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.


Graham said...

Thanks for your opinion on this. I appreciate your ability to balance religion, law, and freedom even when they present conflicts that freak other people out.

Personally, I think it's a bit silly that we've gotten to the point of having our judges spend their time on definitions, though I guess someone has to do it. How will this trickle down to dictionaries? already includes the same-sex option in its definition. :-)

As for tradition, yes it's important in determining definitions, but it can't be the only thing. Society changes so rapidly these days (compared to, say, the middle ages) and our language has to keep up. Definitions should be more descriptive of usage than prescriptive because people start saying things before they're in dictionaries or laws. I was just thinking today about how "wireless" now refers to internet, rather than radio, though there are probably more relevant examples we could pull up if we wanted to. Judges didn't have to make a ruling on that, it's just a term people started using and now it's an accepted definition.

One might say that descriptive definitions only work if enough people use a word in the same way, and we have much more of an edge case with "marriage." But lots of words have multiple definitions (including this very one, as I mentioned re: Merriam-Webster). As long as the law allows these unions to be treated equally (as you say is true for California) then we ought to let people use that word for it if they want to.

Maybe this is all a long way of saying "yes, please do bore me with those technical details you mentioned so I can understand why the language aspect is important." :-)

Natalie said...

Might want to expand the comment box for this one.

The equal protection issue is pretty interesting for a couple of reasons, but the reason I say it depends on the definition of marriage is this. Claims under the equal protection clause (either the California or the federal) have basically two versions. Either you can allege that a law is discriminatory on its face, or you can allege that it isn't discriminatory on its face but it's discriminatory in that it has a disparate impact.

The Prop 22 law is not discriminatory on its face. This is kind of surprising given how we tend to think about it, but it's perfectly obvious if you just read the law. The law doesn't say that homosexuals can't get married, or that only heterosexuals can get married. The law looks at gender, not sexual orientation. That isn't facially discriminatory; homosexuals can still get married to persons of opposite gender (just as, if they wanted to, heterosexuals could register as domestic partners with persons of the same gender, or of opposite gender if one of them is over the age of 62).

The majority glossed over this and said that, realistically, the law is facially discriminatory. In my opinion that's dirty pool. Either the law is facially discriminatory or it isn't, and we have doctrines to deal with the case where it isn't.

If a law isn't discriminatory on its face, then you have to allege that it's discriminatory via disparate impact. The reason the majority made that gloss, I think, is because discriminatory impact claims require that you prove that the law was passed with discriminatory intent. That's probably impossible with a law like this. 61.4% of voters adopted this law, and presumably they did so with thousands of different individual motivations. Some gay rights activists might feel that it was passed with discriminatory intent, but that would probably be very difficult to prove.

Even assuming you were confident you could prove discriminatory intent, though, you'd face a threshold obstacle. "Disparate impact" by itself is perfectly constitutional. It's perfectly fine for a law to discriminate between, say, those who beat up old ladies and those who don't, even if such a law lands much more heavily on robbers of old ladies than on the rest of us. So the first part of a disparate impact claim is that the population discriminated against and the population not discriminated against must be similarly situated with respect to what the law aims to achieve.

So we would have to ask: are homosexuals and heterosexuals similarly situated with respect to this law? The majority would say yes, because they both want to form an officially recognized family of equal dignity to the traditional institution of marriage with the person of their choice. The dissent would say no, because the word marry, Prop 22 or no Prop 22, can only be understood as referring to opposite-gender unions by any fair definition.

Of course you sidestep that question entirely if you just say that the law is discriminatory on its face. But the law isn't discriminatory on its face; I think the majority is obviously wrong there. So if you analyze the issue properly under a disparate impact theory, you still have to decide what the word "marry" means in order to decide whether the two populations are similarly situated.

Graham said...

Alright, I think I mostly understood that, though I'm reminded of why I'm glad I'm not a lawyer. :-)

Your very last sentence sounds strange to me, though. I'd rather decide what the wordy "marry" means based on two populations that are similarly situated, rather than vice versa. People first, then language.

If we assume freedom of sexual orientation (so that homosexuals aren't in the same category as people who rob old ladies) then the discrimination by impact comes from the fact that, while everyone can marry, not everyone has the same permission to marry someone they're likely to want to.

But like I said, I'm no lawyer....

Natalie said...

My point about the last sentence was this. I'm not exactly sure what "freedom of sexual orientation" would mean in a technical sense, but let's go ahead and assume there's no public policy against homosexuals embodied by any law. You still have to decide what the purpose of the law is. Let's try to define it without using the word "marry" as a part of the definition. Is the purpose of the law to ensure that everybody can form an officially recognized and protected family of equal dignity to the institution historically labeled "marriage" with the person of their choice? If so, then both heterosexuals and homosexuals are similarly situated, because they both want to do that, and you have disparate impact because the law ensures that heterosexuals will be more able to do that than will homosexuals. This seems to be the way you're trying to phrase it.

But is that the purpose of the law? What if the purpose of the law is to ensure that everybody can form an officially recognized and protected family of equal dignity to the institution historically labeled "marriage" with the person of opposite gender of their choice? This seems like a much more honest rendering of the law's purpose to me. And if this is the purpose of the law, then the two populations aren't similarly situated, because only heterosexuals want to form an opposite-gender union.

Two things to note about this. One is that by casting the purpose of the law in these two different ways, we have really ended up deciding what "marry" means. This is because the law, as worded, is a dictionary-style definition of marriage. It may be stupid, as you said in your first comment, but that's what we get as a state for passing a controversial law that takes the form of a dictionary definition.

The second thing to notice is that the second reading, which I suggest is the more faithful read of the law, will strike many of us as unfairly anti-homosexual. It isn't fair, we may protest, to pass a law that says reserves the term "marriage" for only one population. "Marriage," we might say, is such an ancient and dignified term that it should be available to all.

This objection would touch on what I think is the real heart of this case. We tend to forget, situated as we are with respect to the progress of the gay rights movement, that the very term "gay marriage" was probably a novel oxymoron when first coined. On the historical understanding of the word "marriage," it would be theoretically possible for a gay couple to form an officially recognized and protected family of equal dignity to the institution historically labeled "marriage," but the verb for doing so would not be "marry" and it would be nonsensical to call the resulting union a "marriage." The very use of the term "gay marriage" by the gay rights movement is, I suspect, a plea to make gay unions of equal dignity to heterosexual ones.

Ultimately the majority decided this case on the dignity question. Homosexuals can already form officially recognized and protected families of equal dignity to the institution historically labeled "marriage" with the person of their choice in California ... if by "dignity" we mean "legal standing."

Maybe that's all a lot of gay rights activists are shooting for. But I get the impression that most gay people, at any rate, aren't looking for the rights of marriage so much as marriage itself. They want society's understanding of marriage to change so they too have access to the ancient and dignified word - not for the rights attached, but because they value the word itself; the word itself has dignity apart from any attached rights or obligations.

This is, if you're interested, the basis on which the majority finds a violation of the right to marry and the EPC. It probably brings to mind the infamous "separate but equal" issue of Brown v Board, but that's not actually it. The Constitution has no problem with that phrase, and lots of institutions actually are separate but equal (e.g., separating college sports into men's and women's teams). In other cases, however, that's not the case. The majority draws on analogies to some famous cases involving the names of prestigious educational institutions as examples where the name itself was important. Going to a law school in Texas established for black people just isn't the same as going to the University of Texas, even if the quality of your education is exactly the same at both schools.

This, the majority argues, is just such a case. Despite being legally equivalent to marriages, the majority holds that California domestic partnerships are not of equal dignity precisely because they don't have access to the prestigious name. As a result, the name must be either given to all or taken away from all.