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May 19, 2008
Gay marriage the wrong way
Posted by: Chris
I realize that my post the day after the California marriage decision was lengthy and had a bit of legalese (OK, a lot). Several readers have asked me to boil it down for non-lawyers so I'll give it a shot.
The criticism already leveled by conservatives at the marriage ruling is that a bare majority of the California Supreme Court usurped their authority and essentially legislated from the bench, opening marriage up to same-sex couples when the issue should be left to the democratic process. The court rightly rejected that argument, since state and federal constitutions exist in part to limit the power of "the people" to trample individual rights.
But in reaching the correct conclusion -- that having domestic partnerships for gays and marriage for straights violates California's constitution -- the court overreached in two important ways. It devised a remedy that should have been left to the Legislature and it decided important legal questions that should have been left to future justices ruling in future cases.
Problem No. 1
The question that should have been left to the people is not the constitutional one that has conservatives in such lather, but a legislative one. After deciding the constitutional one, the court chose to order county clerks to begin issuing marriage licenses to same-sex couples immediately upon the effective date of the decision -- 30 days from last Thursday.
But the court majority twice acknowledged in the opinion by Chief Justice Ronald George that "marriage for everyone" wasn't the only possible solution to the constitutional deficiency of existing law. The other option would be having the same institution for straight and gay couples but calling it something else: domestic partnerships, civil unions, civil partnerships or whatever.
The court should have followed the examples set by the high courts in Vermont, Massachusetts and New Jersey, which all declared hetero-only marriage laws unconstitutional and yet left it up to their respective legislatures to pick what should replace it.
Problem No. 2
On that constitutional question, the court struck down the existing marriage/D.P. laws for three separate and independent reasons:
- Due process: Banning gays from marrying violates their fundamental right to marry.
- Equal protection: There's no compelling justification for how these separate institutions (marriage/D.P.) impinge on gays' fundamental right to marry.
- Equal protection: There's no compelling justification for how these separate institutions discriminate on the basis of sexual orientation.
Any one of those three reasons was enough to reach the same result. The first one, based upon the "right to privacy" (meaning autonomy) is expressly guaranteed in the California Constitution, would have been the least controversial because it didn't require reaching the whopper issue that deciding based on equal protection did.
Even ruling based on equal protection didn't require deciding that whopper issue, which is whether sexual orientation should be treated by the courts like race or gender. Since the majority ultimately concluded there was no legal justification whatsoever for treating gay and straight couples differently, they could just as easily struck down the current laws using even under the most deferential analysis.
Instead, the California court became the first state supreme court in the entire country to decide that sexual orientation is a "suspect class" like race or gender. That's a huge victory for gay rights, and one that's fully justified in my view, but it shouldn't have come now, in this case.
Winning is always good, but the way you win is also important. The court could have ruled in favor of the gay plaintiffs in ways that were less controversial and less likely to be overturned by the ballot measure in November. A more narrow victory might also have been more influential with other state supreme courts wary about charges of judicial activism and being overturned by the voters.
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Comments
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The Supreme Court could not avoid the issue of whether to apply strict scrutiny because that was the basis the majority on the court of appeal, denied the plaintiff's relief. Under California law the Suprem Court can't overrule the court of appeal unless they overule them on each basis on which the lower court ruled.
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In effect, words or names are the basis for the decision and Leibniz's Law of Logical Identity.
"Marriage" is an "idea," not an "institution." The word "Marriage" has hundreds of descriptive statements in the set, which ironically, share virtually the same descriptive statements as the sets named "civil unions" and "domestic partnerships."
So the Court asks, Why? Why are different names used to identify the same set of descriptive statements? The only reasonable explanation is to "stigmatize" homophiles as "inferior" by a nominalistic equivalence of "separate, but equal" (Plessy, 1894) as in "separate names, but equal sets of descriptive statements." And that's blatantly discriminatory (overturned in Brown, 1954).
But the State, argues the Court, cannot deliberately discriminate or stigmatize a people without an overriding and compelling reason. But, if "domestic partnerships" and "marriage" are identical in all but name, then it stands to reason, that the different names are used SOLELY to stigmatize one as inferior, and that deliberately discriminates not only in names, but has no compelling reason, and discrimination qua discrimination is unconstitutional.
Brilliantly argued. And primarily on the grounds of nominalism and logical identity -- what is named and their identities! It is not only the right decision, it is the right reasoning, and we need to thank the Governor and Legislature for "domestic partnerships" which exists, as "separate, but equal" in all but name.
The court did NOT invoke equal protection, it did not invoke a single federal law or principle, IN ITS REASONING.
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(a) California judges are elected, and thus democratically accountable;
(b) the elected legislature has twice passed a marriage equality bill, which Arnold vetoed--saying the courts should decide, as they now have; and
(c) the California justices, like everyone else in the California political system, knew perfectly well that voters will get the final word this fall. This is hardly a rogue decision from an unaccountable court.
The comments to this entry are closed.
Strict Scrutiny on May 19, 2008 12:59:29 PM:
Just to add a bit to my commentary from Friday's post ...
The other option would be having the same institution for straight and gay couples but calling it something else: domestic partnerships, civil unions, civil partnerships or whatever.
You can't be serious? Like I said in a previous comment, it is naive to think this state would ever abolish the institution of marriage in favor of "civil unions" for everyone. If that happened there would have been mobs with pitchforks and torches outside the Legislature AND the Supreme Court. And the conservative talking point headline would be "Gays F-ck up Marriage for Everyone in Egotistical Quest for "Equality." Not exactly what I had in mind.
Plus, if marriage is a fundamental right, the state arguably does not have the option of abolishing that institution in favor of "civil partnerships."
The court's decision here was proper.
Any one of those three reasons was enough to reach the same result. The first one, based upon the "right to privacy" (meaning autonomy) is expressly guaranteed in the California Constitution, would have been the least controversial because it didn't require reaching the whopper issue that deciding based on equal protection did.
The result is controversial no matter what; the people who oppose same-sex marriage don't care how the court got there.
The fact that the CA statutes violated same-sex couples right to marry necessarily requires an analysis of what the "right to marry" entails. Clearly, same-sex couples have access to all the rights and privileges of marriage. So, where's the constitutional violation? To answer this question, an analysis of CA's 2 schemes for creating legal relationships is in order. This leads to an E.P. analysis...
Given that CA had 2 different but similar schemes for the creation of legal relationships, one for gays and one for straights, a separate but equal situation was bound to develop. E.P. is the appropriate means of analyzing separate but equal situations. Therefore, the Court was required to examine the E.P. issue. The court's finding was legally correct, in my opinion. Having a separate legal institution for gay couples robs them of dignity and status conferred on opposite-sex couples. It implies that their relationships are not as significant or meaningful as those enjoyed by opposite-sex couples. I agree.
Even ruling based on equal protection didn't require deciding that whopper issue, which is whether sexual orientation should be treated by the courts like race or gender. Since the majority ultimately concluded there was no legal justification whatsoever for treating gay and straight couples differently, they could just as easily struck down the current laws using even under the most deferential analysis.
Chris, you're putting the cart before the donkey. You don't do an E.P. analysis by figuring out the result and then subsequently applying the standard, rational or strict. You first pick the standard. In this case, it was SS. Then you apply the facts. It may well have been that SS was overkill because the discrimination could not survive RB, a more deferential standard.
But that doesn't mean the court erred by applying a heightened standard and explaining its reasons for doing so.