Equality With an Asterisk

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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 The Chief Justice immediately asked Minter whether his position was that any of these parts of the ruling were superseded by Prop. 8.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.

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Marriage Revisionism

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On March 5, the California Supreme Court heard arguments about whether Proposition 8, which banned same-sex marriage in the state, is valid. Even if you oppose gay marriage, and even if (like me) you support it but question last May's decision declaring a right to it, there's good reason to invalidate Prop 8. That's because the root issue in the case is deeper than same-sex marriage. It goes to the heart of what it means to live in a democratic polity whose decisions are both substantively and procedurally bounded by a constitution.

The California Constitution recognizes two types of changes: "revisions" and "amendments." A "revision" can be enacted only through approval by two-thirds of each state house, followed by a majority vote of the people. "Amendments" can be enacted by simple majority vote of the people, without prior legislative approval. The harder process to enact a revision suggests that it is reserved for extraordinary matters requiring more deliberation and social consensus than an ordinary amendment. If Prop 8 was actually a revision, it cheated the constitutional design by going through the comparatively easy amendment process.

So which is it? The California state constitution itself tells us nothing about which route must be followed for a particular proposed change. The distinction between revision and amendment is rare in state constitutions, and completely foreign to the U.S. Constitution.

History offers little guidance. The easier amendment route was created in the early 20th century as a populist, progressive reform to combat the power of wealthy corporate interests over the California legislature. Whatever else can be said of them, neither side in the gay-marriage debate is controlled by robber barons. While the people obviously wanted a method of constitutional change that avoided the legislature, it's equally obvious that some changes still require prior legislative approval.

The court's own precedents don't directly answer the question. In the past, the California Supreme Court has said that a proposed change can be so voluminous that it requires the more laborious revision process. Prop 8 added only 14 words to the state constitution.

The court has also said that a change can be so "qualitatively" significant that it constitutes a revision. A proposal to instruct the state legislature how much to spend annually on environmental protection is an amendment. But a proposal to limit the ability of the state courts to protect multiple rights of criminal defendants was held to be a revision. Prop 8 dealt only with defining marriage, which is certainly important, but leaves intact California's extensive gay-rights laws, including its comprehensive recognition of same-sex domestic partnerships.

So past cases have labeled changes "revisions" if they are voluminous or alter the basic structure of state government, including the court's own role in monitoring the protection of a broad swath of rights. But if the underlying concern is that some changes should require more deliberation and consensus, why limit the analysis to those narrow instances?

Critics will say that overturning Prop 8 would be unprecedented. And they're right. But that is only because Prop 8 itself is unprecedented in California - or in any other state. To see why, forget about same-sex marriage for a moment.

Suppose a majority of the people decide that Mormons are exercising disproportionate influence in the political system. So they change the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights.

Or suppose a majority of the people decide too many blacks aren't taking marriage seriously. So they vote to deny blacks, and blacks alone, the right to marry. Putting aside the questionable validity of such changes under the federal constitution, would they be "amendments" or "revisions" to the California Constitution?

Back to Prop 8. Under the California Supreme Court's marriage decision, marriage is as fundamental for gays as it is for blacks and as important for them as political speech is for Mormons. Additionally, discrimination against gays is as judicially questionable as it would be against racial or religious minorities.

There are solid reasons to think last May's decision was judicial overreach. But unless the decision is reversed, which is unlikely, the conscientious constitutional objector is left to consider the larger implications of allowing a fundamental right to be stripped from a vulnerable minority.

Even rights that the objector agrees are fundamental could be taken away, and even groups that he agrees need special judicial protection could be assaulted, in a future constitutional amendment, by a simple majority. If it's acceptable in this case, it should be acceptable in future ones.

Neither side doubts that courts are empowered to determine whether a change is a revision or an amendment. When in doubt, perhaps the court should follow the "will of the people," as legal supporters of Prop 8 argue.

But which "will"? The will expressed by any simple majority at any given time on any issue of sufficient brevity or discreteness? Or the enduring will expressed by the people themselves in their constitution, as interpreted by their courts, requiring extraordinary procedures for extraordinary changes targeting three percent of the population?

Gay marriage can be banned in a revision to the state constitution. After all, the people are entitled to govern themselves. But only under the rules they have enacted. And the best understanding of those rules suggests they were violated by Prop 8.

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Hello, Cruel World

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This is a good time to take stock of the threats faced by LGBT people around the world. That's because on Feb. 25, the State Department released its Country Reports on Human Rights Practices for 2008. The Council for Global Equality a day later released its extract of sexual orientation and gender identity references for 190 countries. That and a list of "Top Ten Opportunities for the U.S. to Respond" are at www.globalequality.org. The dishonor roll includes Egypt, the Gambia, Honduras, India, Jamaica, Kuwait, Kyrgyz Republic, Lithuania, Nigeria, and Uganda.

The Council notes that many of the worst anti-gay abuses were committed by American allies, "including those that receive sizeable U.S. development or security assistance." Egypt was the third largest recipient of aid from the State Department and the U.S. Agency for International Development in 2008, while Uganda is a leading recipient of PEPFAR funding for prevention and treatment of HIV/AIDS. The Council believes that "the State Department must move beyond a reporting agenda to an affirmative 'protection agenda' that actively seeks to redress these serious and ongoing human rights violations."

There were plenty of abuses outside the "top ten," according to the documents. In Russia: "On June 1, gay pride activist Alexey Davydov was assaulted while addressing reporters at the Moscow Gay Pride event." In the Netherlands: The U.N. High Commissioner for Refugees "raised cases in which protection from return to unsafe countries appeared to have been violated..." In Cameroon (where homosexual activity can bring sentences of up to five years in prison): "homosexuals suffered from harassment and extortion by law enforcement officials." In the Bahamas: "In 2006 the Constitutional Review Commission found that sexual orientation did not deserve protection against discrimination."

One grim lesson the reports teach is that the sun never sets on anti-gay laws stemming from the British colonial era. Countries from Brunei to Zambia continue to criminalize acts "against the order of nature," despite England's having decriminalized homosexual acts in 1967. Human Rights Watch observed in December that, "the model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection."

Gay rights groups were among the Non-Governmental Organizations (NGOs) that pressed efforts in many countries despite grave risks. They included the Blue Diamond Society in Nepal; Sangama in Bangalore, India; ACCEPT in Romania; Gemini in Bulgaria; and Rainbow Project in Namibia. NGO representatives were assaulted in Jamaica, Honduras, Croatia, Uganda, and India.

Prejudice and violence persist even in countries that have made great strides. For example, in South Africa, which legalized same-sex marriage in 2006, a Social Attitudes Survey by the Human Sciences Research Council found that homosexuality was widely considered "unAfrican" and gay sex was opposed by 80 percent of respondents. Also in South Africa, four men were charged with the rape and murder of lesbian activist and former soccer player Eudy Simelane east of Johannesburg. No arrests were made in the July 2007 murders of a lesbian couple in Soweto and a lesbian in KwaZulu-Natal.

There was some good news. Argentina's National Social Security Administration granted widowed same-sex partners inheritance rights to their partner's pension. Turkey's Supreme Court of Appeals on Nov. 28 overturned an Istanbul court ruling which had cited Turkish "moral values and family structure" in shutting down Lambda Istanbul, the country's oldest LGBT organization. The Lithuanian government paid 40,000 euros to a transsexual woman after the European Court of Human Rights ruled her privacy rights had been violated.

The reports for Iceland, Denmark, Sweden and the Netherlands mention their gay-inclusive laws against hate speech. These laws are double-edged swords, because they tend to blur the distinction between mere disagreeable speech and incitement to violence. Denmark's prohibition of blasphemy could place gay rights advocates afoul of the law if they mount a public response to, say, Islamist homophobia. Indeed, one cannot write about European trends in Islamist anti-gay intolerance without being called Islamophobic by gay leftists. But there is no safety in silence.

The State Department reports for 2008, while gathered during the Bush Administration, have a preface by Secretary of State Hillary Rodham Clinton. This underscores the continuity provided by the career foreign service officers who do most of the work. May their efforts continue and expand.

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Common Ground?

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There is something very satisfying about ideological purity and the righteous indignation that often accompanies it. It can be fun to paint one's opponents as crazy and stupid (and sometimes they make it all too easy to do so).

Less fun, yet potentially more productive, are attempts at common ground. As much as I enjoy a good zinger, I'm a conciliator by nature. And so I was intrigued by a recent proposal by Jonathan Rauch and David Blankenhorn seeking compromise on same-sex marriage.

Rauch is one of gay marriage's sharpest defenders; Blankenhorn, one of its ablest critics. The two have clashed on multiple occasions. If I had to recommend only two books on this subject, one from each side, they would be Rauch's and Blankenhorn's.

In last Sunday's New York Times, the pair co-authored a surprising proposal. The crux is this:

"Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will."

Currently, various states offer some sort of legal recognition to same-sex couples. The idea would be to provide federal recognition to these arrangements while allaying opponents' fears that doing so would erode their religious liberty.

So under the proposal, no church would have to rent out its parish hall for a lesbian wedding; no religious college would have to provide married student housing to a gay couple, and so on. Any state that insisted on such requirements would be ineligible for federal civil union recognition.

Let's be clear on what the proposal would NOT do. It would not create legal statuses for same-sex couples in states that did not already have them.

It would not prevent gay-rights advocates from continuing to press for full marriage rights, or gay-rights opponents from continuing to make the case against them.

Nor would it "downgrade" Massachusetts and Connecticut same-sex marriages to civil unions. States would continue to recognize same-sex relationships in whatever ways they choose-as long as they don't require religious organizations to do so. But the federal government, which currently recognizes NONE of these statuses, would recognize them all under the common name "civil unions."

What the proposal would do is allow the federal government to say, "If your state recognizes you as a couple, so do we." It thus takes federalism seriously, with the federal government deferring to the states on the issue of who's legally united-as it usually does.

The proposal has already generated a good bit of discussion in the blogosphere. Some of it simply misunderstands the proposal; much of it-not surprisingly-is critical.

Certainly, the proposal deserves a rigorous discussion from all sides. In order for that discussion to be more productive, I'd like humbly to suggest some guidelines:

Rule #1: Do not criticize the proposal by saying, "The other side is not going to like it because…" Let the other side speak for the other side.

Rule #2: Do not respond to an admirable attempt at peaceful negotiation by immediately ratcheting up the rhetoric. For example, at the National Review Online Maggie Gallagher writes, "From where I stand, it looks like the progressive/democrat position states: If you believe marriage means a husband and wife, you are not just wrong, you are downright wicked and deserve to have your home address put up on the internet so strangers can harass you."

Oy. That violates Rule #1 and Rule #2-in one sentence!

Nobody doubts that there has been excessive rhetoric on both sides. There are advocates who claim that anyone who opposes marriage equality is a hateful bigot; there are opponents who hold that gays by their very existence offend God.

But thankfully, there are also those like Blankenhorn and Rauch who are interested in moving us past such conversation-stoppers. Let's take the cue.

Rule #3: If you don't like the proposal, suggest a better idea.

Note: "Give us full marriage equality!" is not what I mean by a better idea. Sure, that's what would happen in my ideal world. Rauch's too. And no one is saying that we should stop making the case for it.

But in the meantime, there's a proposal on the table that would provide federal rights and benefits to those in state-issued same-sex unions. Moreover, it's a proposal that one major same-sex marriage opponent has endorsed.

I don't doubt that the proposal prompts some legitimate concerns on both sides. But if we can discuss those concerns with the same spirit of cooperation that Blankenhorn and Rauch have demonstrated, we might actually make some progress.

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Shaping the Battlefield

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Here's a TV ad called "Hope," from the Equality California people, who are already preparing for a rematch on marriage. And here's why I think it's potentially important.

I talked the other day with a California-based political consultant who explained that the problem we faced with Proposition 8, and other anti-gay-marriage ballot fights, is that short-term tactics and long-term strategy work at cross purposes. In the short term, the election outcome is decided by a narrow group of swing voters, and these folks are turned off by appeals that feature gay people or gay couples (especially with kids). But running vague, de-gayed ads that appeal to this group means we never make the positive case for marriage, which is the key to moving public opinion and mobilizing support in the longer run.

The answer? The time to educate the public on gay people and families is when we are not fighting a ballot initiative. Now, in other words.

Raising dollars for strategic advertising outside the context of a political campaign can't be easy, especially in a huge media market like California's. Whether EQCA's campaign is affordable or sustainable is an open question. But the good news is that we are learning. And our strategic message, with its appeal to love and commitment and inclusion in the American dream and of course fairness, is a formidable weapon, when unholstered.

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Punch Lines

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Stephen Miller's post links to a CPAC video discussion of same-sex marriage that deserves some comment.

One of the classic uses of humor is to release tension, and the discussion shows that even conservatives who want to address the question of gay marriage seriously are still uncomfortable with the subject and need a bit of comic relief. The results are revealing.

The first speaker, Scott Ott, tries to diminish gay marriage arguments he finds fatuous, mentioning hospital visitation rights. He dismisses this is a real argument, saying he's been to a lot of hospitals, and no one's ever asked him if he's "having sex with a sick person."

That got a big laugh, and I'm sure he's correct. But it entirely misses the point. Hospitals frequently have special rules permitting greater visitation rights for family members than others, for example outside of normal visiting hours, or in intensive care units where non-family members are not permitted. It would be the rare spouse who would be refused these small mercies. But because same-sex couples cannot get married, more than a few of them have, in fact, been told they cannot see their partner, the reason being that they are not a member of his or her family. More and more hospitals have seen the cruelty such a policy imposes on someone who's obviously grief-stricken, as any loved one would be in a hospital, and have taken a more common sense approach.

Ott's dismissal of this as a problem is a cheap shot, and does him no justice if, as other parts of his comments suggest, he wants to be viewed as fair-minded in this debate. Anyone who does not understand how the lack of any recognized family status could be a problem for same sex couples who cannot marry is not thinking very hard about the other side.

Later in the discussion, Instapundit's Glenn Reynolds says his ideal world is one where "happily married gay couples have closets full of assault weapons." This, too, got a huge laugh. It's a fine line, and pretty welcome around these parts.

It is, however, the prelude to a dream, and Reynolds then moves on to his position that the state should recognize all willing couples as civil unions, and leave marriage up to the churches.

There are several people I respect who take this principled ideological position. But to those of us toiling in the real political world, it looks like a way of avoiding the question, which is what to do about the laws we have in the world we live in. I am glad to have whatever rhetorical support we can get from conservatives like Reynolds. But the rubber does sometimes meet the road, and as a thoughtful and often contrarian conservative, Reynolds must know that more of us want to get happily married under existing laws (with or without closets full of assault weapons) than want the state to stop recognizing marriages of any kind.

I'd rather hold him to his punch line than to his serious proposal. But the punch line, I'm afraid, is just that.

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The Conservative Divide

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Some Democrats in Congress may soon press for repeal of the military "don't ask, don't tell" gay ban, an issue that Obama would rather not come up, suggests The Politico. But some anti-gay activists are eager to take it on, thinking it will be a winner for them. They might want to consider what a straw poll of 1,750 conservatives (of whom nearly 60% were college age) at last weekend's CPAC confab in the nation's capital showed. Look what issue least motivates them. (Okay, if you don't want to open the nifty PowerPoint, the answer is: only 1% indicated "letting gays serve openly in the military" was the Democrats' initiative they most feared, whereas "expanding government with new spending programs" was #1, with 36%).

Also at CPAC, a panel sponsored by PajamasTV looked at finding common ground, including the question Marriage? Civil Unions? Is There a Compromise? (click on the link and keep scrolling, using the orange arrow way over on the right, to find this segment, and then click on the title). Glenn Reynolds, blogger at InstaPundit.com, said his ideal world is one in which "happily married gay couples have closets full of assault weapons." (Hat tip: Rick Sincere)

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Rules of the Game

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This Thursday, California's Supreme Court will hear oral arguments on the validity of Prop. 8. Nicholas Goldberg has a good summary of the arguments at the LA Times.

I'll only add one thought here, which will set me apart from every spokesman, reporter, advocate and innocent bystander. The Supreme Court's decision (when it comes -- under court rules the justices have 90 days after oral argument to issue an opinion) will not be a ruling in favor of or against either side.

The court will decide some very important constitutional issues: What is the scope of a constitutional "revision" as opposed to an "amendment?" Is constitutional equality an inalienable right in California that requires more than just majority voter approval? Does Prop. 8 apply retrospectively to the marriages contracted prior to the amendment's passage?

But the answers to these questions will not amount to a judgment by the court on the moral, legal or social appropriateness of same-sex marriage, or on the wisdom of the majority who passed Prop. 8. The court has already said that the constitution, prior to its amendment, protected marriage as a fundamental right for all Californians, including homosexuals, and that its equal protection clause guaranteed the right of homosexuals to marry the person of their own choice, even if that person is not of the opposite sex.

The question before them now is whether a majority can amend the constitution, itself, to withdraw those rights. That is one of the hardest decisions any court in a constitutional democracy will ever have to make.

While it is a matter of political cliché to assume that judges act in bad faith and on their personal whims - and there is certainly evidence that some judges in this country are guided by their political beliefs - I challenge anyone of good will to provide evidence that the justices of California's Supreme Court engage in that kind of abuse of power. Let me say for the record that I have followed this court very closely for a couple of decades now, and I believe its present justices are among the most apolitical I have ever seen.

The questions before them are impossibly hard to answer. But they are structural questions about the fundamental rules of the democracy. The answers the court provides will not be a "victory" for gays or for religious believers. They will do no more than guide Californians in taking our next steps.

This will come as a shock to the perpetually shockable, but this ruling like the court's last ruling on marriage, will not end the debate.

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Sisters?

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I'd like to expand on some of the comments to Jon's post.

The authors of this proposal do not accept the premise of gay marriage because it is inconceivable that the category of "marriage" could include same-sex couples. Anyone who even thinks such a thing is a "revisionist" rather than a "traditionalist." Marriage simply is "a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child."

The compromise, then, is to create a new legal category entirely for same-sex couples, but one that includes any other couples who are not a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child. Revisionists would leave the category of marriage alone, and obtain their rights as a couple under the law through inclusion in this new grouping.

In commenting on Jon's post, esurience says this lumps gay relationships with incest and platonic relationships. Rob chimes in that this "seriously debases same-sex relationships to the level of friendships and blood relations."

I couldn't agree more. The question is whether committed, adult same-sex relationships are more like aging sisters who share a home or an opposite-sex married couple.

The authors of this proposal are quite honest that they find it impossible to view same-sex couples in the category of marriage. But if these are the two categories offered: aging sisters or married couples, I'm betting more Americans who don't already have an opinion, would view same-sex couples as more like the married couples than the sisters. With apologies to the traditionalists, the days when a majority of Americans simply closed their eyes to the loving - and sexual - relationships of same-sex couples are coming to an end.

There is no need to go so far out of our way to invent an entirely new category of relationship whose only point seems to be to grant same-sex couples some kind of rights while not acknowledging them in law as same-sex couples. The attempt - with its obvious administrative knots and hurdles, not to mention its unnecessary costs to both government and business - is a relic of a time gone by, with an appeal only to those who continue to think Don't Ask, Don't Tell is a good idea. The nation is talking about same-sex marriage not only because gays have asked, but because Americans are willing and ready.

The problem with this proposal is not that it is not a compromise - it clearly is - but that it misses the point of the conversation everybody else is having.

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Another Marriage Compromise Emerges

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Here's another gay-marriage compromise proposal. David Blankenhorn and I proposed one last weekend, and I'm heartened by the broad discussion it has engendered. I'm even more heartened by the emergence of a second, quite different, approach.

The authors, Ryan T. Anderson and Sherif Girgis, propose creating a federal civil-union status that would be open to all couples who can't legally marry-including couples, such as sisters, who can't legally have a sexual relationship. That way, the government would continue to formally recognize only one kind of sexual union, man-woman marriage. In exchange, "revisionists" (gay-marriage supporters) would agree to live with the Defense of Marriage Act, which says that the federal government will recognize only man-woman couples as marriage.

So we'd go from today's world, where one side demands full marriage rights and the other side rejects even minimal recognition of gay couples, to a world where same-sex couples got federal civil unions-which they'd have to share with a few nuns and aging sisters-but gays agreed not to ask for more from Washington. States, presumably, could continue to tussle over gay marriage, but the federal debate would be over.

There's much to think about here, but one practical question strikes me as a likely show-stopper: How could any agreement not to pursue changes in DOMA bind future activists and politicians? A gentlemen's agreement wouldn't be enforceable, and a constitutional amendment would be both difficult as a political matter and unacceptable to SSM advocates, who will see it as writing inequality into the Constitution-the nuclear option, from our point of view.

That's just a first-blush reaction, though. I think the most important thing about Anderson-Girgis is its willingness to reach out and try to do something for same-sex couples, as well as something to mitigate the culture wars. It should be welcomed by SSM advocates as a good-faith gesture, and it deserves to be broadly and respectfully discussed. And it's another sign that maybe, just maybe, the ice is beginning to thaw around the frozen gay-marriage debate.

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