Equality

Victory in California: What to Take from the Ninth Circuit’s Decision

Yesterday gave American progressives two strong pieces of good news: first, Rick Santorum swept a few early primary and caucus states, gaining not so many delegates, but considerable momentum, and therefore guaranteeing that the continuing disaster that is the Republican primary season will drag on for… a while.

Second, and more importantly, the Ninth Circuit Court of Appeals sustained Judge Vaughn Walker’s decision of August 2010 striking down, as unconstitutional, California voters’ attempt to end gay marriage in their state (styled Proposition 8). Perry v. Brown follows the tradition of Romer v. Evans, 517 U.S. 620 (1996), the last comparable gay rights case to reach the Supreme Court, where a six-judge majority threw out a Colorado provision which purported to invalidate city- and community-level ordinances prohibiting discrimination against gay citizens. Circuit Judge Reinhardt quoted Romer to build on this sentiment, in his opinion for the 2-1 panel:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. [. . . .] The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

Slip op. at 5. Set against this background, Perry‘s holding reinstating gay marriage as a constitutionally protected right in California seems a garden-variety exercise of judicial review. It is, after all, settled law that “we don’t like them” fails to provide a rational basis to strip an otherwise inoffensive class of important rights. But because Perry will likely proceed to the Supreme Court, and to meet the opening conservative criticism, some interesting points about the Perry decision:

• Perry applies rational-basis review: this is as-expected, since homosexuals are not yet a protected class, and reflects the highest possible deference to the people. (Shockingly, Maggie Gallagher appears not to understand this point.) The benefit for plaintiffs is that, although the Court declined to recognize homosexuals as a protected class, they conclude that even indulging in every favorable inference in favor of the peoples’ basis for enacting Proposition 8, the measure fails a basic test of rationality.
• That puts Kennedy in a bind: For Prop 8 proponents, that should sting a little. But it also opens up the possibility for the Supreme Court to reverse, and hold that rational basis review requires broader deference than the Ninth Circuit offered. Interestingly, that would be a hard argument for Justice Kennedy to make. He was the author of the opinion in Romer that held that animus is never “rational,” meaning that, to reverse Perry, he’d have to reverse himself, or weasel his way out of his own logic.
• Threshold issues didn’t matter: contrary to our predictions, the Ninth Circuit disposed of the standing issue summarily.
• The Court is protecting itself: Judge Reinhardt very carefully limits the scope of his holding to the peculiar case of California, where gay marriage was a constitutional guarantee (if only due to the California Supreme Court) before the voters wiped it out. By focusing on the negative nature of Prop 8, the Court avoids (it says) making any argument that could suggest a positive case for gay marriage in those states lacking a pre-existing constitutional right. Slip op. at 6.
• The Court is protecting Judge Walker: the lower court’s decision became a cause célèbre for its extensive factual findings, setting out the value of marriage to gay and straight couples alike, and the motivations behind the enactment of Prop 8. But some legal commentators have questioned whether it won’t be all too easy for higher courts to disregard Walker’s finding, as falling outside the bounds of the traditional types of trial facts to which we afford great deference. Perry compromises, by narrowing the universe of relevant facts, before finding the subset of relevant facts worthy of deference. Slip op. at 32. The effect is to sully Judge Walker’s larger opus, but guarantee that the Supreme Court can’t use Walker’s factual findings against him to (say) order retrial.

The second point dominates the rest, and indicates that this could be an easy (even a 6-3) win for gay marriage advocates. But since, as written, the decision doesn’t declare a positive right to gay marriage, it won’t guarantee nationwide recognition of gay marriage. Even if it will usher in a landslide of parallel litigation designed to settle that very issue.

An Answer to Santorum’s “Marriage” Analogy

It’s a perilous thing, Googling “Santorum.” But that’s precisely what I had to do to write this post.

Last week, former Senator cum continuing failure Rick Santorum attempted a bit of metaphysics, with predictable results. You see, gay marriage simply cannot be, because gay marriage is as different from straight marriage as a napkin is from a paper towel.

Which is to say, not very different at all.

Santorum’s problem is he’s focusing on the wrong trait to define marriage. As he understands it, the goal of marriage is to glorify God by promoting His specific form of the family. Functionally, the Senator has settled on the one trait of traditional marriage specifically capable of justifying his hoped-for exclusion, and in the process, ignored all the important traits of that institution. Love, commitment, and societal stability fall by the wayside. It’s all and exclusively about God. How shallow.

Let’s try a different analogy. As Santorum sees it, gay marriage is as different from straight marriage as raft is from a foam pool “noodle”: the former is used to relax, and the latter to whack people.

Totally different — but both will keep you afloat.

Allocating Blame Between a Willing President, and an Unwilling Law

Consider it a metonym for larger questions on the economy, the war on terror, and beyond: if we have a President who’s made his policy position clear, do we blame him, or others, when the law prevents him from making good on a promise?

Here’s the story. Two men married in Massachusetts, one an American, the other an Australian. They’ve lived together as a couple for almost a decade and their marriage, remember, is legal under both state and Australian law. On that basis, the American sought permanent residence for his husband. Earlier this week, the Obama administration denied permanent resident status, citing the Defense of Marriage Act, which establishes that a valid “marriage,” for the purposes of federal law, requires one man and one woman. Functionally, for the purposes of federal benefits (like immigration status, Social Security, etc.), the bigoted federal definition supersedes more enlightened state law.

Oh, to make matters just a billion times worse, the now-deportable Australian is dying of AIDS, and dependent on his husband’s care.

Now here’s the question. Whose “fault” is this undeniable tragedy? It’s true that USCIS may in some cases, as an act of discretion, override the law and grant resident status to this couple, but in so doing they would violate clearly applicable law.

I would hold that blame rests with the jailer, who’s tied the prisoner’s hands, rather than the prisoner, who’s either not creative or not brave enough to slip his bonds. Remember, federal power over domestic matters is an illusion absent a compliant or filibuster-proof Congress. For all intents and purposes, President Obama has never had either.

Reconciling the Right’s Cognitive Dissonance on Marriage

Texas Governor and perpetually undecided presidential candidate Rick Perry explains his stance on gay marriage. It’s a state decision, through and through.

Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business.

Remarkable consistency, with none of the conscious attempt to honor both of the conflicting impulses of “states’ rights” and fundamentalism. On the flip side, New York Magazine pegs Michele Bachmann’s stance as nonsensical, the result of trying to pander to both camps:

I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

But is that inconsistent? I see no conflict here, but to reach that conclusion, we have to imbue Mrs. Bachmann with perhaps more of an intellect than she deserves. Bachmann’s stance admits of a guiding principle; it’s just a legal principle, not a moral one. If we accept the tea party idea that every bit of government power should be laid out explicitly in the Constitution, a federal definition of marriage, accomplished by act of Congress, would be an invasion of states’ rights, in a way that a constitutional amendment is not. Admittedly this dilutes the principle that the government is best which governs least, but it’s in line with a model of federalism requiring strictly enumerated powers. Constitutional theocracy: it’s the American way, to some, apparently.

The Unspoken-but-Acknowledged Truth About Gay Marriage

Politico quotes another’s observation:

[W]hen the question of [gay] marriage reaches the Supreme Court, the justices will ask themselves, is the country ready? Is it ready culturally, how many states permit same-sex marriage, and what are elected officials saying? At that point and in preparation for that point, the stated position of a sitting president — or even a past president — will certainly matter. At that point, the marriage-equality movement will need every potential arrow in its quiver, including public opinion, state wins and yes, the support of our nation’s chief executive.

Given what the law (as an abstract construct) is supposed to be, it’s interesting that we’re acknowledging this central truth openly, now. Namely, that when the first gay marriage case reaches the Supreme Court, it will be about everything but the law, because both sides know where the law leads. This is the rare case where the law points clearly one way and current-but-evolving public opinion points another. I will leave the obvious ramifications for conservative judicial philosophy — which purports to decry judges inserting politics into the law — unspoken.

Overwrought Analogy Of-The-Day: Did New York Kill Socrates?

Late last Friday, the New York Senate finally voted, by a margin that’s still surprisingly slim for those who know New York state, to permit gay couples to use the appellation “marriage.” Why did it take so long? Because the New York Senate is not a representative body, and when political reapportionment fails, I expect a federal court will say just that. But in the meantime, we on the left should celebrate, and those on the right should engage in absurd fearmongering. Cue the National Review, which responded to the news with an academic debate about whether the vote effects “tyranny.” Kathryn Jean Lopez:

We are witnessing tyranny today that is fostered by a false sense of freedom, a tyranny that faux tolerance ferments.

Charmingly alliterative, and shockingly inflammatory. We’ve heard the argument that gay marriage subordinates Christians, because everytime the state diverges from a fundamentalist theocracy, it abridges what fundamentalists apparently view as their basic right to live in a theocracy. But I’ve never heard it put just this way.

Neither, apparently, had Mrs. Lopez’s colleagues. After some called her on this bit of hyperbole, she doubled down, comparing the Senate’s (democratic and legitimate) recognition of same-sex unions to Athens’ (democratic and legitimate) decision to put the philosopher Socrates to death. For her, the two votes share the sin of unmooring democratic discretion from external moral limits. In New York’s case, that limit is the fundamentalist Christian definition on marriage. In Socrates’ case… well…

I’d actually like to hear her define it. Athens put Socrates to death for “not believing in the gods of the state,” or, teaching that the gods did not exist, or were capricious, amoral, and unworthy of reverence. This strikes me as a cautionary tale about the danger of letting fear, fed by fundamentalism, overwhelm our sense of community, and our basic moral duty to deal with dissent and difference respectfully. Athens’ error was putting faith above reason. To the extent that Athens’ experience with the dangers of direct democracy bears any relevance to an action taken by a constitutional republic consistent with its founding documents — especially when the action taken gives respect, rather than takes a life — it seems to cut the other way. No?

An actually analogous situation would be when Colorado used a ballot initiative to override a city-by-city initiative to extend the equal protection of the laws to gay citizens. Here, as in Socrates’ case, the state let fear overcome the basic, constitutional requirement of equal protection. Thankfully, in that case, the Supreme Court stepped in to rectify the error, and prove the superiority of constitutionalism over direct democracy.

We can acknowledge that this kind of hyperbole is ridiculous. But still, conservatives will persist in their remarkable ability to construe the equality of their fellow-citizens as a direct affront to their privately-held beliefs (Santorum calls the vote a “nullification” of marriage). Perhaps there’s no cure but time.

New York for Gay Marriage

Last term, the New York Senate defeated a bill that would’ve legalized gay marriage after almost fifteen Senators spoke in favor of it on the floor, and just one against it. The message was clear: this is the politics of bigotry, or time to play cover-your-ass for a tough election year, and we’re not interested in engaging on the merits. But most defeats come interspersed with tales of nobility. Senator Dan Squadron’s floor speech is one.

Though I over-use this clip, it’s a good one. New York politics has its problems, but there are a few rising stars — incorruptible, dedicated, brilliant — and Squadron is one of them. (Another I had the privilege of working for… but as a matter of professionalism, I shouldn’t use his name.) Senator Squadron also offers the best, most compelling response to the types of emotional appeals we’re about to get from the right, because Governor Cuomo has just reintroduced the marriage bill, and this time, he has the votes. Last term’s defeat was largely a product of bad whipping, but Democratic leadership won’t make that mistake twice.

Against that, we get the usual histrionics, with one interesting point:

Lopez: How is this not a civil-rights issue for Americans who identify themselves as homosexuals or who otherwise have homosexual desires?

Mechmann: To call it a “civil rights” issue begs the question. Usually, when we’re speaking of a “civil right” we’re talking about something that is deeply rooted in our history and tradition, something that is intrinsic to ordered liberty and full participation in our society and the political process. How can something that nobody even imagined 15 years ago fall into that category? If anything, the redefinition of marriage is denying the civil rights of married couples to have special recognition and protection of their union — which is undeniably deeply rooted in our history and tradition, something that is intrinsic to ordered liberty and full participation in our society.

This is an interesting way of looking at battles that, though long-past, were always fought in the future. Civil rights law is settled now, but it’s tautologically true that each change was, at the time of its occurrence, not “deeply rooted in our history and tradition.” Yes, when we look for new due process rights, we turn to “history and tradition.” But in equal protection law — and in due process law, post-Lawrence — we also look at what history and tradition should have been. It’s the baseline American assumption that life can always be better, in action. Our history painfully illustrates that if civil rights rights are things we’ve always known, their proper application is something we’ve had to update on a continual basis, as we learn more about ourselves and our countrymen. Conservatives, as defenders of the status quo, have imagined that journey was complete at each step. But they’ve always been wrong.

It’s hardly any different here. Looking to tradition is the easy way out, and that’s not our way. The right thing to do is to follow our principles to our logical conclusion. That comports with the “history and tradition” of civil rights in America, and that leads directly to gay marriage.

(I need hardly add that it’s not a “civil right” to enjoy another’s lack of the same. “Freedom is merely privilege extended, unless enjoyed by one and all.”)

The nature of civil rights is progress. We’ve always won these fights, and we’ll win this one too. We just might have to put up with some absurd whining for a little while.

The Roots of Anti-Gay Feeling

Wisconsin’s Scott Walker just gets worse and worse. Today, he’s announced that he will not defend a new state law, allowing “same-sex couples to take family and medical leave to care for a seriously ill partner, make end-of-life decisions and have hospital visitation rights,” because any legal respect for gay relationships plausibly violates the state constitution.

I’m not so naïve as to imagine that everyone who opposes gay marriage necessarily hates or fears gay men and women, as a group. It’s possible to have concerns about the institution, and its future, while acknowledging that gay relationships are of, and entitled to, equal dignity. This news out of Wisconsin, though, is something different entirely. Any political philosophy that would deny a man a chance to visit and care for his dying husband can only find its basis in hate, and in the absolute abandonment of any sense of Christian charity. Neither religion nor morality provide any cover for such a despicable position.

In my experience, too, it’s actually the rare conservative who would deny gay couples visitation rights, although it’s not an easy position for a lot of them to take. Chris Baker, a Houston conservative talk show personality in the mold of Glenn Beck, lost his show about a year after affirmatively endorsing visitation rights for gay couples (he’s now back, I hear). Like the Republican Party generally, apparently the anti-gay lobby’s response to its increasing marginalization is to radicalize.

We might also note that Walker’s decision to withdraw from defending his own state’s law approximates President Obama’s move, earlier this year, to non-enforce Section 3 of the Defense of Marriage Act. Cue conservative outrage in three… two… oh? Nothing? Right, of course.

The Role of Romantic Love in Defining Marriage

Credit where it’s due to the National Review, for mounting what is, at least to me, the most cogent and rational defense of the restrictivist vision of marriage I’ve seen in some time, accomplished without referencing religion even once. That said, it’s typical National Review writing — lots of big words to hide small ideas — and certainly falls apart in due course. But it remains worth review and response.

The authors’ operative thesis seems to be that there exists some unique type of marital love that can only exist between a man and woman, as ultimately deriving from the procreative power. (This is nothing that hasn’t been heard and rejected by a growing number of courts: setting aside proffered philosophical justifications for the limitation, its over- and under-inclusiveness dooms it as a limiting criterion.) Along the way, the argument also rejects, by necessity, romantic love as a justification for marriage.

It’s true that, for gay marriage to make sense, the institution’s justification must rest almost exclusively on romantic love. But that’s a shift that’s long since happened, such that we’re stuck with its (overhyped) consequences regardless of whether we let men marry men. A trip to the theater will prove as much: we no longer marry to have children, to join families, or to cement power. We marry to love. And for that desirable transformation, we can blame Disney as much as “The Gays.”

And yet we’re told a number of reasons why romantic love is an undesirable, or insufficient basis to support the institution of marriage. For one, apparently, romantic love is selfish. (Has the author has ever been in love?) The article leads with a description of a micro-scandal that erupted this past December, when the New York Times spotlighted and celebrated, in their exclusive “Vows” section, the marriage of a couple who met while both were already married… to other people. This American Life previously covered the same phenomenon. To the Review, heartbreak and broken families are the results of basing marriage on exclusively romantic love, which is fleeting, and readily transferable.

I don’t buy it. Blaming broken marriages on shifting modern morals, and yearning for an idyllic bygone era, has a distinctively underthought Miniver Cheevy quality to it. If we hear about infidelity more “these days,” it’s because we hear about more everything “these days.” But more — and here’s where the Review proves profoundly internally inconsistent — if this is true, it’s not a problem that can be solved by legalizing some unions, and forbidding others. Each couple must decide for themselves why marriage matters to them. Some will choose bad reasons; those unions may fail. Banning some marriages, as a way of banning a basis for marriage, will miss the target, do nothing to arrest a decline in personal morality (if such a thing exists, which I do not concede), and accomplish the same legislative coercion that other Review authors inelegantly style “fascism.” Aren’t conservatives supposed to reject legislation as a way of controlling emotion?

Second, we hear, love is fleeting. Well… sometimes… certainly not always. But so is the reproductive power, and while the fact that some loves don’t endure may speak to the rarity and value of true love, it fails to rebut its reality.

So we come to the author’s critical point: that if marital love equals romantic love, the institution is diminished and trivialized, reduced to a special case of friendship (a thing defined by “degree”), when it should instead be unique and set apart by something firm from all other human relationships (a thing defined by “type”). Our author settles on reproduction as that signifier.

This is a narrow way to look at love. A change of degree can accomplish a change of type. As anyone who’s fallen in love with a friend — and who hasn’t? — would tell you, the depth of emotion hardly suffers for its origin, and there is a point along that continuum, a kick galvanic, where the character of feeling changes, and there’s no going back. Like progress in Kuhn’s paradigm of scientific revolutions, emotion flows over the channel lock, into a new way of thinking. And when it does, there’s no risk of confusing lover with friend.

More, settling on reproduction as the sole distinguishing factor between marriage and lesser relationships proves too much, and ignores reality.  First, if the reproductive act so transmutes mere love into Love that it, alone, is capable of sustaining the institution of marriage, as a corollary, gay love can never be anything more than a pale shadow of straight love… and I thought we’d moved past the pathological view of sexuality. Second, marriage is what we make of it: we don’t need the law, or God, or anyone to tell us that marriage should be special. It is special. Each couple takes the institution and makes it their own, using distinctions as varied as the human experience to separate their marriage from the other meaningful relationships in their shared lives. True, some distinguish it by having children together; but more distinguish it by raising children together. The only consistency between married couples is that all view their marriage as conveying something important.

Remember, we’re only having this debate because more people want to get married than we’ll currently allow. This is a good problem for an institution to have.

Equality is the Official Position of the United States Government

By letter to Speaker Boehner, Attorney General Eric Holder informed Congress that the executive branch will no longer defend the discriminatory Defense of Marriage Act, because, in the first case requiring Main Justice to take a stand on the issue, it is the determination of President Obama, and therefore of the Department of Justice, that gay men and women are of equal dignity, and entitled to the full protections of the Equal Protection Clause.

Two points. First, to answer some conservative criticisms I’ve heard, the President isn’t “declaring” a law unconstitutional. He’s stating his opinion on its validity, and therefore directing the Department of Justice, in his role as the head of the executive branch, to enforce the laws. As my friend Dean (hi Dean!) just pointed out to me by self-righteous phone call, the President is entitled and indeed expected to have an independent constitutional vision, which he can articulate by vetoing legislation, directing its enforcement or non-enforcement under the Take Care clause and, yes, by requesting the Department of Justice direct its limited resources in conformity with the law, as it is and as it should be. Right- and left-leaning legal scholars all agree on this point, and the position, which I expect we’ll hear from the Conservapedias of the world, that the President can’t “declare laws unconstitutional,” therefore lacks merit.

Second, others have noted some limitations in this directive. Nondefense of DoMA § 3 appears to leave § 2, permitting states to fail to recognize foreign marriages, effective. But the administration’s articulated position sweeps broader. General Holder speaks not just to DoMA § 3, but to the applicable standard of review when deciding an equal protection case impacting gay rights. As he says, “classifications based on sexual orientation warrant heightened scrutiny.” This position, if argued and accepted in court, compels the fall of the entire statute, and of any state-law limitation on gay marriage. True, gay rights can still be circumscribed under rational basis review, but not really.

Effective this afternoon, we’re living in a new world. The battle duly fought and won, all that’s left is to carry the government’s position into legal effect, which will require answering some fairly tough and interesting legal questions. We’ll be there to help.

By the way, this is why you elect Democratic presidents. Considering staying home on Election Day 2012? Don’t.  We have something big to fight for now.