Stephen Miller barely scratches the surface of the shift in support for same-sex marriage. While there is no doubt that full marriage equality gets more popular with each passing year, some of that support bubbles up from the marriage-lite group, which is, itself increasing.
In fact, the only segment of the population that is getting smaller with time is those who don’t want same-sex couples to have any legal recognition at all.
That fact could not be more important. Marriage is, and always has been, the simplest and most fair of all the political solutions to the problem of the law’s blindness to the existence of same-sex couples. Up until the middle of the 1980s when Berkeley and West Hollywood became the first government entities in the nation to pass laws formally and explicitly recognizing same-sex couples, same sex relationships were invisible in the law, and to most people incomprehensible. Domestic partnerships, reciprocal beneficiaries, civil unions and other separate but (roughly) equal relationship categories are political compromises.
I don’t prefer compromises, but what I like less is the status quo (in most states) where same-sex couples have no legal rights at all. That’s why I’ve been supportive of marriage-lite for about twenty-five years. Marriage is (as conservatives say), the ideal I think we should fight for, but when the chips are down, sometimes it’s better to settle for something rather than nothing. A whole lot of people just don’t like the idea of homosexuals existing, much less having the government acknowledge their sinfulness and lack of good breeding.
But the ranks of people who think that way are thinning. It is harder and harder to dismiss a homosexual coworker, family member, politician or even a popular celebrity from television, movies or sports, as some kind of heterosexual-gone-astray. Even the Republicans, a party whose brand includes resistance to any rights for homosexuals, are beginning to see the façade of homophobia developing cracks. If you believe there really are people who are homosexual, does it make any kind of sense to think they won’t fall in love with someone, won’t want to share their lives with someone, maybe raise children together? Is that so terrible?
A large majority of heterosexuals don’t think so. And compromise is the least the law can do.
But does the constitution’s equal protection clause permit compromise? Is equality a negotiable promise? That is the question at the heart of the Prop. 8 case.
Ideologically, I think not. But constitutional opinions, with all their pages of reasoning, are seldom free of wiggle room. Even the most absolute-sounding of constitutional rights (“Congress shall make no law . . . abridging the freedom of speech. . . “) have footnotes and disclaimers. Federal judges are theoretically independent of the political realm, but they all breathe the same air we do.
As I said in an earlier post, Ken Mehlman and Karl Rove took most of our political options away when they urged states to amend their constitutions to prohibit same-sex marriage and, in many cases, any other legal recognition of same-sex couples. That political decision prematurely forced the issue into the federal courts, because that is the proper forum for a determination of whether a state constitution violates the federal charter. They could have made their crusade less consequential if they’d deployed their torches and pitchforks on statutory prohibitions, but it was constitutions they decided on, so it’s now fully a federal issue.
That leaves compromise in the hands of federal judges. And despite the doomsayers, there are ways for federal judges to effect compromise. The most effective is stalling. The Ninth Circuit could both uphold and overturn Judge Walker’s opinion, saying that same-sex couples are entitled to equal protection, but that there is an inadequate record in the case on whether domestic partnership is fully and constitutionally equal to marriage. This is certainly a question that came up at trial, but as I mentioned, judges can sashay with the best of the politicians if they need to. It’s a bit unseemly, but you’d be surprised what contortions black robes can conceal.
Californians were not voting on a compromise proposal; Prop. 8 was about full marriage rights. It did not affect domestic partnership, and if it had removed that compromise, it is extremely unlikely it would ever have passed. That political fact will inform any decision from the federal courts. No matter what the court decides, it is extremely unlikely that we will get a lowest-common-denominator opinion. It is no small majority any more who think that same-sex couples are entitled to no rights at all. Even the most politically immunized judge will not be ignorant of that fact.
Nor will he or she be insensitive to the fact that it was not lesbians and gay men who abandoned the political process, but very high ranking Republican politicians who chose, in their wisdom, to throw this political hot potato into the federal courts.
8 Comments for “Wheeling and Dealing”
posted by Throbert McGee on
Baloney.
Prop 8 was purely about the symbolism of the word “marriage,” because all the legal shortcomings of California’s “domestic partnership registry” — the lack of portability to other states, and the non-recognition by the federal government — were also true of California’s “same-sex marriages”.
posted by Throbert McGee on
Speaking of words and their symbolism:
In the (admittedly unlikely) event that state governments nationwide followed the recommendation of some libertarians and got out of the “civil marriage” business entirely, replacing it with “civil unions for EVERYBODY” while leaving “marriage” to churches, would David Link still disparage civil unions as something “lite” and less-than-ideal?
posted by Jorge on
Sandra Day O’Conner’s “The Majesty of the Law” has quite a few examples of judges being politically shrewd while they’re throwing their weight around. Perhaps the best example is former Chief Justice William H. Taft.
Pun intended. Forgive me!
But does the constitution’s equal protection clause permit compromise? Is equality a negotiable promise? That is the question at the heart of the Prop. 8 case.
I think the question at the heart of the Prop. 8 case is whether banning the recognition of gay marriages violates the Constitution.
posted by John D on
Throbert brings up the lack of portability issue. My marriage (to a same-sex spouse) is recognized in at least seven states and the District of Columbia (New York will not license same-sex marriages, but recognizes those from other jurisdictions). A California domestic partnership? They used to be considered equivalent to a New Hampshire civil union, but now New Hampshire allows same-sex couples to marry. Goodbye civil unions.
Currently, domestic partnerships are less transportable than a same-sex marriage.
posted by John Howard on
Same-sex couples shouldn’t have the same right to procreate that all married couples should have, so there is the distinction that makes Civil Unions possible and portable. The government is still needed to prohibit unethical procreation, whether it is between siblings or people of the same sex, and the government should continue to approve and support and protect couples that are allowed to procreate together with marriage. But it can give all the same other protections in the form of state Civil Unions defined as “marriage minus conception rights” which could be enacted in all 50 states almost immediately (Texas would need to remove their amendment first). Those CU’s would be very portable, since every state would treat them exactly like they treat marriages for all matters except protecting their right to combine their own genes.
David Link is right that the status quo is unacceptable for everyone. I’ve got the best idea to get us beyond it and get equal protections for same-sex couples, and all anyone would give up is the name marriage and the right to do something that can’t even be done anyway. It is hard to understand why people choose to keep thousands of same-sex couples unprotected and make life so difficult for so many people.
posted by John D on
John Howard,
You’re wrong in oh so many ways.
There is nothing that makes civil unions portable. They simply aren’t. There is an ongoing claim that gay people could get civil unions with ease. In most cases, civil unions have been described as “too close to marriage.” This could not be done quickly anywhere. It’s not just Texas; several states have laws or constitutional amendments prohibiting anything close to a civil union. Calling it “marriage minus conception rights” would not help in these places.
The government does nothing to prohibit unethical procreation. Even though siblings cannot marry, if a woman became pregnant from a male relative and wanted to keep the baby, she could. Some prevention. Nor may the government snoop into our affair (literally) to see who is transgressing sexual ethics for a mandatory dose of birth control.
You are the one person who believes that getting same-sex civil unions would be easy if only same-sex couples gave up procreation rights. I can explain, however, why people “choose to keep thousands of same-sex couples unprotected.” You answered it yourself; they want to “make life so difficult for so many people.”
You’re probably unique among the opponents of same-sex marriage. Most of them seek to punish gay people. Gay people aren’t even faking heterosexuality. They want gay people to “close our eyes and think of the country.” But we’re not doing that. Further, they see our relationships as evil, perhaps something with malign consequences for all (what if God decides to smite the nation, after all?). In their view, gay people put everyone at risk. And they want rights as well?
posted by John Howard on
There is nothing that makes civil unions portable. They simply aren’t. There is an ongoing claim that gay people could get civil unions with ease. In most cases, civil unions have been described as “too close to marriage.” This could not be done quickly anywhere. It’s not just Texas; several states have laws or constitutional amendments prohibiting anything close to a civil union. Calling it “marriage minus conception rights” would not help in these places.
These ones would be portable because they would all be defined by the states as marriage, with the only difference being that they wouldn’t allow the couple to combine their own genes to procreate children together. So on every other legal question, they would be treated exactly like the state treats marriages, by definition, and all other states would share the same definition. The definition would be dictated by the federal law that recognizes CU’s only if they are defined by states as “marriage minus conception rights.” Thus states wouldn’t have to bother figuring out how to define them or treat them in law, they’d have to treat them just like marriage, with the exception that they wouldn’t let them conceive children together from their own genes.
And that would be a substantial difference in rights, CU’s most certainly wouldn’t be substantially similar or equivalent in rights, since the Compromise would also affirm existing law that marriage protected the couple’s right to use their own genes to conceive children and no state could prohibit any married couples from procreating together. So they could be enacted in every state but Texas, because most amendments only prohibit CU’s that are substantially similar or offer the rights of marriage, and these wouldn’t. The right they wouldn’t offer is the essential right of marriage, all the other rights and benefits are ancillary to that.
The government does nothing to prohibit unethical procreation. Even though siblings cannot marry, if a woman became pregnant from a male relative and wanted to keep the baby, she could. Some prevention.
Hmm, I don’t think so. I guess it’s up to the judge, but I think usually the baby is taken away to be adopted and the couple goes to jail or are otherwise separated. Maybe if it was a case of rape the woman is allowed to raise the child sometimes, but it’s not something people are allowed to do. They get punished.
Nor may the government snoop into our affair (literally) to see who is transgressing sexual ethics for a mandatory dose of birth control.
True, but if the government finds out it can enforce the law, and it can certainly prohibit people from doing it even if it can’t intrude on their privacy to enforce it. It gets enforced by the people themselves. And prohibiting siblings from procreating means prohibiting them from having sex (and vice versa) so there is no need for mandatory birth control.
posted by Amicus on
If there is a palpable shift going on, just a caution: don’t expect high-fives from the gay ‘ol Left.
Riding in with a change in “policy” and monetary donations at the crest of the change in public opinion on an issue, doesn’t look like leadership or moral commitment, it looks like electioneering or worse.