Archive for the ‘Gay Marriage’ Category
A whole bunch of blogs have been touting this Washington Post/ABC News poll—claiming that “support for gay marriage has grown to 53 percent today”—as a sign that Americans have now embraced “marriage equality.” Putting aside for purposes of this post the question of same-sex marriage itself, that commentators are claiming a victory for “marriage equality” generally should give pause. Indeed, this has become the accepted term for rhetorical engagement on the issue, simply for the reason that “equality” has such great purchase on the American political soul. Most Americans are reflexively in favor of the concept of equality because the word is so commonly coupled in political and historical discourse with “racial,” or “religious,” or “political.” Those campaigns for equality concern egregious historical abuses concerning the most fundamental of rights, which abuses were extinguished only at great cost. It is good and right that we exalt concept, such as equality, as overarching symbols of the American political order; such symbols serve as a means of expressing our hard-fought fundamental values as a people, and of forefending threats that might still be lodged against them.
Beyond a few relatively narrow areas, however, “equality” as a political symbol bears little application to “equality” as a legal standard. No one seriously believes, for example, that doctors and janitors are entitled to equal pay, that Best Buy and Circuit City are entitled to equal market share, or that the Yankees and the Red Sox are entitled to an equal number of World Series championships. On these questions, we expect and demand protection of unequal results corresponding to the input of unequal talents and efforts.
We also demand inequality on other types of questions—e.g., who is qualified for employment as a police officer or a fire fighter; who is allowed to drink alcohol; whether gardeners and nuclear power plant operators should be equally regulated. When it comes to such questions concerning the public health and welfare, the equality principle is significantly circumscribed.
Equality, then, is a strange concept, as it at once guarantees and threatens liberty depending on the subject matter. There is no doubt that liberty cannot endure when, for example, racial minorities are arbitrarily deprived of protection of fundamental rights. But neither can there be any serious doubt that liberty cannot endure when everyone is deprived of protection of fundamental rights so that an equal menu of positive rights can be offered up in exchange. Thus, the way in which some individuals are deprived of personal, political, economic, and property rights in order to promote social and economic equality poses a substantial threat to classical liberty generally. Similarly, it cannot be seriously doubted that the state cannot serve its necessary function to protect the public health and safety if it must yield in all cases to a mandate of absolute equality. Equality, then, is a lancet, not a sledgehammer.
Advocacy of a general notion of “marriage equality” poses its own kind of threat: It incites us to demand urgent remediation of a perceived injustice, yet provides no guidance for evaluating the nature of the purported injustice, or why similar instances of social inequality should not also be subsumed in the demand. The Religion News Blog, for instance, recently reported that a Canadian civil rights group “has filed a final argument in B.C. Supreme Court against [Canada’s] polygamy law, saying it is a Victorian-era statute that should be ‘relegated to the scrap heap of history.’” Similarly, Andrew Sullivan recently passed along this story reporting that Switzerland is considering abolishing its “obsolete” laws criminalizing incest. Matthew Franck likewise has argued that the U.S. is already surprisingly close to announcing “a constitutional right to incest.” Most advocates of “marriage equality,” of course, have no intention of supporting these reforms. But why shouldn’t the same symbol of equality, conscripted into advocacy of same-sex marriage, also compel equality for these other types of social arrangements? Is there not something irresponsible and perhaps deceptive about demanding “marriage equality for all” if what is really meant is something other than “equality” and something less than “all”?
I’ve argued previously that were same-sex marriage judicially imposed, there would be no logical stopping point before judicially obliterating all morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on. On that basis, I’ve concluded that this question must be decided by the normal democratic process, who are not limited by strict logical application of legal principle. The “marriage equality” rhetoric, however, compromises that process by putting voters to a false choice by insisting on strict adherence to the equality principle. In other words, it is a distinct possibility that many Americans have changed their attitude about same-sex marriage based on an implicit threat that, if they don’t, they will be branded as enemies of equality and share space in the pages of history with racial bigots and merciless dictators. Same-sex marriage advocates’ ubiquitous citation to the inapposite racial discrimination case of Loving v. Virginia, for example, makes this threat unmistakable.
Members of a democratic society must live with the duly expressed choice of the majority on social questions like those concerning the social institution of marriage. It is disconcerting that consensus is quite conceivably being achieved by confusion, misconstruction, or misrepresentation concerning the fundamental symbol of equality and thus putting voters to a false choice between their political and social values. Same-sex marriage advocates neglect to correct this misunderstanding since it works in their favor. The resulting false pretense in the political discourse concerning same-sex marriage is quite possibly responsible, in some measure, for the increased likelihood that Americans will tell pollsters same-sex marriage should be legal.
In September, Daily Caller ran my op-ed, “Why Kennedy Might Not Take the Bait in Perry v. Schwarzenegger.” Since it was an op-ed, however, I had to cut a good deal from the piece. In light of the oral arguments today before the Ninth Circuit in the Prop 8 case, I am posting the full original piece below.
Also, it occurs to me that the “pairriage” thought experiment I devised addresses the panelists’ concerns that the Prop 8 advocates’ attorney had a little trouble responding to. ***
As Californians’ right to define one of their most sacred institutions wends its way up to the Supreme Court in Perry v. Schwarzenegger, all eyes will be on Justice Kennedy. Having authored the Court’s only two opinions expressly favoring the rights of homosexuals, and finding himself the perennial tie-breaker flanked by four reliable conservatives and four reliable liberals, Kennedy will almost certainly author the opinion that decides whether a state may continue to adhere to the traditional definition of marriage as one man and one woman. Yet, with tensions high on both sides of the debate, few can get a read on which way Kennedy is likely to vote.
However, Kennedy did leave some clues in his two previous opinions concerning gay rights. These clues suggest that, quite possibly, he may decline, for a third time, to confer any sweeping new constitutional rights or status upon homosexuals.
Although Kennedy has authored the only two Supreme Court opinions concerning homosexual rights—both times in favor—Kennedy’s career with the Court has been marked by so many conflicting rationales that many commentators are left with the nagging suspicion that Kennedy is often more concerned with results than legal principle. Or, to put it more charitably, that Kennedy regards constitutional law as much more nuanced and inscrutable than his colleagues.
Whether or not Justice Kennedy is sufficiently concerned with constitutional principle, however, he left enough clues in his previous opinions to suggest that, more likely than not, he will again decline to confer any sweeping new constitutional rights or status upon homosexuals.
First, Kennedy’s two earlier opinions in favor of homosexuals have been very cautiously and narrowly written. In both his 1996 opinion in Romer v. Evans and his 2003 opinion in Lawrence v. Texas, he declined to announce a “fundamental right” to engage in homosexual sex, which would have required states to demonstrate that any laws burdening homosexuals are narrowly tailored to achieve a compelling government interest.
To have declared a “fundamental right” to engage in homosexual sex would have been the most straight-forward and predictable rationale for reaching the ultimate results in those cases. The fact that Kennedy eschewed this approach and instead advanced a more labored and unlikely rationale strongly suggests he is not interested in taking up arms in this culture war. In other words, Kennedy probably intended to limit Romer and Lawrence to their facts.
Second, following the principle Kennedy announced in Romer and Lawrence would lead to severe unintended consequences. In Romer, Colorado voters had popularly voted to pass an initiative in response to state and local government policies granting preferential treatment to homosexuals on the basis of sexual orientation. The practice had become common throughout the relatively liberal state in the preceding years. The initiative would have reversed this practice and removed these special preferences, meaning if homosexuals wanted favors from the government unavailable to their fellow citizens, they would have to amend the constitution.
Kennedy, however, determined that Coloradans’ democratic countermeasures in leveling the playing field in their state were “inexplicable by anything but animus” toward homosexuals. In particularly bizarre logic, even for a post 1930s Court, Kennedy held that forcing any minority group to resort to constitutional amendment to achieve special preferences—“electoral-procedural discrimination,” as Scalia termed it in dissent—deprived that group the equal right to get special favors from the government. Thus, Kennedy held, Coloradans’ popularly enacted amendment violated the Equal Protection Clause.
As Scalia noted in his dissent, and after noting the various legislative successes achieved throughout Colorado in favor of special treatment for homosexuals, “homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.”
Scalia’s dissent challenged that, applied faithfully, this principle would work the end of laws prohibiting laws directed at any other unsavory conduct prohibited throughout the states. As he would later describe in his dissent in Lawrence:
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . .
The rationale is simple enough: if Kennedy’s reference to “animus” means simply “moral disapproval,” this spells the end for prohibitions on suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on. Importantly, however, Kennedy apparently did not concede that “animus” means “moral disapproval”—in fact, he did not once refer to “morals” in his majority opinion in Romer.
He did refer to it seven years later, however, in his opinion in Lawrence v. Texas. In that case, striking down a Texas law criminalizing homosexual sodomy, Kennedy again announced a very narrow rule that a state may not criminalize “private sexual conduct.” Again, Scalia warned of the slippery slope on which Kennedy was leading the Court.
Thus, conservatives are justifiably concerned by the implications of Romer and Lawrence. The Court twice has suggested that all morals legislation may now be unconstitutional. This is cause for grave concern to all Americans other than the hardiest of libertarians. In fact, already the Fundamentalist Church of Jesus Christ of Latter Day Saints has announced its intent to challenge Texas’s bigamy laws, a challenge that will undoubtedly rely on the logical extension of the principle announced in Romer and Lawrence.
Yet, reassurance springs from the same source as the concern. That is, Kennedy’s demonstrated inconsistency in the application of principle suggests there is little reason to presume he will adhere to the tenet that judges, unlike democratic majorities, must “carry things to their logical conclusion.” On the one hand, Scalia excoriated Kennedy for offering up an empty guarantee that Lawrence did not extend to the question of traditional marriage. As Scalia put it, the holding in Lawrence “‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” On the other hand, there is little reason to doubt that Kennedy would take Scalia up on this challenge. After all, Kennedy is just the man to enforce empty guarantees—particularly one of his own making.
Indeed, Kennedy himself repeatedly indicated that he was not prepared to extend the rule of Lawrence—whether or not compelled by principle and logic—beyond laws criminalizing homosexual conduct. In other words, Kennedy has indicated that whatever the implications of his expressed rule, he is intent on leaving marriage out of it:
The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. . . . The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Romer, however, shares some further factual similarities with Perry. Both cases involved popularly enacted constitutional amendments that worked to the disadvantage of homosexuals, and both cases involved findings of “animus” against the people who enacted the amendments. However, Romer’s holding was conspicuously limited to “unprecedented” laws based on “animus.” Again, Kennedy’s opinion did not mention morals as the reason for the Colorado constitutional amendment, but instead referred to the people’s “desire to harm” homosexuals. This seems far afield from mere moral disapproval of homosexual conduct, or a desire to maintain the traditional definition of marriage. And importantly, the court in Perry did not explicitly find that the people of California harbored any “animus” toward homosexuals.
Prop 8 certainly is not an “unprecedented” law that would bring it under the scope of the somewhat peculiar initiative in Romer, which concerned the use of preferences in state and local government hiring and contracting decisions. Prop 8 simply deals with a familiar and long-recognized social institution, establishing the traditional definition that had persisted for decades before the California Supreme Court abridged it in 2008.
Thus, unless Kennedy were to go Judge Walker one better and find that the people of California demonstrated “animus” and “a desire to harm” homosexuals in enacting Prop 8, and that restoring the traditional definition of marriage in law is “unprecedented,” Romer does not lend much support to Perry.
Kennedy has also expressed an intention in other opinions to stay out of other culture wars. For example, Kennedy joined the majority in Washington v. Glucksberg, which observed that “the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues,” and thus declined to “place the matter outside the arena of public debate and legislative action.” Kennedy also joined the majority’s express rejection of Justice Souter’s suggestion that the Court ought to strike down any “arbitrary imposition” or “purposeless restraints”—a standard very similar to the one Kennedy held applicable to criminal laws in Lawrence. Instead, Kennedy agreed that the appropriate test for finding enforceable liberty interests under the Fourteenth Amendment must “rein in the subjective elements that are necessarily present in due-process judicial review,” and must be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.”
Of course, reliable predictions are impossible when it comes to Justice Kennedy. Sometimes he refrains from the culture wars; sometimes he engages. Kennedy’s breadcrumbs in Romer and Lawrence suggest that, at least as of 2003, he was not ready to redefine marriage on behalf of all Americans. On the other hand, Kennedy’s notorious wandering eye for international affairs may tempt him to keep step with European countries. Nonetheless, there’s good reason to believe Kennedy will decline, for a third time, the invitation to effect such drastic changes both to American culture and constitutional law.
Howard Friedman at the Religion Clause reports that three of the Iowa Supreme Court justices who voted to strike down that state’s marriage law were voted off the bench. I did a write-up of the Varnum v. Brien case a while back, explaining why there was no sane interpretation of the Constitution to strike down Iowa’s one-man-one-woman marriage definition, given the state was plenty progressive in other aspects of gay rights, thus giving little support that there was any animus driving the law.
I previously proposed a thought experiment to help elucidate some points in the same-sex marriage debate. I refrained from giving away too many of my opinions and observations at the time, seeking instead to get some initial reactions in the comments. Now that it’s been several days, I’d like to offer some further thoughts now.
I submit that what happened to “Pairriage” in my hypothetical is similar to what’s happened with marriage. A key distinction, however, is that the marriage tent has become so large that many of those who engage in it do so unthinkingly, without due regard for its history, its meaning, its sacredness. Such participants can offer little defense against the institution’s being changed, and in fact undermine the argument against maintaining a “traditional” definition of marriage. That is, with divorce rates as high as they are, and there being nearly as many jokes about the travails of marriage as the decrepitude of lawyers, it is natural it would strike one as perhaps odd that, seemingly all of a sudden, everyone is amped up about defending the thing. “It may be a misery,” marriage supporters seem to be saying, “but the misery belongs to us.”
But this is one of the points the “pairriage” hypothetical makes. The institution means something to many people. Once a thing like that reaches a critical mass, it takes on its own gravity, and others will join up just because it’s part of the culture. The guardians of the institution will still require at least a symbolic, formal recognition and compliance with its basic guidelines. But there will be no way to ensure all its participants share the same values and with the same fervor as the guardians themselves.
Moreover, to say that many participants initially might give only symbolic, formal recognition, this is not for nothing. Just saying the words may not make you a true believer, but it establishes a presumption that, all else being equal, you owe some manner of fealty to the thing to which you pledged.
Those who do still cherish the institution as originally understood, however, will seek to prevent its meaning from becoming irreparably lost. They do not participate in the institution merely because it is convenient to call one’s mate a “husband” or a “wife,” or a “pairree” or “pairr-ot” or whatever, or to achieve implicit acceptance beyond the sphere of those who would actually bear witness to one’s relationship. They find value in the institution beyond the neologisms that may have developed incident to it. They would rightly resist those who, though purporting to seek entry into the institution, really just want to scrap it for parts.
Perhaps most importantly, the state is merely a reactive participant in this social play. The state does not define our social institutions, it merely reflects the definitions we create through our morals, values, religious beliefs, habits, customs, and traditions. These are important aspects of human life. Though, of course, they may often prove unpleasant when disagreements arise, often involving rebuke and rejection from certain communities who adhere to an ever-expanding force in the lives of individuals and the communities they inhabit. Thus, if the state so chooses, it could effectively usurp the institution of marriage and redefine the relationship along whatever lines it chooses. This should give one pause. In fact, there is even much concern in allowing the zeitgeist this power to usurp, plunder, and desiccate our social institutions. But there is an even greater, much more palpable concern in permitting the courts to wield this power.
The whole “you don’t have to have evidence” flap is interesting for a few reasons. One is the misdirection and misrepresentation by Judge Walker, as Ed Whelan pointed out in this piece. Another, by extension, is the fact that there is, indeed evidence of the procreative purpose. One of the best kinds of evidence—judicially noticeable evidence, as it has been repeated throughout judicial opinions and historical and other well-established works.
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.
Thus, new social science data is a nonstarter unless we are talking about a non-fundamental right. Instead, what plaintiffs would have had to show was animus—that the voters didn’t actually care primarily about preserving marriage for procreative or other legitimate purposes, but instead because they want to injure homosexuals. Justice Kennedy did hold for the Court in Romer v. Evans that Coloradans expressed “animus” in enacting its constitutional amendment to strike down municipal affirmative action laws favoring homosexuals. But the Court based that finding on the fact the discrimination was “unusual” and “unprecedented.” A law enshrining the traditional definition of marriage certainly does not fit that standard.
The Daily Caller ran my piece today predicting how the Supreme Court might rule if and when Perry v. Schwarzenegger and the Prop 8 issue winds up there. It’s a shortened version of a lengthier piece that had substantially more legal analysis, which I’ll post here later this week.