OK, I Know, It's Another Marriage Post!

Well, I said until next time. It's the next time.

Steven Chapman, writing at Real Clear News, thinks that the California Supreme Court is all wrong -- being "judicial activists," even. Here's a quote that I think summarizes the caliber of Chapman's argument:

It's been only eight years since Vermont became the first state to admit same-sex couples to the rights and responsibilities of matrimony through civil unions. It's been only three years since California followed suit by letting gays enter into domestic partnerships.

But all of a sudden, the justices have discovered that their state constitution not only allows but requires that marriage include homosexual couples -- even though in 2000, 61 percent of the state's voters rejected that option.

So that, while Chapman is saying that the pace of change has been fast -- and does mention changing attitudes towards gays and same-sex relationships -- we still need to rely on a referendum that was passed before any of this happened. And note that he omits Massachusetts, which happened now five years ago -- and tell me the citizens of California haven't figured out yet that the world hasn't ended.

Andrew Sullivan thinks that this is a strong argument. I find it shallow and poorly reasoned, as much for what is not included as for what is. As an example, while Chapman makes reference to Bowers vs Hardwick, he neglects to mention Lawrence and Garner vs Texas, which overturned Bowers, and the fact that the majority opinion in that case called Bowers a bad decision from the beginning. We normally call this "cherry-picking your data." And that's the way Chapman's argument is built.

(I readily grant that in an opinion piece one is allowed to do that, but it makes one embarrassingly easy to refute. It does not make for a "strong argument.")

Chapman goes on:

At stake was not whether gay couples may acquire the rights and duties of marriage in a state-sanctioned framework. As the court acknowledged, they can already do so under the domestic partnership law. But it's not enough for them to get the substance of marriage. The court said they must also get the same terminology.

There's a Supreme Court decision that's quite famous, although Chapman doesn't refer to it. And while the California court didn't cite it, wisely sticking solely to California law and precedents, I can't help but think that it informed the majority's thinking on this. That decision is Brown vs Board of Education, which holds that separate institutions are inherently unequal. That has become a point that has permeated American jurisprudence.

Sullivan notes the California court's reliance on Perez vs Sharp, pointing out:

It will be argued that that ruling was based on racial discrimination which has a clear jurisprudential lineage. Applying strict scrutiny to sexual orientation has no such legal precedence.

Unfortunately, he's flat out wrong. One of Sullivan's reader's notes:

Those who would argue the latter are possibly forgetting when Perez was decided. Perez was decided in 1948 before Brown v. Board at a time when "separate but equal" was still the law of the land. There was jurisprudential lineage, but it was all in the opposite direction. Plessy v. Ferguson was good law at the time and stood for the proposition that it was constitutional to enforce racial segregation. Pace v. Alabama was also good law at the time. That was a case that said a law giving far harsher penalties for interracial fornication was constitutional since the law applied equally to both races. As the dissent in Perez noted every single court in the country that had looked at the issue of anti-miscegenation laws had declared them valid (many of the opinions going to say that they were in fact a good thing). The idea of "strict scrutiny" for racial discrimination did exist but was very new being established by the Supreme Court of the US only four years earlier in Korematsu v. US (dealing with internment of Japanese-Americans). But even that only applied to laws which curtailed the rights of a single race.

I'm afraid Chapman's "strong argument" and Sullivan's support of it are both sadly lacking. (And frankly, looking again at Chapman's critique of the court's reasoning, it smacks of the worst of right-wing sidestepping. One reads with the distinct feeling that Chapman a) has not read the opinion; b) doesn't understand the opinion; or c) simply isn't equipped to discuss it intelligently.

This is striking, from the same reader:

Even if you believe one or both cases were incorrectly decided, though, when it comes down to fundamental rights and minorities that have not always been treated justly, it is no virtue for a court to ignore the issue in deference to the wishes of a majority. They should strive instead strive in good faith to apply the constitution regardless of the popularity of the decision. Those that disagree should argue on against the reasoning used and the legal principles applied and not rely on overstated cries of judicial activism.

Chapman falls into the latter group:

The justices would have been wise to mark time while the people of California continued on their path toward full equality for gays. Instead, the court has practically exhorted them to stop the journey. Opponents of gay rights have mounted a drive to put a constitutional amendment on the ballot in November, which stands a good chance of passing.

This is exactly the attitude I have objected to in the writings of B. Daniel Blatt on this subject: let's just wait until it happens all by itself. Y'know what? Ain't gonna. As for Chapman's contention that the court has precipitated the backlash -- please, give me a break. That petition drive was underway long before the California court handed down its opinion. You don't get 1.1 million signatures overnight. If the court had upheld the current restrictions on marriage, or punted to the legislature, the backers of that referendum would still have gone ahead, merely amending their propaganda to note that marriage was under attack by a bunch of elite, out-of-touch elected representatives. Lame, but they've done it before. We are talking about people who want to roll back all civil rights protections for gay citizens. Same-sex marriage is just their best fundraising device.

And for a conclusion, I can't do better than another of Sullivan's readers:

To understand how inexorable the gay movement is, put yourself in the shoes of a social conservative. For as long as they can remember, they’ve won almost every referendum, legislative vote and (despite what they fervently believe) most court decisions. The electoral victories are not even close. And yet the gay movement keeps gaining! If you’re a social conservative, gay people must seem like vampires — they keep driving a stake in our heart and yet we keep coming back.

If you’ve got a heart that strong, Andrew, you pay attention to it.