Notes From Babel

First Thoughts on the Prop 8 Ruling

with 4 comments

There are many things to say about the ruling today declaring Proposition 8 to be unconstitutional.  John Eastman offers a very good overview of the legal aspects of the case here, to get you started.

At the outset, let’s look at what this lawsuit was about.  One of the plaintiffs expressed how the inability to marry his partner had made opening a joint bank account “an awkward situation.”  Another explained that the ability to marry would make her and her partner “feel included ‘in the social fabric.’”  As plaintiffs’ “social epidemiologist,” Ilan Meyer, testified, declining to extend marriage to same-sex couples “stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships.”  At 17.  Why a social epidemiologist—someone who “studies the social distribution and social determinants of health,” was opining in federal court about how a state government feels about anyone’s relationships, is beyond me.

It goes on, but as I read the ruling, I was reminded of Lee Badgett’s book, When Gay People Get Married (reviewed here), which portrayed same-sex marriage advocates as more concerned with seeking social change than securing an individual liberty or filling a personal marriage-shaped void.  Incidentally, Badgett was one of plaintiffs’ expert witnesses, whose testimony was cited frequently throughout the ruling.

As an important procedural point, Californians should be outraged at its governor and attorney general.  As named defendants in the lawsuit, not only did California’s top law enforcers fail to defend state law, Jerry Brown actually filed a brief arguing California’s law was unconstitutional.  This is a supreme dereliction of duty.  And it is no idle matter, either—because no governmental entity defended the lawsuit, appealing the decision could be problematic.

Getting to the meat of the ruling, Judge Walker decided that social scientists know better for Californians’ social institutions.  This is prevalent throughout the ruling, but I found this “fact” particularly amazing:

Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.

At 17.  Could this really be true?  Having either no female or no male parent has been “conclusively” proven to have no effect on children?  And yet, at the same time, having step-parents does have an effect?   Nor did I spot any mention of what in the world is meant by “well-adjusted,” one of those terms that, left unqualified, can mean anything and nothing at one’s convenience.

Even for social “science,” this all seems a little far flung.  (See Jim Manzi’s recent piece on the limits of social science at City Journal here.)  And yet, the court relied on this as one of its findings of fact:

Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

At 95.  Again, this is just stunning.  And I don’t think I hold myself in too high esteem to say that I think I would’ve heard about this if it were true.

Judge Walker also agreed with the plaintiffs’ witness that “the state would benefit from recognizing same-sex marriage because such marriages would provide ‘another resource for stability and social order.’”  At 15.

The court was also sympathetic to plaintiffs’ desire to reshape social institutions, holding that domestic partnerships—which offer identical benefits to same-sex couples as marriage—were not good enough:

The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage.  Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. . . .

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.

At 115-16.  And again here:

Cott explained that domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning. Peplau testified that little of the cultural esteem surrounding marriage adheres to domestic partnerships.

At 19.  This raises the question:  Why does marriage have such a special “social meaning” and “cultural esteem”?  At the very least, we know that it is not the result of lifetime-tenured federal judges and social scientists undertaking to reshape the institution.

But here is where we get to the part of the ruling I find really interesting.  At this point, it is particularly important to bear in mind that simply obtaining a majority-plus-one vote on something is not necessarily enough to pass legal muster in a constitutional democracy.  Moreover, we must be suspicious of the purpose of laws, since we all know the evils can be wrought in the name of “law.”  Instead, laws must have, at the very least, a legitimate government purpose, opposed to, say, the purpose of corporate favoritism, self-dealing, or racial discrimination.

With that in mind, consider the following passage:

When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

At 24.  First, it bears noting that the court provided scant detail how it came to the determination that Prop 8 was enacted to further a view of “moral disapprobation” towards homosexuals.

Putting that aside, I think this humble federal life-tenured servant was overzealous in his quest to purge our state of any laws that might fail to find endorsement by a panel of social scientists.  For one thing, as the court itself recognized, California does have an interest in “fostering marriage.”  At 67.  This is a critical acknowledgement, because “fostering” suggests the social, cultural, and moral significance vested in marriage.  And yet, the entire opinion is based on the premise that morality has no legitimate sway in the state’s involvement in marriage.

This underscores the trickiness of the subject matter, and why many people think the government should just get out of the business altogether.  If the People do not get a say in what their own institution means, then how can the state possibly “foster” the institution, which the court acknowledges it has a right to do?  Social institutions do not move at the same pace as empirical research, and they are not administered with clipboards and protractors.  They are a sloppy amalgam of cultural and social mores, standards, values, attitudes, and deeply held beliefs.

A century-old case out of Washington’s Supreme Court makes an interesting point about the imperfect intersection of humanity and the law.  In Everett v. Paschall, Paschall opened a sanitarium for the care of tuberculosis patients—in the middle of a residential neighborhood.   Despite the neighbors extreme discomfort at having deadly-germ-ridden patients living next to them, the trial court calmly and patiently explained that: the danger zone of the germ was only about three feet; the germ only thrives in warm darkness; the germ is destroyed by exposure to light; and there was, clinically speaking, no danger to any of the neighbors in the vicinity of the sanitarium.  Thus, the trial court denied plaintiffs’ request for an injunction.

The Supreme Court overturned this decision, however.  The Court did not disagree with any of the science—certainly, there was no real danger threatened to anyone by the operation of the sanitarium.  But the fact remained that the value of the surrounding parcels had diminished by 33 to 50%.  It could not be expected, the Court decided, that human emotions can keep up step-for-step with even well-established empirical realities:

If dread of the disease and fear induced by the proximity of the sanitarium, in fact, disturb the comfortable enjoyment of the property of the appellants, we question our right to say that the fear is unfounded or unreasonable, when it is shared by the whole public to such an extent that property values are diminished. The question is, not whether the fear is founded in science, but whether it exists; not whether it is imaginary, but whether it is real, in that it affects the movements and conduct of men. Such fears are actual, and must be recognized by the courts as other emotions of the human mind.

. . . .

In the case of Baltimore v. Fairfield Imp. Co., 87 Md. 352, 39 Atl. 1081, 40 L. R. A. 494, 67 Am. St. Rep. 344,  an injunction against placing a leper in a residence neighborhood for care and restraint was justified upon the ground that the disease produced a terror and dread in the minds of the ordinary individual. In that case, the court said: ‘Leprosy is, and always has been, universally regarded with horror and loathing. * * * The horror of its contagion is as deep-seated to-day as it was more than 2,000 years ago in Palestine. There are modern theories and opinions of medical experts that the contagion is remote and by no means dangerous; but the popular belief of its perils founded on the Biblical narrative, on the stringent provisions of the Mosaic law that show how dreadful were its ravages and how great the terror which it excited, and an almost universal sentiment, the result of a common concurrence of thought for centuries, cannot in this day be shaken or dispelled by mere scientific asservation or conjecture. It is not, in this case, so much a mere academic inquiry as to whether the disease is in fact highly or remotely contagious; but the question is whether, viewed as it is by the people generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located.’

This is why all the empirical evidence is secondary, and why the court got it wrong to assume that social science—a field devoted to observing and reporting on human nature—can presume to dictate the fate of one of society’s most fundamental institutions.  This puts the cart before the horse.  (Cleveland’s Rock and Roll Hall of Fame comes to mind here.  This $65 million public project failed to yield the civic revitalization city leaders hoped for because it wrong-headedly sought to establish culture with economic projects.)  Human social patterns and cultural institutions develop first; markets and laws respond to them.  Just so, marriage cannot be remade from the outside in by judges and psychologists.

At the end of the analysis, law must confront the reality that it is meant to govern human beings, who, while being imperfect, must still be permitted to participate in their lawmaking process if it is to have any perceived legitimacy.  Prop 8 was popularly ratified in the regular process of law by the people of California, in a good faith exercise of their civic right to define the contours of their important social institutions, and without animus to any suspect minority.

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4 Responses

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  1. […] The Perry ruling on Prop 8 offers an opportunity to test one’s understanding of the concepts of “judicial restraint” (or, conversely, “judicial activism”) and counter-majoritarianism.  Jason Kuznicki remarks that it makes no difference how many Californians voted for Prop 8 if it ultimately violates the Constitution.  As a consequence, he has little patience for those railing about the loss of the right to self-government: Unless you’re prepared to say that no referendum can ever be overturned by a judge, you’ll need to offer more than that. The United States is not and never has been a pure democracy, nor is our government one without limits. An important limit to government is fair play, which is what judges are there for. […]

  2. […] biological progenitors in a family structure firmly entrenched in our culture. As I mentioned in my article, I am familiar with the work of at least one of the “social scientists” repeatedly cited in the […]

  3. […] But the strongest argument is that even despite what the current social science academy and relatively young and shallow data set might establish, there is a centuries-old recognized presumption that marriage does in fact aid, promote, stabilize, and secure the continued procreation and child-rearing within the population.  New data—even were it actually scientific data rather than the observations of social scientists—cannot overcome a settled, centuries-old understanding.  The law does not expect that the people maintain a perfect one-to-one correlation with the latest in scientific understanding.  The “laboratory of democracy” metaphor does not apply here.  See, e.g., Everett v. Paschall, which I touched on in my initial thoughts on the Perry decision. […]

  4. […] occurred when the left took such glee in the fact that apparently no one has standing to appeal the Perry decision.  Now that both Governor Schwarzenegger and Attorney General Jerry Brown have opted not to enforce […]


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