A Stitch in Haste

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."
--Plessy v. Ferguson, 163 U.S. 537 (1896)

"In approaching this problem, we cannot turn the clock back to ... 1896 when Plessy v. Ferguson was written. We must consider [it] in the light of its full development and its present place in American life throughout the Nation."
--Brown v. Bd. of Ed. of Topeka, 347 U.S. 483 (1954)

My libertarian (and hardly bigoted) colleague Tim Sandefur has a third post trying to show why the majority in California's In re Marriage Cases is wrong, this time trying to address the "separate but equal" question.

Sandefur's thesis is built upon the following premises:

1. The California civil union regime is "equal" in a way that Plessy's "equal" was not:

Plessy embraced the purely theoretical — and factually absurd — idea that the separate accommodations were in fact equal. In repudiating Plessy, the Brown Court found that even if those accommodations were actually equal, which everyone knew was not the case, it was still unconstitutional because separate is inherently unequal.

But as I've noted previously, the civil union regime is, as a question of legal entitlements (and not just nomenclature), not at all equal to civil marriage. For instance:

-- A civil union gay couple cannot have their status recognized in New York, while a married gay couple can.

-- A civil union gay couple has no legal standing to challenge the federal Defense of Marriage Act, while a married gay couple (presumably) can.

-- A civil union gay couple bears the burden of having to explain and enforce their legal rights to third parties (e.g., at the hospital) in a way that a married gay couple does not (cf., this post).

-- A gay individual in a civil union faces potential privacy incursions by having to disclose her civil union status (since, with a puny handful of exceptions, only gays can enter into California civil unions, having to disclose that status — e.g., on an insurance form — by definition forces the individual to disclose her sexual orientation).

So the situation here is not better-than-Plessy ("everyone knew was not the case") but indeed worse-than-Plessy (objectively demonstrable never to be the case). And a fact pattern that is "more Plessy than Plessy itself was" surely deserves at least as "Brown" a remedy as Brown itself was.

2. The California civil union regime is not "separate" in a way that Plessy's "separate" was:

People were literally separated from one another. Here, gays and straights intermix easily, with no discrimination against their substantive rights, whether it be in schools, at the lunch counters (if those exist anymore) or the water fountains.

Sorry, but that's hopeless sophistry. In the language of Brown, 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?

3. The use of the term "civil union" instead of "marriage" was not derogatory:

Had California chosen to denominate such partnerships by an offensive term, the argument might be stronger, but there are legitimate, nondiscriminatory reasons for using the term. Whether those reasons are enough to persuade you or me to agree that these unions should be called "civil unions" instead of "marriages" is not relevant — what's relevant is whether there are sufficiently good reasons to allow the majority to decide on that issue.

So now the test is not "separate but equal" but rather "separate but offensive"? Again, 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. As Point 1 above demonstrates, the civil union regime for gays is irreparably unequal from the marriage regime for straights. No further hurdles need be cleared.

(Note that Brown framed the effect of school segregation in terms of stigmatization, not offensiveness. Is not the whole point, or at least the unintended effect, of denying gays access to the legal status of marriage to stigmatize them?)

And even if one did accept the premise that "offensiveness" were somehow relevant to the constitutional analysis, would not the next obligatory question be, as the excerpts I opened this post with demonstrate, "Offensive to whom?" If one answers, "offensive to the majority," then the whole exercise collapses upon itself and we're right back to the initial question of whether insular minorities deserve counter-majoritarian protection from ("activist") judges in the first place. Meanwhile, if one answers, "offensive to the minority at issue" — well, how does Sandefur think most gays would answer that question?

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UPDATE: Sandefur replies here. Our differences seem to reduce down whether my examples of how marriage is legally distinguishable from civil union actually count as a matter of constitutional interpretation. You'll not be surprised that I find his reasoning unpersuasive. Sandefur also misunderstands my point about "offensiveness." I am not arguing that the correct standard is "offensive from the perspective of the minority rather than the majority." I am arguing that offensiveness (or the lack thereof), from the perspective of either the majority or the minority, is totally irrelevant; "inoffensive but unequal" is still unequal -- and therefore impermissible.