A look at The Marriage Cases

The opinions of the justices of the California Supreme Court in the Marriage Cases take up some 170 pages, but the bottom line is that by a 4-3 decision, the Court finds it unconstitutional (under the state Constitution) to establish a civil-union mechanism for homosexuals which provides the same substantive protections as the marriage law that prevails for heterosexuals, and yet to call it by a different name than marriage.

The Court begins by making clear that the question is not whether the state can bar homosexual couples from having the same substantive rights as heterosexual couples, but rather whether the state can establish an identical (or nearly identical) set of substantive rights for each, but only confer the name “marriage” on one and not the other. The entire dispute is about the word “marriage.” The state argued

that fundamental constitutional rights generally are defined by substance rather than by form, reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple’s constitutional right to marry simply by assigning their official relationship a name other than marriage.

And this is what the Court finds unconstitutional. The reason is that

One of the core elements of the right to establish an officially recognized family...is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.

First things first: I believe that homosexuals should be allowed to marry and that laws restricting that right are probably unconstitutional both as a matter of state and federal law. But I think that the decision today contains severe weaknesses in its approach that undermine the validity of its conclusion. I agree with the outcome, but I think the decision bears marks of haste and shaky logic that could ultimately handicap the movement for gay equality.

Second, the most significant portion of today’s opinion by far is part V.B. of the opinion (beginning on page 93 of the majority opinion). That is where the Court declares that discrimination on the basis of sexual orientation is a matter for strict scrutiny. This is the most important element of this case as a precedential matter—it will mean that discrimination against homosexuals will be permitted only in the rarest circumstances, only in the kinds of circumstances in which government is allowed to discriminate against people on the basis of race (which as we know is very seldom). The government may now discriminate between men and women more easily than it can discriminate against homosexuals. I, of course, believe nearly everything government does should be subject to strict scrutiny—but this part of the opinion will have extremely far-ranging effects which I don’t think Californians are prepared to accept.

And the reasoning the Court uses in coming to this conclusion is questionable. In the past, strict scrutiny protection has usually been reserved for those groups discriminated against on the basis of an immutable trait (like race—something the person can do nothing about), and where that trait has nothing to do with the person’s ability to contribute to society. It’s also been reserved for cases where the victim of the discrimination was previously relegated to second-class status as a citizen.

Rather than explaining why homosexuals qualify under these criteria, however, the California Supreme Court proceeds to explain why these criteria don’t always apply. Some of these explanations are reasonable—for example, immutability isn’t essential, since discriminating against someone on the basis of religion is not allowed, and that’s not an immutable characteristic. But the Court waters down the criteria of strict scrutiny so much that it declares

that the most important factors...are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual’s ability to perform or contribute to society. Thus, “courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.”

Those of us who don’t buy the “living constitution” trope will have trouble with this. But even those who do should pause here. After all, if democracy is your core constitutional value, how democratic is it that the (appointed) judges—rather than the voters who by a 2/3rds margin voted to ban gay marriage—should be the ones to decide what sorts of social stereotypes are “outdated”? The Court here has vastly expanded its authority to decide when strict scrutiny shall apply, on the basis of its own determination of what sorts of stereotypes are “outdated”—without regard for the public opinion that is, after all, the sole determining factor in judging the freshness of social stereotypes. While I personally agree that such stereotypes ought to die out, and that they are based on fallacious thinking or reflexive emotionalism, that does not mean that those stereotypes are “outdated,” or that the “date” of such stereotypes should determine the constitutional status of laws relating to those stereotypes. This type of reasoning is unmoored from constitutional, logical, or legal thinking.

What about the nature of the right at stake? The Court declares that the right at stake is not privacy, but the right to be free from “stigma”—the right to have one’s private relationship “recognized” by the state in terms of a word that does not cast aspersions on one: “the right,” as the Court puts it, “of [same-sex] couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.”

But is this really a right? Let’s start with first principles.

(a) One certainly has the right to have sex with whatever consenting adult one pleases, in any way and for whatever reason you and that person choose. That is a natural right in which no third party has any right to interfere.

(b) One also has the right to form an agreement—a contract—to care for another on a permanent basis and to agree to the various elements that, joined together, constitute what we call marriage.

But does one have (c) a right to state recognition of that contract? That question involves the boundary between natural rights and civil rights—that is, the difference between the sort of fundamental rights we all have because we are thinking individuals, and the rights that we have solely on the basis of the social compact. We all have a right to be treated equally, and that means that the state may not without good reason choose to confer recognition on my private agreement and not on yours. As the great Loving v. Virginia case declared, the state may not recognize only white-white marriages but not black-white marriages. For that reason, unless there are good reasons, the state may not choose to confer recognition on straight couples but not on gay couples. The reason Massachusetts’ excellent Goodridge decision was so persuasive was that it explained why no such good reason for discrimination existed.

But here, the state of California does confer the same—or nearly the same—recognition on same-sex marriages as it does on straight marriages. The only difference is the word the state uses. Do you have a right to a word?

I think on this point, there is room for disagreement, but I would be skeptical. First, if the state were using a word for same-sex marriages that was derogatory or offensive, then there would be a stronger argument that the state was discriminating against them. In Hamilton v. Alabama, 376 U.S. 650 (1964), the U.S. Supreme Court once reversed a contempt conviction for a black woman who refused to be addressed only by her first name in a southern state court. Clearly such treatment was offensive and discriminatory in violation of the equal protection clause. But here, California simply denominates gay marriages “civil unions.” Is that really a violation of the rights of gay couples? If so, is it discrimination to refer to people on AFDC or WIC as “welfare recipients”? Is it discrimination to refer to people in wheelchairs as “handicapped”? I find this an implausible ground for a finding of discrimination.

On the other hand, it is true that California’s ban on gay marriage was enacted solely out of an irrational hostility to gay couples. In that context, it could be characterized as discriminatory treatment. Still, I don’t find it convincing.

I’m still thinking about the decision and will blog more later.

Update: KipEsq. has some very cogent thoughts in reaction to my comments.

Update: I look at Justice Baxter's dissent here.

Update: A look at how Brown v. Board might apply here.