IGF CultureWatch

The constitutional contest over same-sex marriage alternately invokes two foundational principles embodied in very different landmark cases: Brown v. Board of Education's equality doctrine and Roe v. Wade's principle of autonomy. Of the two, it is Brown that should properly dominate, and ultimately decide the case.

Brown was initially controversial because it flew in the face of a still prominent prejudice of the time, that African-Americans were inferior to, or at least so profoundly different from Caucasians that a separate set of rules was necessary to deal with them. Even when the prejudice was couched in condescending terms ("We're just trying to help them;" "Segregated schools benefit the whole society"), it depends, ultimately, on error. Whatever commonality blacks may have in skin color, they are still, every one of them, individual humans with individual backgrounds, lives, psychologies and aspirations. The very existence of a benevolent exception (for "Good Negroes") demonstrates how situated the preconceptions were about the group.

The controversy over Brown has faded as that error has been exposed. It is now not only settled law, but iconic. While there is still prejudice based on skin color alone, it continues in spite of Brown. The existence of that prejudice shows only that some people remain impervious to facts, remain wedded to fencing minorities off rather than accepting their unique humanity - or humanities.

Roe has been controversial since it was issued in 1973, but for very different reasons. Its central theory was an amalgam of constitutional provisions that protect a right I think was misnamed "privacy." I obviously believe that individual liberty as against government is what gives life to our constitutional democracy, which is why I think the result of Roe is ultimately correct. But I can't say the constitutional criticisms of it are without merit.

But Roe is controversial for a second, and more important reason. It is based on a moral judgment about abortion that is beyond the realm of facts. People who believe life begins at the moment - the instant - of conception are not making an error, they are making a judgment. No one can prove whether that judgment is accurate or not.

This is the disconnect on same-sex marriage. Its supporters believe opponents are making an error about homosexuals in general, viewing them as a group in ways that ignore, and even suppress individual humanity. Marriage is one of the most human -- and humane -- institutions imaginable, and its denial to same-sex couples causes tangible harm to them and to their children. This is hard to prove, but it is provable.

Opponents believe same-sex marriage is a matter of judgment, needing no proof beyond a firm belief. It is no accident that so many religious believers are also opponents of same-sex marriage.

The disconnect between these two views helps explain the wealth of evidence the Olson/Boies team put on, and the relative evidentiary silence of Prop. 8's defenders. Just as no proof can determine when life begins, so (the defenders argue) no proof could possibly justify allowing marriage for members of the same sex.

A ruling favorable to same-sex marriage will certainly have repercussions similar to Roe in the short term. Californians, better than anyone, can testify to that. On this political axis, abortion and same-sex marriage do have things in common. The question is for the long-term. The error of prejudice eases over time, and I think that's observable in the culture. This makes Roe quite distinguishable. There is a difference of opinion about abortion, but no verifiable error.

I have to favor Brown as the more apt model in the Prop. 8 trial. Now that we're out of the closet, I think the evidence of our lives will make it clear how wrong the judgment is, and always has been. A ruling in our favor, while controversial among many people at first, over time will necessarily prove to have been right all along.