A Stitch in Haste

I'm obviously late to the party and will therefore limit my thoughts to those I have not seen elsewhere.

--Note that these supposedly "activist" judges made, while trying to untangle the various lawsuits and procedural histories, two hardly activist rulings:

(1) That the original state DOMA did indeed block all same-sex marriages, not just those from other jurisdictions. This had been a point of significant contention going into the litigation.

(2) That the truly abhorrent "activist" here, San Francisco mayor Gavin Newsom, was flagrantly violating the law by illegally issuing same-sex marriage licenses. So "flagrantly violating the law" in fact that the roughly 4,000 such licenses he issued are still null and void despite the current ruling on the underlying constitutional question. This was exactly the point I made at the time: judicial review rests with courts, not with mayors. This is not a difficult concept.

--The court emphasizes, early on, the obvious: The question of whether marriage — straight, gay, or otherwise — "benefits society" is entirely irrelevant to the question of whether it is in fact a fundamental right. Rights exist before and above any "social benefit" (or, for that matter, any social harm) they may generate (cf., the Supreme Court's abysmally incorrect campaign finance jurisprudence). My speech need not have any "social benefit" for me to have a right to engage in it. Your religion (or my lack of it) need not have any "social benefit" in order for it to be protected, and so on.

--I was very pleased to see the court invoke, as I did recently, the question of banning women from serving as jurors as an example of courts moving quickly to reverse errors regarding infringing individual rights. Similarly, I was thrilled to see the court's analysis of how the "procreation argument" is wholly invalid because it is both overinclusive (gay couples raise and even conceive children) and underinclusive (straight couples who cannot conceive are not blocked from marrying). In every way that the high courts of New York and Washington States got this all-important point exactly wrong, California got it exactly right.

--I will have more on the "separate but equal" analogy in a separate post replying yet again to my dear cyber-colleague Tim Sandefur. All that need be said here is:

> Denying same-sex couples the use of the term "marriage" denies them the right to have their marriage recognized in New York State. For that reason alone, "separate but equal" is a straightforward impossibility. This is entirely apart from the philosophical observation that the whole point of inventing the term "civil union" was to emphasize that gays are not entitled to the word "marriage" (i.e., it is an irrefutable term of stigmatization ex ante).

> The court also noted the added burden gay couples face having to explain their domestic partner status is a way that a married couple does not (cf., the situation in New Jersey). For example, inquiries of one's marital status (e.g., for insurance coverage or other purposes) will cause gays to involuntarily reveal their sexual orientation (domestic partnership is generally not available to California heterosexuals). So gays face a privacy incursion that straights do not. Again, "separate but equal is inherently unequal" is simply not the insolent sophistry that some are suggesting it is in this matter.

--I don't think most commentators fully appreciate the importance of the court's finding that sexual orientation is a suspect classification warranting heightened scrutiny. Long before gay marriage specifically was on anyone's radar screen, the "Holy Grail" of gay rights litigation had been simply to get courts to afford gays the same kind of protection that women had been granted — "intermediate scrutiny." On this specifically:

> California does not recognize intermediate scrutiny for any suspect classification; it's always either strict scrutiny or rational basis. In this California differs from the federal courts. The presumption in other jurisdictions had always been that sexual orientation deserved intermediate scrutiny comparable to gender-based discrimination.

> There is nothing inconsistent about a libertarian preferring strict scrutiny for all laws that infringe rights (what Randy Barnett calls the presumption of liberty) while simultaneously acknowledging that, if multiple levels of scrutiny are going to be applied, then sexual orientation surely deserves heightened scrutiny, since it is an inherent, unchosen, immutable trait just like race, gender or national origin (cf., the propriety of libertarians supporting expanding un-libertarian non-discrimination laws to cover sexual orientation, even if they oppose such laws generally).

> I have not seen anyone address the question of where heightened scrutiny for sexual orientation discrimination would stand if the California bigot amendment passes. As I understand it (California attorneys would know more), the amendment would reverse only the holding of In re Marriage Cases, but not the reasoning. It seems to me that, regardless of what happens in November, heightened scrutiny for gays will remain good law in California in every context except marriage. This would, meanwhile, give courts in other jurisdictions an opportunity to revisit their own case law on the matter. In this, the victory is permanent.

--I find especially frustrating the critiques of the decision relative to the gains California gays have made through the legislative process. The idea that gays' ability to obtain a few crumbs — or even a comprehensive Domestic Partner Rights and Responsibilities Act — from benevolent legislators at some point in the past somehow negates the fact that gays are a permanently disadvantaged minority politically (or that there is no basis, under any standard of review, to allow this "just one bit of unfairness" to endure) is as baseless a proposition as the notion that "tradition" is a valid excuse for perpetuating injustice. It is the same sort of cruel drivel that Justice Scalia spewed in his vitriolic Lawrence dissent.

> Similarly, Judge Baxter's dissent, making this same spurious argument (rather obnoxiously — "This is simply not so."), gets it exactly backwards. It is indeed "simply so." The fact that "California gay couples may already have 99% of what California straight couples have" shows not that corrective action is unnecessary, but exactly the opposite: That the missing 1% can only be explained by an improper cause — why deny gays that last 1% of equality except for some impermissible reason? See generally, Romer v. Evans.In conclusion, I never cease to be amazed that anyone, libertarian or not, bigot or not, gay or not, would dare suggest that there is such a thing as a "right to demand that someone else wait for their rights." As I noted earlier, waiting to win more hearts and minds might be skillful pragmatic politics, but it is simply not the moral high ground.

The litigation is In re Marriage Cases, No. S147999 (Supr. Ct. Cal., May 15, 2008) (PDF - 172 pages).