Jon Rauch takes a liberty with the constitutional arguments about same-sex marriage I don't think we have any more; he wants to set them aside for a moment.
We have, in fact, set them aside since they first came up explicitly in the 1970s and 80s. We've been doing nothing but setting them aside for the last thirty years. That has always been for political, not legal reasons. All of the powerful cultural misconceptions about homosexuality, embodied particularly in the criminal sodomy laws, still pervade the imaginations of the generations that grew up with them. That will inevitably affect how the constitutional arguments about full equality will be seen in the political sphere, and we have deferred to that powerful force.
But we can't set the constitutional arguments aside any more because they are front and center at an actual federal court in an actual case. The political decision about whether to raise them has been made -- for better or worse, you might say, and on that score I think Jon perfectly articulates the dilemma in his final line.
But Jon makes an assumption I think he doesn't need to make. No one can reasonably doubt that, despite its varied forms throughout history, marriage has been understood as an arrangement between one man and one woman. But for constitutional purposes, that's not the right question -- though it clearly is for the political purposes of the right. Cultures that didn't have a modern conception of sexual orientation obviously couldn't have taken into account what to do about the rights of same-sex couples. There is no bigotry in marriage laws that simply ignore a group they were unaware even existed.
But that's not the world the court is now addressing. Among the many revolutions of the 20th Century, homosexuals rejected their historical invisibility, both in the culture and in the law, and planted their feet firmly in the public world. That was an unprecedented change.
Even more important than that is the changes - under the constitution, itself - to marriage. When the Supreme Court ruled in 1965 that heterosexual married couples had a right - a constitutionally guaranteed right - to use birth control, it said something profound about the relationship between the government and individuals. The government has no legitimate business telling married couples whether they can or can't procreate, or when. That is for the couple to decide for themselves. That's what the constitution demands.
Griswold v. Connecticut recognized a changed technology of birth control, and in connection with the then emerging gay rights movement, it paved the way for the question now before the court. Whatever the history of marriage has been, what is the role of the government today with respect to same-sex couples? If procreation is not the government's business, why should the law recognize only opposite-sex couples?
Jon implies, and I agree, that California's fully equal domestic partnership law is a compromise we can live with. I think he minimizes the political calculation of Prop. 8's proponents, though, when he says the voters "gave" us those rights. The proponents knew full well that they couldn't have won in California if the initiative had taken them away. They very intentionally left the legislatively passed rights in place. That was a political choice, and a smart recognition of the many years of work we've done here to establish same-sex couples in the law.
That might be another way of saying what Jon did, but I think the emphasis is important. Domestic partnership is a political compromise that, itself, has required tremendous work. It was not the voters being benevolent in Prop. 8, it was the proponents being savvy. And that middle ground isn't always successful. Hawaii is only the most recent example where politicians view even the compromise of civil unions as too much equality.
It is that kind of politics that the equal protection clause was designed to minimize (if not entirely eliminate). Jon's political concerns are all absolutely valid ones. But we have a constitutional case now, and have to deal with that.
Setting aside the politics, is it possible for a Supreme Court decision in our favor to be the right constitutional resolution, or are we as convinced as our opponents that the constitution does not have room for this kind of equality? That is the question I am focused on. And I am concerned that if we concede the constitution, we may be conceding an important part of the politics as well.
4 Comments for “Are We Conceding The Constitution?”
posted by Tom on
I don’t know how the Perry decision will turn out.
I believe that a decision in favor of SSM, preferably narrow on “rational basis” grounds under the Equal Protection clause, is the constitutionally correct decision.
But my opinion about the the preferred outcome, like yours, Jon’s and everyone else’s, is no longer relevant. Judge Walker will make his decision, and the decision will be appealed, or not, by the lawyers and clients involved in the case. We are interested observers, and that’s all.
You can bet that Boies and Olson will be strong advocates, pushing the constitutional case to the hilt, with skill and vigor.
So don’t worry. Nobody is going to “concede the Constitution”. Those that might want to aren’t in a position to do so.
posted by DragonScorpion on
I think you were quite right to point out the Supreme Court’s decision to uphold a constitutional right to privacy for couples to use birth control and make such decisions of procreation for themselves. It set a precedent that broke down much of the argument in favor of government having a duty to seemingly reward those who reproduce and effectively punish those who do not.
It truly does beg the question, as you suggested Mr. Link, that if procreation is not the governmentâs business, why should the law recognize only opposite-sex couples? Especially considering that A) not all opposite-sex couples can or do procreate, B) not all same-sex couples are childless. In fact, many do have children in their relationship, including procreated children produced through some of the same fertility alternatives that opposite-sex couples use. So, why insist on such a formal distinction between the two? Other than to satisfy the religious beliefs of some, of course.
I think you were also quite right to point out the refusal to recognize same-sex civil unions in Hawaii. As I had commented the other day over at The Daily Beast, Dennis Arakaki, head of the Hawaii Family Forum and Hawaii Catholic Conference said, “We’re a very tolerant society, but I don’t think we’re willing to accept same-sex marriage, or as they call it, civil unions.”
It is quite clear that this isn’t a matter of same-sex opponents simply being uncomfortable with the word “marriage” applying to same-sex couples. They do not want any sort of comparisons to be made between opposite-sex and same-sex relationships. This makes the irrational prejudice of it all so clear.
I think Mr. Rauch is quite wrong. The same-sex marriage opponents in California didn’t “give” us anything in some attempt to be fair or reach equitable compromise. Indeed, the very notion that Mr. Rauch suggests was to me, as if to say that we were given something of value and we selfishly denied to take it or settle for it.
While I don’t believe we should have to settle for some alternative construct to pacify the personal discomforts of social conservatives, nor, really, do I see this alternative as a legitimate gesture by conservatives. Their efforts to keep domestic partnership laws, same-sex unions and even their continued fight to keep DOMA on the books is quite revealing as to their true motivations and their lack of wishing to concede to our needs anything.
How badly do we need a ruling from SCOTUS that same-sex couples have a constitutional right to access to civil marriage? We have over 30 constitutional amendments banning same-sex marriage to overturn… Really, nothing short of a verdict in our favor by the U.S. Supreme Court is going to accomplish this.
posted by Amicus on
Here are the proposed findings of fact (pdf for the trial.
David seems to be in section XI and Jonathan may be partly in section III and beyond.
In his book, Blankenhorn juxtaposes a “social institution” with a “private contract”, two approaches he thinks to be in irreconcilable tension, that only his definition can call people to their senses on the matter.
The truth is that marriage’s definition can easily be both, a private contract and a social institution.
Historically, one could argue, the government facilitated private, religious contracts that were also a social pact within those faith communities that originated them. The civil institution didn’t “promote” or “regulate” those things, let alone concern itself with procreation, it merely recognized them without much prejudice as to their content, in the only form that was ever presented, to facilitate their functioning across a wider society. As we learned last year, we have cultists in Texas who are ‘married’ in private, social pacts, who do not seek civil recognition of their sexual unions.
Of course, it is true that the definition of marriage in civil law has had periods in which it was far more coercive and intrusive than its composition in most states today.
But, given this functional definition of civil marriage, it is hard to understand why some believe that they are going to lose an ability in law or otherwise to promote marriage. If anything, the only ability the law ever had was merely to demarcate marriage from non-marriage. As to the promotional aspect of that, it’s defies reason how more marriage, rightly grounded, isn’t a support for all marriage versus non-marriage.
The idea that we might lose the ability to promote the well being of children, as the result of including gays, seem a non-sequitur as well. The problems related to child rearing and the possible state incentives to couples who have children – a historically recent and liberal epiphany – don’t seem to have much of anything to do with gay couples getting married. Indeed, most intuitively those problems seem related to the moral failings of bad parents and general irresponsibility (let’s not forget that most religious organizations, taking the Quakers, for instance, one has to get a social sanction or in other cases, pre-instruction – gay couples who want kids, of course, have to go through exhaustive home interview).
I suspect if the court focuses on this functional definition of marriage, rather than layering in the ontological definitions that are coming into the public square in ugly, untoward ways, that equality at law may be at hand for committed gay and lesbian couples.
posted by christina on
Can you please understand the marriage wars are far from over. But the new information proves that the mocked smooth hill is indeed a very smooth dating sites reality. Since the homosexual community has enlisted the gay church as it lackeys to sanctify what God has called abominable.
http://onlinegaydating.blogspot.com/2010/02/do-not-give-respected-to-gay-couple.html