Some more on the “separate but equal” argument

KipEsq. has a thorough response to my post about whether the California gay marriage decision can be analogized to the repudiation of separate but equal in Brown v. Board.

Kip’s argument begins by disputing that “civil unions” really were equal to marriages, for various reasons. I suspect that he’s right that these two statuses are not the same, but I don’t know for sure, and the Supreme Court’s opinion dispenses with any possible differences rather summarily. The majority says that the “comprehensive domestic partnership legislation” gave same-sex couples the opportunity to “enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” That “virtually” might stand for all sorts of differences, but the Court itself ignored those differences, presuming for the sake of the case that civil unions and marriages were substantively the same. If the Court had rested its opinion on the differences, it would be a much stronger decision, I think. But the Court seems to concede that the two are substantively equal, and that the central question is only the name given to one status versus the other.

As a side note, Kip argues that among the differences between civil unions and marriages is that “a civil union gay couple cannot have their status recognized in New York, while a married gay couple can,” and that “a civil union gay couple has no legal standing to challenge the federal Defense of Marriage Act, while a married gay couple (presumably) can.” But these can’t be relevant to the question of whether the civil union status and the marriage status are equal for purposes of the Marriage Cases. The lack of standing is certainly not grounds for finding the two statuses unequal as a matter of Fourteenth Amendment law—there are all sorts of legal opportunities that are open to some folks and not to others but that doesn’t rise to the level of an equal protection violation. And while a couple certified as a civil union in California may not be entitled to legal recognition in another state, that too is irrelevant, since the Constitution does not require states to extend recognition to same-sex marriages, or even to marriages between heterosexuals, from other states. In other words, the Full Faith and Credit Clause in no way requires that the states provide institutions which will enable their citizens to obtain certain types of recognition in other states, just like it does not require a state to recognize civil unions from out of state. I’ve blogged before about this, and about why the Defense of Marriage Act is constitutional under the Full Faith and Credit Clause. (It’s an open question whether it’s constitutional under the Equal Protection Clause.)

So the bottom line is: 1) some of the inequalities Kip lists are irrelevant, and 2) those that are relevant would have provided a much stronger grounding for the Marriage Cases than the California Supreme Court chose to provide. It chose to assume the two statuses are substantively the same, and that the name alone was enough to qualify as an inequality. I think that was a mistake.

Second, I pointed out that the civil union mechanism provided by California law was not analogous to Jim Crow laws which sought to create a second class citizenship status. Kip calls this “sophistry,” but I think his argument is quite weak. It consists of the following:

is Sandefur suggesting that “intertwined but unequal” is somehow less inherently unequal than “separate but equal” was? That cannot possibly be right. Metaphysical separateness (i.e., in the “back of the bus” sense) is simply not a necessary condition for a Plessy-Brown analytical framework; legal separateness is quite sufficient. Gays get a separate, unequal, constitutionally suspect nomenclature, period. How is that not enough to trigger scrutiny? Why, exactly, should more be needed?

Well, the answer is yes—intertwined but unequal is less inherently unequal than is separate but equal. That is to say, the former is not separate, and the latter is. While separation is not the sine qua non of Plessy-style inequality, it is certainly a very important ingredient in the execrable collection of separateness that made up the Jim Crow system. Physical separation and degradation was a massive component of it—that’s why it was elsewhere called “apartheid.” Without that element, inequality might still exist, but it would hardly be so obvious.

And I think Kip is stretching to say that “gays get a separate, unequal, constitutionally suspect nomenclature.” Instead, what they got was an intertwined and equal (or so the Court assumed) status, called by a non-derogatory term. Whether or not that “triggers scrutiny” of one sort or another, it doesn’t prove that the two statuses were, in fact, “separate but equal” in the Plessy sense.

Kip takes issue with my point that the term “civil union” was nonderogatory, because “I see no basis in the California Constitution, or Brown, to conclude or even to posit that ‘offensiveness’ is a prerequisite for equal protection review.” It’s not—but it certainly would make your case stronger. The state has different words for different legal institutions, even in cases where they are identical or virtually identical. But I don’t think it’s possible to read Brown without looking at the context of segregation—a context very, very different from the treatment of homosexual couples in California. Yes, homosexual couples with civil unions in California had a status not interchangeable with heterosexual couples with marriages in California—the name, for one thing, was different. But that sure doesn’t seem like the same sort of start dividing line that was created by segregation and that is connoted by the term “separate but equal.”

All separation, as a logical matter, will mean some kind of inequality: women’s rooms don’t have urinals, for example. That doesn’t prove that that separation, or even some types of inequality, are violations of the equality principle. That’s because the type of separation that is inherently unequal is the type of separation created by an agenda for setting up a caste system with a denigrated population of second-class citizens.* If that is what the civil union/marriage distinction was doing, then it would be separate but unequal. And I think a reasonable argument can be made that that is what was going on: Prop. 22 was passed out of mere hostility to homosexuals. But the California Supreme Court just didn’t make that argument, and I have yet to see another argument convincingly made.

*–Kip suggests that the test should be whether or not the status or nomenclature is offensive to the minority at issue. Obviously that can’t be the test, because some within that minority would be offended and some would not be. At that point, do you go with the views of the majority of that minority? Or the minority of that minority? Some minority of every minority will be offended by anything and everything—or will claim they are. So then you’d have to put a reasonableness limitation on it, and then you’re back to where you started.