to cause people of any sexual orientation to fall in love with Jesus Christ. Given that, I am in favor of the option which grants the most dignity* to the most people, which in this case means being in favor of gay marriage as a legal institution (I'm also, in case you're interested, in favor of gay marriage for a variety of social policy reasons, but all of those are secondary to the Christ issue).

As I said, I'm not the guy you want speaking at your gay pride rallies. But I hope I am, as The DM said, an important demographic - a conservative Christian who may disagree with the content of gay marriage but is nevertheless ideologically wedded to the idea that it must be allowed. If my co-religionists want to oppose legalizing gay marriage, well, that's fine by me - so long as they can tell me how doing so causes people to fall in love with Jesus Christ.

* It is, of course, people falling in love with Jesus that is my primary concern here. It isn't people's dignity, or even the gender of people's sexual partners. Pastor Jack used to say that his advice to legislators was simply, "Get to know Jesus, read the Bible, and make your own decision." I feel similarly about the issue of gay sex, and particularly the people who wrestle with being Christian and what the Bible seems to say about gay sex. I don't want to tell anybody who they can and can't sleep with. I want them to get to know Jesus, read the Bible, and make their own decision. And I wish my co-religionists would focus more on helping people fall in love with the God we fell in love with than trying to tell them what to do.