Gay rights

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.

Michele Bachmann Rehashes an Anti-Miscegenation Argument

Republican also-ran Michele Bachmann finally decided to pick on someone her own size, and started a serious policy debate with high schoolers over gay marriage. Discussing her outright opposition to the practice, Bachmann calmly explained that there’s no inequality issue in denying gay couples this basic human right, because gay and straight Americans are both entitled to marry someone of the opposite sex! See? Equality!

We’re sure she doesn’t know it, but this is precisely the argument that was used to support the old ban on miscegenation — mixed-race marrying — before the Supreme Court. Blacks, the argument went, weren’t being discriminated against, because under the law, neither black nor white could marry outside of their own race. Because the law was perfectly symmetrical in its subordination, there was no equal protection violation. Right?

Wrong. The Supreme Court is smarter than that. Their words: “Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation.” McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (cited approvingly in Loving). If Bachmann were anything like the constitutional scholar she claims to me, maybe she’d know this basic point of law, and not fall into the trap of endorsing the legal tools of institutional racism.

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.

Are Atheists “Too Sensitive”? Let’s Flip the Question

Angels in America?

HotAir flags another unsurprisingly short-sighted move by American Atheists: petitioning to change the name of a street — “Seven in Heaven Way,” named for seven local firefighters who died heroically on 9/11 — because it apparently signifies the State’s adoption of the Christian “Heaven” as an official public belief.

For once, HotAir is partially right! This is a ridiculous demand, for its tone-deaf effrontery to the majority, and its blatant misunderstanding of how thoroughly modernity has mainstreamed formerly religious words like “heaven.” (If you’re under any preconception about the routinization of religiosity, I give you DJ Sammy. Or, in the alternative, rewatch Battlestar Galactica, and remind yourself that a reference to “angels” could just as easily be an idiotic plot point as an invocation of Christian seraphim.)

But let’s flip the question, assume atheism qualifies as a unitary belief system, and ask whether other Americans are as overly sensitive about their belief systems, to wit, their religions.

• Men and women of religious faith, usually Christians, insist that life begins at conception. As such, a doctor receiving state funding cannot so much as mention the word “abortion” to a patient. The Supreme Court agrees.
• Gay marriage offends the delicate sensibilities of mainline Christians — why, their kids might have to learn that being gay is a thing! (YouTube) This general queasiness is enough for most to justify denying millions of Americans the right to have a family.
• Fundamentalists view it as their sovereign right to force the entire country to celebrate Christian holidays. Naturally, then, those stores who dare to offer generic “happy holidays” greetings find themselves faced with ridicule, and even boycotts.

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.

Traditional Marriage

Nota bene, for all “Bible-believing” opponents of gay marriage…

Click to enlarge.

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.