A Stitch in Haste

This is not the first time something judicially monumental has happened whilst I was on vacation. I hope you can find enough commentary on the decision to tide you over for a few days.

I won't lie to you: There is no way I am reading 172 pages of California constitutional interpretation here in my undisclosed location. It will have to wait until I get back.

I can, however, offer two hasty stitches:

1. Tim Sandefur asks what's in a name:

The Court begins by making clear that the question is not whether the state can bar homosexual couples from having the same substantive rights as heterosexual couples, but rather whether the state can establish an identical (or nearly identical) set of substantive rights for each, but only confer the name "marriage" on one and not the other. The entire dispute is about the word "marriage.'
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The only difference is the word the state uses. Do you have a right to a word?

I think on this point, there is room for disagreement, but I would be skeptical. First, if the state were using a word for same-sex marriages that was derogatory or offensive, then there would be a stronger argument that the state was discriminating against them.
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California simply denominates gay marriages "civil unions." Is that really a violation of the rights of gay couples? If so, is it discrimination to refer to people on AFDC or WIC as "welfare recipients"? Is it discrimination to refer to people in wheelchairs as "handicapped"? I find this an implausible ground for a finding of discrimination.

Sandefur is as fine a libertarian legal mind as you'll find, and no enemy of gays. (Again, he is critiquing the decision, not the concept of gay marriage generally.) So my observation is probably best filed away as a lawyer's quibble, but I think his analysis is utterly untenable for a reason that can be summed up in two "just words" — New Jersey.

A New Jersey straight "married" (just a word) couple can have their marriage (just a word) recognized and legally enforced in New York.

A Massachusetts or Canada "married" (just a word) gay couple can, now, have their marriage (just a word) recognized and legally enforced in New York.

A New Jersey gay "civil-unioned" (just a not-quite-word) gay couple cannot have their civil union (just words) recognized and legally recognized in New York. This despite the fact that the New Jersey Supreme Court insisted and demanded that "civil unions" be afforded all (just a word?) the rights and privileges of marriage.

New Jersey tried, and failed, to make marriage "just a word" —

We will not presume that a difference in name alone is of constitutional magnitude.

It was a Sisyphean nightmare then; it is a Sisyphean nightmare now. Marriage, for better or for worse, is not "just a word" in American jurisprudence. That is axiomatic in the exteme.

Note also that Sandefur's suggested qualifier "derogatory or offensive" has nothing to do with it. Full and equal either obtains or it does not; asking, "Is this derogatory or offensive?" is simply not a robust distinction in this context.

Like I said, this is a just a late-night* nitpick; Sandefur's post is really quite good. Do read it.

(*"Late-night"? Did I just give an inadvertent hint as to my undisclosed location?)

2. So while the heroes of Lambda Legal (aided as they often are by the ACLU) were busy actually doing something for gay equality, what was the Human Rights Campaign doing?

They were busy conflating gay marriage with socialized medicine:

In our national debate on health care — we need to remember that in America, health care is a right, not a privilege. Too often that's not true for gay, lesbian, bisexual and transgender Americans. The absence of federal protections, inadequate state laws and inconsistent hospital policies often result in discrimination and inadequate health care for GLBT patients and their families.

The question of fair and equal (not to mention sane and humane) recognition of gay relationships in the context of medical care has nothing, absolutely nothing, to do with the gobbledygook of a "right to health care." To equate gay marriage with socialized medicine is to make gay marriage as evil as socialized medicine. It also marginalizes, as unimportant collateral damage, all those gays who dare not to be radical liberal malcontents. It's worse than "win the battle, lose the war" — it's "win the battle, bomb your allies."

I'm not being entirely fair, of course: HRC did find the time and money to "sign on" (their term) to somebody else's (whom they couldn't bother to identify in their press release) amicus brief. How bold of them. And how much, I wonder, are they asking for in donations for "their" (just a word) "victory" (not just a word)?

If your charitable money is up for grabs, then give it to Lambda, not to HRC. (If you want to be utterly apolitical, then opt for the Point Foundation.)

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

I hope to have a major post on the California gay marriage ruling by the end of the day.

In the meantime, you'll have to settle for this comment left elsewhere, in response to this article:

Wait, I have my very own anonymous, infantile defamer-troll on Hit & Run? Cool. Can't be mocked if you're not read, right?

In any case, some thoughts —

1. Chapman writes:

"But all of a sudden, the justices have discovered that their state constitution not only allows but requires that marriage include homosexual couples"

Let's keep in mind that — unlike legislatures, bureaucracies and majoritarian mobs — courts cannot, upon their own initiative, do anything. A lawsuit was filed (several in fact), the court resolved them. That's about as far from being "activist" as one can get. (Indeed, the majority unambiguously reiterated the court's prior ruling that activist San Francisco mayor Gavin Newsom was flat-out wrong to issue SSM licenses and that those gay marriages remain null and void.)

2. The notion that a group suffering from patent discrimination should "just wait a generation or two" is all well and good when you're not part of that group. I would, qua libertarian, posit that no one ever owes anybody, even their fellow victims (let alone their oppressors) a duty to "grin and bear it." To assert that doing so would be smart politics is one thing; to assert that it's somehow the moral high ground is absurd.

3. Once again we see (not from Chapman but from commenters here and elsewhere) the shameful thesis (paraphrased) that:

Since marriage licenses are not a legitimate function of government, libertarians should embrace irrational and animus-inspired discrimination against an insular minority because that way at least the gays can't get married — and anything that denies a marriage license to anyone is a good thing.

If that's the current pinnacle of libertarian "equal protection" theory, then I'm joining the Workers World Party.

Let the record reflect that I have never suggested, contra my troll, that "gay Marriage is the most important libertarian issue." Indeed, I am beginning to wonder whether anti-gay bigotry is close to being eclipsed by anti-atheist bigotry as the single worst anti-libertarian policy umbrella in America.

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).

"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.

A noteworthy blawger wonders why the "gay marriage bans are sex discrimination" argument never, ever works, not even in California:

It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. ... [T]he Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there's no discrimination.

As I noted in a (slightly revised) comment there:

I, as a gay libertarian, have always found the "it's not sex discrimination" thesis to be the one and only talking point against gay marriage that is totally reasonable and utterly inoffensive.

Straight men and straight women are treated equally (i.e., better than gays). Gay men and gay women are treated equally (i.e., worse than straights). That is simply not "sex discrimination."

Meanwhile, note that California's anti-miscegenation law (like the Virginia version struck down in Loving*) did NOT treat the races equally: Blacks could marry, e.g., Asians, Hispanics and American Indians. Whites could only marry other whites (see Page 86 of In re Marriage Cases**).

If you (correctly) rephrase the anti-miscegenation law as "a non-white may marry outside his race, but a white may not marry outside his race" then the fallacy of the "racial symmetry" argument becomes self-apparent.

That is yet another reason why the right to gay marriage is better rooted in the anti-miscegenation invalidations than in sex discrimination claims.

That's my ruling -- any dissents?

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*Loving v. Virginia, 388 U.S. 1 (1967)
**In re Marriage Cases, No. S147999 (Supr. Ct. Cal., May 15, 2008) (PDF - 172 pages)

One FindLaw columnist responds to another on the California same-sex marriage ruling:

Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. "In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that "[i]n the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."

You can guess which side I team up with:

Amar is wrong — especially where he posits, "rights in our system are, and should be, the products of ultimately majoritarian processes."

B's natural right to his own life is (partially) dependent on A's willingness not to kill him. That is a metaphysical axiom completely independent of the secondary question of whether the society in which A & B live forbids, condones or celebrates murder. But that secondary question — "forbids, condones or celebrates" — does not define B's right; it only succeeds or fails in securing it.

A constitution attempts to reflect, but not does not define, what is proper and improper in a civilized society.

Different constitutions achieve this with greater or less success. To the extent that a constitution fails to achieve its purposes — one of which must surely be "equal protection" (i.e., protecting insular minorities from the tyranny of the majority) — it is defective.

Dorf wonders whether a constitution that, like California's, does not require a supermajority to amend, especially where protection of political minorities is concerned, is inherently suspect. I think that position is defensible.

In any case, the failure to distinguish between, "this law is unconstitutional, hence this law is flawed" and "this law is constitutional, hence the constitution is flawed" mirrors the confusion — from kids voting kids out of kindergarten to U.S. foreign policy celebrating Middle East democracies that elect terrorists to high office — between "democracy as a means to a noble end" (inherently correct) and "democracy as a noble end in itself" (not inherently correct).