IGF CultureWatch

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.

I wish I could agree with my IGF colleague David Link that Brown v. Board of Ed, not Roe v. Wade, should be the governing precedent in the California gay marriage lawsuit-which, to remind ouselves of the stakes, seeks to impose same-sex marriage nationwide by Supreme Court order.

Alas, I cannot.

There are issues of constitutional law which come into my thinking, but let's set those aside. The more basic point is this: Just as abortion raises a fundamental question about the definition of a human person, so gay marriage raises a fundamental question about the definition of marriage. Obviously, I believe that a same-sex union can and should be regarded as a true marriage-but that is the question before the Court. In order to conclude that the unavailability of SSM deprives gay couples of an equal right to marry, the Court must conclude that a same-sex marriage is a marriage.

In Brown, no one disputed that an integrated school was in fact a school. In Loving v. Virginia, the case which overturned bans on miscegenation, some people said an interracial marriage was unnatural or immoral, but in 1967 virtually no one said it wasn't in fact a marriage. In those instances, schools and marriage were being hijacked for the extrinsic purpose of white supremacy. It was precisely because segregationists knew that an integrated school was a school, and an interracial marriage was a marriage, and for that matter a black vote was a vote, that they were so determined to exclude blacks.

(Thought experiment: imagine suggesting to a white supremacist in 1955 that blacks and whites would go to school together, sit side by side, study the same things, be treated identically-except that what blacks were getting would be called "training" instead of "education." No segregationist would have accepted that deal.)

The California gay marriage case is different. Remember, California offered (and still offers) civil unions which are marriages in all but name. In the separate-but-equal South, the intention of segregationists was to hide the reality of discrimination behind a mask of equality. In California, the public's intention was more like the opposite: hiding the reality of equality behind a mask of discrimination. All that the people of California were asking to do was retain the traditional definition of the word "marriage." They gave us everything else.

Of course, I think the people of California were wrong. I think gay couples deserve to the designation "married" and that the arguments for denying it to them are weak. David and I agree on that.

Where we disagree is over the unwisdom, as I see it, of the Supreme Court's imposing what a majority of Americans will regard as a new definition of marriage. That could cause a backlash which I think David is too casual about when he says, in effect, "They'll get used to it." Our marriages could end up in the political crosshairs for a generation or more. To tell all of America's voters that they cannot pause to think for a while before changing the very meaning (for most of them) of marriage strikes me as judicial brinksmanship of a dangerous order.

The case thus puts me in an awful bind. I can't decide which would be worse for gay equality: winning or losing.

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.

In a recent newsletter, the National Organization for Marriage cites a new government study as evidence that gay marriage will hurt kids, because the research finds that kids suffer less abuse with married biological parents than with a single parent, a parent living with an unmarried partner, or a parent and step-parent.

They got it half right. Having two married biological parents is good for kids, and better than the alternatives the study examined. We here at IGF are all for it. But that doesn't make having, say, an unmarried mom and mom better than having a married mom and mom. As a correspondent points out:

Does NOM never, ever learn? These same figures indicate that for either two-adult family structure (both biological parents, or one biological and one step-parent) the chance of abuse to the child goes down drastically IF THE COUPLE GETS MARRIED. For the first kind of family, the risk drops 80 percent. For the second kind of family, the risk drops nearly 60 percent. Even for single biological parents, the child's risk drops by about 15 percent if that single parent finds and marries someone.

So they jump to the conclusion that if a child is living in a gay household, the way to protect the child is to NOT let the parent get married.

It would at least be consistent if they used this data to say gays (and singles and steps) shouldn't be allowed to care for kids in the first place. But that's not Maggie Gallagher's position! She acknowledges that the parenthood is OK, but is just against protecting the kids.

For years, opponents of same-sex marriage have traded on a non-sequitur: if SSM is not optimal, then it should not be legal. If you believed that, though, you would have to ban marriages that create step-families, which lots of evidence shows are not as good for kids. Thank goodness, the real world doesn't work that way.

Dale makes a good point that many minorities view the courts in heroic and almost mythic terms. But Newton's law has its legal counterpart: For every myth there is an equal and opposite counter-myth. The anti-gay right, in particular, has done a splendid job of not just de-mythifying the courts, but of delegitimizing them for "activism" on gay equality; it's seldom you will hear them utter the word "court" in the gay rights context without its now joined-at-the-hip modifier, "activist." And, in Newtonian fashion, the left responds in kind when the opportunity presents itself, as it did in the Citizens United case about corporate speech.

Both sides are now positioned for their entirely predictable frenzy on this case. So I'd like to make my usual plea that we not convict judges of politics (usually someone else's) without some kind of due process. In this case, that could be accomplished by actually reading the opinion any judge or group of judges offers.

Dale may be a bit guilty of prejudging in responding to one of the comments to his post, where he says that a very narrow ruling posited by the commenter could look "nakedly unprincipled." That is possible. It's also possible it could look entirely reasonable. Most likely, its bottom line (supporting or opposing marriage equality) will guide people to their conclusion about the judge's principles. While I'd trust Dale to make that decision at the appropriate time, I have a feeling such niceties won't bother the partisans.

Dale's skepticism, though, comes from having read previous opinions on this subject, and I think it's fair for me to disclose that I have some predispositions of my own -- in the opposite direction. To the extent the courts have been political in dealing with homosexuality, it is sometimes against gays.

The fact that we don't know what level of scrutiny sexual orientation should receive from the courts is the tip-off. The courts do - and, frankly, should - make the narrowest decisions that will decide the case before them. Courts shouldn't decide issues (and particularly constitutional issues) unless they have no other choice.

But the question of whether sexual orientation is a suspect class or not has been hanging around the federal courts since the military discrimination cases back in the 1980s. Federal opinions have nibbled around the edges of this, but have taken advantage of the military's unique factors to sidestep the question. The military's vital functions give them constitutional authority to override even fundamental rights like freedom of religion in order to carry out their duties.

For those of us not in the military, though, the question is still unresolved. Some courts have assumed without deciding that sexual orientation gets the lowest level of review. I think that comes from the politcs. Everything we know about equal protection law from the U.S. Supreme Court would and should lead to a finding that laws distinguishing among citizens based on sexual orientation are entitled to the highest level of court scrutiny.

The California Supreme Court is the only one that concluded sexual orientation is entitled to that level of review. It explicitly goes through the neutral principles courts have established for this kind of case, and I think provides a credible and persuasive analysis of each one. Compare their analysis to the dismissal given the issue by New York's highest court.

The retreat to rational basis review can be seen as a response to the heightened politics surrounding sexual orientation. On this issue, the charges of activism will come mostly from the right, and the only defense is for courts to adopt the most deferential posture possible.

But that's not what the precedents say, at least with respect to minorities who have a documented history of irrational discrimination. Laws making a group criminals (some laws still on the books into the present century) would seem to suggest that kind of history.

If this case is decided on equal protection, a responsible opinion would seem to require application of the longstanding principles of equal protection, and a conclusion of whether sexual orientation is entitled to strict scrutiny, middle-tier scrutiny, or rational basis scrutiny - with reasons stated, so those of us so inclined will be able to decide, based on the reasoning, not the result, how neutral (or not) the judge was.

As I predicted, Don't Ask, Don't Tell (DADT) is the one gay issue that has a chance of moving forward - Obama's State of the Union made no mention of pushing the Employee Non-Discrimination Act (ENDA) or repealing/modifying the Defense of Marriage Act (DOMA). What if he had moved on legal equality last year when he and his party were riding high, instead of squandering his political capital on a massive expansion of government? Spilt milk.

On DADT, conservative pundit Jim Geraghty blogs:

I'm a bit of a squish on this issue. If you told me the guy who was the best pilot and who had the best shot of putting a J-DAM bomb on the Iranian nuclear program's main facility was Harvey Fierstein, I'd say get that goatee airborne over Persian skies pronto.

But the politics of this issue are pretty clear, and so after pledging to repeal DADT and pledging and promising and promising, Obama's big step on this issue for the gay community is to say, "Now is precisely the moment for all of you red state and red district Democrats to vote to end 'don't ask, don't tell,' nine months before an election that's already looking miserable for our side." Somehow, I suspect they'll be less than fully enthusiastic.

Geraghty links to the LGBT left site AMERICAblog, which posts:

The President needs to do more than call for gays to serve openly. He needs to announce he will insert repeal language in the defense authorization bill he will submit to Congress in the next few months. Then, he needs to actually go out and round up the votes like he's doing on health care.... You will tell how serious the President is about repealing Don't Ask, Don't Tell not by a bland, fleeting mention, but by what he does to go out and get it done...

In case you'd forgotten, Barack Obama still opposes the ban on gays in the military. Here's the President tonight, in his first State of the Union speech:

This year -- this year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It's the right thing to do.

If your heart still flutters at the sound of words like this, you should really get it checked. 2009 was a squandered year for gay equality. Now 2010 starts with a pledge to "work" on the problem. It can't really be fact-checked and can't easily be broken.

David's constitutional equal-protection analysis is a respected one with a long pedigree in the Court's cases and in gay-rights legal theory. My aim is not to comment on the merits of that argument, but to make a somewhat different observation: for all the heroic feats of the Warren era and a few other decisions here and there, the federal courts have not been white knights riding in to save beleaguered minorities. As David knows well, we cannot rely on courts alone, or even on courts primarily, as a way to advance policies (or rights, if you prefer) resisted by popular majorities.

The Olson-Boies litigation is an act of faith in the heroic myth of the courts. It is faith-based litigation. Veteran court observers and litigators in gay-rights circles knew better than to act on this faith right now, which is one big reason they initially opposed the suit (another big reason is that they did not want to lose control), although they certainly share the commitment to the constitutional arguments.

Solely as a tactic to advance the cause of gay marriage, the Prop 8 litigation has offered two possible gifts. First, it might actually result in a constitutional win, giving us nationwide gay marriage decades ahead of legislative action. I doubt this will happen, even more now than when it was filed last year, for reasons I outlined yesterday.

Second, the process of litigation itself, win or lose, might educate the public about gay marriage. Through lawyers' arguments, brilliant briefs, landmark published decisions, and the live testimony of witnesses on both sides -- the sacraments and holy texts of lawyers -- the public might come to see how compelling the case for SSM is, and how thin or even hateful the opposition is. That has been the theory.

Now the theory meets fact. Other than those with committed views on SSM, nobody is paying attention to this trial. True, the pro-SSM and anti-SSM blogs are full of "coverage," which consists mostly (David excepted) of hooray- for-our-side commentary. Yesterday, while we reveled in the latest devastating analytical blows to Prop 8, its supporters were deriding the trial as a "desperate" attack on religion, which was halted by an "impenetrable roadblock" from their expert witness.

The public is oblivious to all of this. The Supreme Court precluded any possibility of a wider educative impact by stopping even limited broadcast. Now all we have is a transcript, in all its black-and-white glory. There has been no coverage of the trial on television and very little of it in major newspapers. Yesterday, the New York Times ran a three-paragraph story in the lower right-hand corner of page A13. That's been about it. Meanwhile, there's Haiti. There's healthcare. There's the ongoing meltdown of the Obama administration and the Democratic Congress. But even if these things weren't happening, something else would be sucking the oxygen out of the image-less Prop 8 trial.

At this point, the best outcome for SSM in the Prop 8 litigation might well be a loss in the Ninth Circuit. This would limit the harmful precedential effect of the case, allowing the Supreme Court to defer consideration of the constitutional claims so ably defended by David and others.

We don't need more faith-based litigation. We need to do the hard political work of persuading people that they have nothing to fear from the happiness and security of gay families. That is being done in only a very limited and indirect way in the Prop 8 trial, at potentially high cost. We need much more focus on democratic processes. Fortunately, that work has begun and is showing signs of success, both in polls and in legislatures.