Oral arguments in the California Supreme Court lived up to, and exceeded, my highest expectations.
Chief Justice Ron George got the ball rolling with his very first question to Shannon Price Minter, representing the National Center for Lesbian Rights. In The Marriage Cases, the court had ruled that under the state equal protection clause, sexual orientation is a suspect class requiring strict scrutiny of any law that uses it as a factor - and that a law which denies same-sex couples the fundamental right to marry is unconstitutional. The Chief Justice immediately asked Minter whether his position was that any of these parts of the ruling were superseded by Prop. 8.
The answer was No, as it had to be.
And the entire three-hour argument could have ended there.
Our side - the pro gay marriage side - argued that Prop. 8 was a wholesale revision to California's constitution. This was based on the theory that equal protection is at the heart of any (fair) democratic system. Majority rule is a sound and time-tested form of government, but majorities must be subject to some checks on their power if they design rules that advantage themselves at the expense of a minority. And those checks should be structural - embedded in the constitution, itself.
That is exactly what the court articulated in The Marriage Cases. In order for Prop. 8 to be a revision, then, it would have to upset that fundamental order.
Our attorneys made some strong, and a few creative arguments to that effect. Equality is not a divisible concept; there is no such thing as a little bit of equality. Any attempt by a majority to undermine constitutional equality destroys its integrity.
But the integrity of equal protection is not the question before the court - only its continued existence. And it was clear to the Chief Justice that Prop. 8 had left intact both the equal protection principle, and, in fact, the equal legal rights that same-sex couples have in California. The voters constitutionalized the word "marriage," a frivolous use of the initiative power, but one that does not change the structure of California's constitution.
Linguistic shenanigans did not seem to strike the Chief Justice as something momentous enough to amount to a revision of the state constitution. The court would still have its constitutional authority to protect gays and lesbians from majoritarian laws that gave them lesser rights - and that would presumably include laws to reduce their rights as couples. Any law purporting to do so would be a violation of equal protection, period.
More important, this should logically suggest that any attempt to change the constitution to provide same-sex couples with fewer rights than opposite-sex couples would, in fact, be a revision of the constitution, requiring a 2/3 vote of the Legislature before it could go on the ballot. This is not what the proponents of Prop. 8 did, but if anyone tried, they could not do it with a simple amendment.
The pettiness of Prop. 8 is glaringly obvious to me, but will be highlighted if the court allows (as most people expect) the existing 18,000 same-sex marriages to continue. In the face of the simplest possible solution - any two consenting adults may legally marry one another - some heterosexuals continue to insist on an ever-devolving marital muddle that will plague us until common sense catches up.
20 Comments for “Equality With an Asterisk”
posted by Fitz on
“The voters constitutionalized the word ?marriage,? a frivolous use of the initiative power, but one that does not change the structure of California?s constitution.”
The pro same-sex “marriage” side doesn?t seem to think that the nomenclature is “frivolous” & neither do multiple Supreme Court including California?s itself in the original ruling.
Either did the Massachusetts Supreme Court find the word “marriage” to be “linguistic shenanigans” when the legislature asked it if it could create civil unions with all the same rights.
Why are the voters of California being downgraded as simpletons arguing over nothing? Why are gay ?rights? advocates and their judicial allies? also equally frivolous people for maintaining a right to the moniker as crucial?
posted by David Link on
Here’s the dilemma facing the voters, Fitz, as I see it, and as I think the court sees it (based on their questions during oral argument, which I may be reading wrong, but we’ll see). If they changed just the word, and left all the substantive rights of domestic partnership intact (which they did, and said they were doing), then this was constitutional wordplay with no legal consequences because no actual rights were altered. That can be done as an initiative amendment because it does not revise equal protection.
On the other hand, if they had wanted to do what the gay marriage advocates were arguing — revise the structure of constitution by actually carving out rights from equal protection (rights other than just a word) then they would, in fact, have needed to go through the process established for a constitutional revision, which includes a vote by 2/3 of the Legislature before it can go to the voters.
I certainly don’t think the voters are “simpletons.” But if I’m right about the direction the court is headed, the ruling will rest on the theory that it is only because this initiative is non-substantive that it is constitutional as an amendment. Consequently, if all it did was reserve in the constitution a word for the majority and withhold it (as a legal matter) from the minority, then what did people just spend over $80 million on?
You’re right in implying that we have been overarguing our own case. But which is the more frivolous: amending the state constitution to hold back a word from a minority, or the minority arguing that the word is worth fighting for?
posted by John Howard on
If they changed just the word, and left all the substantive rights of domestic partnership intact (which they did, and said they were doing)
If they said that, it was only because that was the way the DP’s already were and they interpreted the issue to be “are you trying to strip all protections from same-sex couples, or are you just trying to define the word marriage?”. They weren’t given an opportunity to get specific about what rights they felt should be in DP’s, but I think if they were allowed to speak freely and given all the relevant information about what rights are in question, they would not say they thought DP’s should have all the rights, especially the right to conceive children together, that marriage has, and they were probably assuming that by reserving marriage for a man and a woman they were saying that only a man and a woman should be allowed to conceive children. I think they thought they were making a substantive change somwhow, even if they have been led into darkness about understanding their own understanding.
But also the court in May didn’t rule on whether the state must give all the rights of marriage to same sex couples, they only ruled on whether the same bundle of rights had to be called marriage if it was called marriage for hetero couples. Of course they said yes to that, as they should have. But don’t pretend that they ruled that same-sex couples must get all the rights of marraige, they explicitly did not rule on that.
posted by Casey on
Watching the arguments, what I found most disturbing was Justice Kennard’s repeated statements that Prop 8 represented merely “a limited exception to equal protection.” This sentence makes no sense whatsoever. As soon as you start making exceptions for how one group is treated, equality is shattered, by definition. It’s an absurd statement, and a scary one coming from a justice who is supposed to uphold equal protection under the law.
posted by TS on
same-sex “marriage”
gay ?rights”
Fitz, have you been reading the Don Wildmon guide to using language to belittle those you don’t like?
So you’re either a straight person with an anti-gay attitude who is for some reason here at this website to make a fool of yourself…
OR…
you’re an actual, honest-to-god, self-hating gay! I hope you’re that! It’s not everyday you encounter one of those.
posted by TS on
With that said, I’ve already expressed my opinion that these legal arguments, while valiant, are bunk. The constitution says the ignorant throngs of CA can do it, and they did it. The lesson here is not gays don’t deserve to have marriage rights until the “people” say they can, it’s that large-scale constitutional democracy and big ugly nation states suck! Laws about culture and family life should be made on the local level. That way, Salt Lake can turn itself into a Mormon theocracy and San Francisco can turn itself into a gay utopia, and every other combination of possible living environments will exist in various localities. It would make for a healthier, less wasteful economy as well.
posted by Jorge on
If they changed just the word, and left all the substantive rights of domestic partnership intact (which they did, and said they were doing), then this was constitutional wordplay with no legal consequences because no actual rights were altered.
Oh.
posted by Richard J. Rosendall on
John Howard wrote, “the same bundle of rights had to be called marriage if it was called marriage for hetero couples….”
John, your insistence that this is not the same as ruling “that same-sex couples must get all the rights of marraige” is a distinction without a difference. This fixation on marital reproductive rights is misguided. Where in current law are married couples given a right to reproduce that unmarried couples do not have? If you are simply making the point that sex between two men or sex between two women cannot result in pregnancy, then you are making an obvious and trivial point. If that is your only point, there clearly is no need to worry about it in legal terms unless you are afraid of a miracle. If your point is a broader one, for example that same-sex couples should be denied access to artificial insemination or adoption, well that seems to me a radical proposal indeed from the perspective of one who opposes excessive govornment intrusion into people’s lives. In any case, I have seen little evidence that reproductive rights are at the center of either the public debate on SSM or the California court case. Clearly you are concerned about it, but that doesn’t make it central to the CA case or to the broader debate.
posted by John Howard on
Richard, the court made a big deal out of that distinction:
And current law shares with all of human history the universal understanding of the word marriage as meaning the right to have sex and procreate together. Justice Kennedy’s Lawrence v Texas opinion makes an aside that marriage is about the right to have sex, at minimum. No one objected to that because it is so obvious. The right to have sex is the right to conceive.
Why do you object? Do you want to deny marriage has a right to conceive children? That’s a radical change. My proposed compromise wouldn’t change any laws about sperm donation or surrogacy or adoption, the only thing it would restrict is using modified gametes to create a person that is not the direct unmodified offspring of a man and a woman. In other words, it would prohibit cloning, synthetic DNA, gene splicing, parthenogenesis, and same-sex conception.
Do you insist on same-sex conception being a right, right now? Where is it written in the law that same-sex conception or genetic engineering a person into existence is a right? My idea, richard, is to agree to put off the demand for same-sex conception rights until the country has had a chance to consider the ramifications, and in the meantime roll-back marriages to Civil Unions so that marriages continue to protect the couples right to conceive children together, right now. Instead of brashly demanding equal conception rights to a man and a woman, try some humility and acknowledge reality and we can probably achieve equal protections very quickly.
posted by David Link on
To be fair to John Howard, at least as I understand him, I think his point has to do with pure biology — the “right” is inherent in the distinct male and female contributions to reproduction.
But, of course, we have long since learned how to control biological reproduction and have, in fact, recognized the constitutional right of heterosexual couples (at least) to choose not to have children. Once Griswold v. Connecticut was decided in 1964, and heterosexual couples knew they could rest easy in making the decisions about whether or when to have children, we had taken the first step in reducing any biological distinctions between heterosexual and homosexual couples: Step One — heterosexual couples can not be legally required to have children if they don’t want to.
Next up was the advances in reproductive technology, which allowed homosexual couples TO make a reproductive choice (at least one partner at a time) more easily and medically responsibly — and this option would, for the first time, include male couples. Step Two, then, in reducing the differences between heterosexual and homosexual couples when it comes to reproduction is the ability of both couples to beget children biologically related to them despite biological barriers.
Finally, Step Three was legislation positively allowing homosexual couples to adopt children. This was a social policy decision that recognized children with no biological relation to their parents can still benefit from being raised in a loving home, irrespective of the gender of the parents.
Bottom line for me, then, is that when it comes to the relation between parents and children, homosexual and heterosexual couples, while not entirely identical, are far more “similarly situated” to one another (the legal standard for equal protection) today than they have ever been in history. The sole difference from the legal and social policy perspectives is the bare fact that heterosexual couples *can* reproduce without assistance — thought they are not required by any law to do so, and under Griwsold can not be required to.
The arguments about the central importance of reproduction as a justification for unequal marriage laws, then, strike me as ignoring or minimizing the significance of legal, social and medical advances that no responsible public person is arguing we eliminate in their entirety. Until we take back all three (and I don’t know how we could take back the medical knowledge we have), reproduction has a different role as a justification for marriage than it ever has in history. It is irresponsible to leave that out of any discussion.
posted by Fitz on
?If they changed just the word, and left all the substantive rights of domestic partnership intact (which they did, and said they were doing), then this was constitutional wordplay with no legal consequences because no actual rights were altered.”
Despite the claim that domestic partnership is equal to marriage, oft bandied about by proponents of different labels, it isn’t. California has had marriage throughout the entirety of its history as a state. Hundreds of statutes with thousands of cases have interpreted the rights and obligations arising in marriage. Using a different label, no matter how similar statutorily is makes civil unions a different legal entity than marriage. Conflating the two opens the door to litigation by those who wish to use the law as a weapon against those who disagree with the conflation.
The fact of marriage changes the legal relationship not only between the couple (which is where most of the change occurs) but also their relationship to third parties, such as landlords, employers, health care workers and others. What matters here is not legal enforceability after a suit, but practical enforceability without one. Married people expect to have those differences recognized when it matters. Different words impede that. Don’t take my word for it. Take the word of the New Jersey Commission on Civil Union, in its published report on the topic. And the Commission concluded, it’s not about education because VT with civil union for seven years is still has these same problems. Those being the inability to use both federal and state laws as a weapon against divergent view points.
posted by John Howard on
David, thank you for trying to be fair and address the issue of reproductive technology, which is on the verge of making same-sex conception – true, shared biologically related offspring – possible, as well as make it possible to modify genes and create children that do not derive from a man and a woman through their natural ability.
The right to reproduce does not derive from the natural ability, as siblings of course have the ability and don’t have the right, and many couples don’t have the ability but still have the right. The right to reproduce is dependent on whether society thinks the couple should have the right to reproduce, and to decide that we balance everyone’s basic civil right of man to reproduce with the person of their choice using the couple’s own genes (Skinner, Loving), against the need for society to prohibit certain situations (rape, statutory rape, adultery, etc) and relationships (incest, existing marriages) that apply to everyone equally.
So my point is that just as Loving was about whether the Lovings had a right to conceive with each other and therefore a right to be married, or whether Virginia had a right to withhold that right and prohibit them from procreating and creating children that threatened the system of white supremacy, we now face the same sort of decision about same-sex reproduction, and it should be decided along with marriage rights so that marriage rights continue to protect the couple’s right to conceive together using their own genes. We shouldn’t separate those questions because it would mean that marriages can be prohibited from attempting to procreate, and it would be very demeaning to marriage to strip the right to have children from every marriage. Instead, we should resolve this chapter of the debate with Civil Unions like I describe, defined as “marriage minus conception rights”, leave marriage untouched for now, and then move on to the question of allowing same-sex conception separately. Then if we decide later to allow it, we’d allow same-sex marriage. But let’s address that later and make equal protections and federal recognition the priority now.
posted by BobN on
It’s surprising that the Justices themselves seem to think that there are no substantive differences between marriage and DPs in California. In re: Marriages identifies nine differences. I guess they forgot about those.
Not to mention the differences when one travels. Does Massachusetts recognize DPs as marriage? I doubt it. Spain doesn’t. Canada doesn’t.
posted by David Link on
BobN:
It’s not that the justices don’t recognize substantive differences, but that they are only charged with looking at differences between DP and marriage under state law. They could not overturn DOMA, or change the law in Massachusetts or Spain. From the standpoint of the laws that fall within their jurisdiction, DP and marriage are treated identically.
The social differences between DP and marriage are obvious to me and enormously important. But courts can’t enforce — or even define — social differences. That is the province of the culture generally.
The issue the court faced here is whether a constitutional provision passed by the voters that reserves the name “marriage” for heterosexuals, but does not otherwise affect the laws of California treating DPs the same as married couples is so significant a change to the structure of California government that it amounts to a revision of the constitution, rather than just an amendment to it. That, at least, is the direction I saw the court’s questions leading it. And if that is the way they see the question, I believe the ultimate opinion will not be a tremendous loss. If they rule the way I think they will, we will still have social and cultural work to do, both here and in other states, and will have to continue the fight to remove this bit of trivial wordplay from our constitution — the repository of our highest ideals. But our equality under California law — and I emphasize “law” rather than culture — will remain intact.
posted by John Howard on
It didn’t “reserve the name “marriage” for heterosexuals”, it said that only marriage between a man and a woman is valid or recognized in California. It didn’t say “only unions between a man and a woman may be called marriages”, it addressed the bundle of rights that is marriage, which the court already said had to be called marriage if they are called marriage for any couples. The May decision still stands, even if everyone pretends it was a different decision. It remains unconstitutional to give different names to the same bundle of rights.
There is no reason to believe that voters want same-sex couples to have the same bundle of rights, even though that is what the legislature did with DP’s. The court didn’t say that same-sex couples must have the same bundle of rights, they specifically didn’t address that question. I think the court and voters agree, despite how it has been portrayed by the portrayers. I think the voters were voting against giving the same bundle of rights, and suggest a poll on whether same-sex couples should be allowed to attempt to procreate together using genetically modified gametes to prove my point.
posted by esurience on
John Howard,
Opponents of domestic partnerships tried to get a measure on the California ballot to strip those from same-sex couples as well. They couldn’t even gather enough signatures.
posted by Casey on
esurience, the only reason they couldn’t gather enough signatures was that they didn’t have the funding. Getting a measure on the ballot in CA costs about a million dollars due to the need for paid signature gatherers, and the people who wanted to limit marriage rights in CA chose to invest in the language that became Prop 8. If they chose to invest later in domestic partnership stripping language, I’m not sure we could say confidently that they would fail to get on the ballot, especially not now that they know, because of Ken Starr’s argument, that it would be constitutional to do so.
posted by BobN on
“From the standpoint of the laws that fall within their jurisdiction, DP and marriage are treated identically.”
That is just flat-out not true. There are (at least) nine differences between marriage and DPs in California. Most are trivial and relate to paperwork. At least two are not trivial. One restricts DPs to more stringent requirements of age. The other REQUIRES cohabitation. I do not see how the Court can ignore that.
And the cohabitation requirement is NOT trivial to me, in case you wanted to assert its unimportance.
As for foreign law, you’re right, the justices cannot change foreign law, but it is dishonest to say they should ignore the real consequences of confining gay couples to a less-than-marriage legal relationship. The U.S. is signatory to treaties regarding marriage. U.S. same-sex marriages ARE portable to some countries. DPs are not necessarily.
posted by John Howard on
Hmm, I don’t think there should be a co-habitation requirement for same-sex couples to get Civil Unions, and in my compromise, where CU’s are defined as marriage minus conception rights, there would be no differences except conception rights. I agree that opens them up to “Chuck and Larry” fraud more, and might mean some minors get married if that’s possible with heterosexual couples (perhaps they need parental approval?), but I don’t think either of those should be requirements for either types of couples. There is lots of fraud in hetero marriages also, usually for immigration purposes, and fraud is already illegal and policed by the INS, who prosecute cases of entering fraudulent marriages with both state and federal laws, I think. Whether we’d do that for Chuck and Larry situations that didn’t involve immigration, I don’t know. I’m also not sure how the INS would determine bona fide marriages in situations where the couple was forbidden from attempting to procreate, since being open to procreating together is basically the defintion of a bona fide marriage. But they could come up with a measure of commitment somehow, and I don’t think it would need to require cohabitation.
posted by David Link on
BobN, you are absolutely correct about the cohabitation requirement, which I know about because I personally signed off on it as a factor in my 1990 law review article about domestic partnership. This is not trivial at all.
To be fair, though, it applies only at the time the DP is entered into, and I don’t believe it needs to be an ongoing requirement. Nevertheless, it is a difference from what our marriage law requires of opposite-sex couples, and I think could be challenged if a couple were denied a DP because of it.
In the real world, I can’t see it coming up very much. As with marriages, the validity of DPs are seldom, if ever looked into except when one of the partners, themselves, challenges it (in, for example, a break-up). That doesn’t make the law any better, but it does illustrate how the culture moves forward despite legal pockmarks and potholes.
As someone who has a bit of responsibility for one of those potholes, I can minimize its importance in the daily life of DPs, but you are quite correct to bash me over the head with it.