IGF CultureWatch

First published April 6, 2005, in the Chicago Free Press.

Catholics around the world are mourning the death of Pope John Paul II, the man who headed their church for more than a quarter of a century. But if we were reviewing John Paul's long reign as a performance on the world stage, we would have to give him "mixed" reviews.

The surprise election of a Polish pope and the quiet support the church hierarchy in Poland gave anti-communist dissidents helped overthrow the communist government there and then in the rest of Eastern Europe. And those eventually led to the evaporation of the Soviet Union itself. Although the pope's contribution was not paramount, his moral support was important at a time when the outcome was far from certain.

But those of us who are gay or lesbian can hardly join in mourning John Paul's death. Through his doctrinal statements, his public exhortations, his ecclesiastical appointments and his intrusion into political controversies John Paul did his utmost to retard and reverse the movement for gay and lesbian equality.

In a technical sense, John Paul was a reactionary pope, seeking to reassert with renewed vigor traditional Catholic doctrines and their social policy effluvia against all efforts to rethink or reformulate core church teachings.

His outlook was decisively shaped by having spent much of his adult, clerical life in Poland under the domination of communism, a system which he - like the communists themselves - seemed to view as the fullest expression of post-Renaissance, modern philosophy. His response was to set himself firmly against virtually every expression of the Enlightenment and push back against it at every moment.

He was less interested in bringing political and economic freedom to Eastern Europe than in restoring Catholic dominance. He rejected the autonomy of civil society and promoted the legal imposition of Catholic social doctrine. He did not believe free speech and press were basic human rights, but conditional "privileges" that must not be "abused" by attacking his church.

He rejected the separation of church and state: When governments threatened to reduce subsidies and privileges long granted to the church, he said the church was being persecuted. He rejected artificial birth control even to prevent HIV transmission: Better a woman and her baby become infected than block conception. While he managed to say - 400 years after the fact - that the persecution of Galileo was a mistake, he refused to say evolution was a fact, admitting only that it was "more than a theory."

He dismissed without argument the idea of female priests, apparently believing his God would transubstantiate only for male celebrants. He promoted a prominence for Mary unknown since the Middle Ages and came close to promulgating the novel doctrine that she was "co-redemptress of the human race." He was dissuaded at the last moment.

But it was in opposing legal and social equality for gays that the pope and the bishops he commanded showed the most zeal. Around the world the Catholic hierarchy regularly opposed the repeal of sodomy laws, opposed gay non-discrimination laws and opposed government recognition of gay civil marriage and civil unions.

In European and Latin American nations where civil unions have been proposed, Catholic prelates vigorously opposed them as a threat to the family and the social structure. When governments proposed non-discrimination laws or hate crimes laws, Catholic officials claimed their religious freedom was being threatened. When Spain's social democratic government proposed a gay marriage law, the Vatican summoned the Spanish ambassador to make clear the church's adamantine opposition.

In 1986 the pope authorized a formal Vatican statement declaring that homosexuality was not a "neutral" condition, but "a more or less strong tendency ordered toward an intrinsic moral evil and thus the inclination itself must be seen as an objective disorder." Even more remarkably, the document went out of its way to observe that it was "understandable" if the advocacy of gay rights generated an increase in violence directed against gays.

When the international gay celebration World Pride 2000 was planned for Rome, the Vatican maneuvered furiously to prevent it, saying it was offensive to a city held sacred by the world's Christians. When the event was held anyway, the pope deplored its presence and repeated that homosexuality is "an objective disorder" and harmful to the family, the basis of society.

Although the Pope apologized, after a fashion, for the Catholic Church's millennia of persecution of Jews, and apologized to Africans for the role the church had in slavery, such as having owned some, the pope never apologized for or even acknowledged the persecution, torture and judicial murder of gays during the Inquisition as well as during other social purity crusades fostered by the church. It was as if those never happened.

John Paul II was the last medieval pope. Until the next one.

Not surprisingly, what the press and public most noticed about state superior court Judge Richard Kramer's opinion ordering same-sex marriage in California was - well, that it ordered same-sex marriage in California. (The decision is now on appeal.) Lost in the furor, however, was the dog that did not bark: a less controversial approach that the judge passed over and failed even to explore.

There are at least two enormously significant omissions from the opinion. While the court's reliance on Perez [a 1948 California Supreme Court decision overturning the state's ban on interracial marriage] is core to the opinion's reasoning, there is virtually no mention of the California Supreme Court's other landmark opinion relevant to this case, Gay Law Students v. Pacific Telephone and Telegraph.

In that decision, over a quarter of a century ago the state's highest court ruled for the first time that gays are specifically entitled to equal protection under Article 1, section 7(a) of the state constitution. In a case about the rights of lesbians and gay men, the lack of a citation to this longstanding key authority is remarkable, and may indicate a continuing fear, even among those like Judge Kramer who are willing to engage the issues faced by lesbians and gay men, of addressing their concerns directly, rather than through analogous law that is more settled on a high level of scrutiny, but less explicit about gay equality.

In addition, the court fails to mention the fact that there are two distinct equal protection clauses in California's constitution. Article I, section 7(a) provides that "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. . ." The second is an independent and more specific provision, found in subdivision (b): "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens."

Recognizing this distinction provides yet another way this case could have been decided - and goes to the heart of the political arguments that same-sex marriage cases now inflame. There are, in short, two ways courts have been dealing with the problem of discriminatory marriage laws - the Massachusetts model and the Vermont model - and California's equal protection clause would permit a court to take either path.

The Massachusetts model is the most politically volatile. Courts examine exclusionary marriage statutes and, doing their constitutional duty, acknowledge the rights of same-sex couples. In doing this, they exercise their longstanding and fundamental authority to counter the majoritarian prejudice against minorities by invalidating the laws that advantage the majority at the expense of the minority. This is well within the core reasons courts in this country are independent of the political branches - even if, as in California, judges are subject to regular retention elections.

However, as is well known, the bias against homosexuality is still virulent and explosive. More important, it can lead to the constitutional backlashes that now characterize this debate in many states, as well as in the current Congress. Same-sex marriage decisions spark deep and abiding anger in many people, who lash out at "activist judges" who are claimed to be "making law, not interpreting it."

The Vermont model offers a way to temper this. Baker v. State focused on the Vermont constitution's common benefits clause which, like Article 1, section 7(b) of California's constitution assures that some groups of citizens will not be given special benefits. The court in Baker ruled clearly that lesbians and gay men are entitled to equality under this constitutional provision. But rather than invalidating the law in the first instance, the court left it up to the legislature to decide how best to fulfill the promise of equal benefits. The Vermont legislature then did what legislatures do - compromised a bit by retaining opposite sex-marriage, but creating civil unions for same-sex couples.

The Massachusetts Supreme Judicial Court rejected just such a compromise in its second Opinions of the Justices, ruling that marriage and only marriage would truly be equal. That is, of course, true. But it also has very high political risks. The most obvious downside was illustrated in Hawaii, which was the first state whose high court ruled that same-sex couples were entitled to equal marriage rights. In 1993, the high court ruled that the state's marriage law violated the rights of same-sex couples. The case set off a furious debate over same-sex marriage across the country and resulted in the passage of the Defense of Marriage Act by the U.S. Congress, which allows states to refuse to recognize same-sex marriages contracted in other states.

The decision also created a backlash in Hawaii itself, where voters amended their state constitution to guarantee that same-sex couples were not, in fact, entitled to equal marriage rights. While the state subsequently passed a domestic-partnership-like law for same-sex couples, it remains the first state that amended its constitution to guarantee inequality for homosexuals.

At the very least, the failure to even examine this second section of California's equal protection clause exposes some of the dangers of the take-it-or-leave-it school of judicial decision-making in such highly combustible political contexts. While Judge Kramer's opinion is neither wrong nor unjust, it is perhaps incomplete. It is entirely possible that he would have chosen the Massachusetts model, even after having considered and rejected the Vermont option.

Judge Kramer's opinion several times includes language that a "superstructure of marriage-like benefits for same-sex couples is not remedy," and, "the State's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well." Still, a decision coming to that conclusion, which does not address at all another, quite obvious constitutional option, is certainly open to the question of why the other differing constitutional provisions were not separately examined.