Prop 8: Where Do We Go From Here? (Updated)

Judge Walker's decision is going to be appealed. We knew that before the trial started. Ran across this from Jonathan Rowe,, via Andrew Sullivan:

The case will very likely be heard by the Supreme Court of the United States. Assuming Kagan is on the bench and the lineup remains, I predict there will be 4 votes for gay marriage, 4 against with Justice Kennedy breaking the tie AGAINST constitutionalizing gay marriage. BUT Kennedy being Kennedy he very likely would “split the baby” by demanding a federal constitutional right to civil unions that grant all the rights of marriage other than the name.

Somehow, the idea of Anthony Kennedy deciding that the word "marriage" should be reserved for heterosexual couples while simultaneously demanding a new right to civil unions seems to me a little far-fetched. (Sullivan calls is "plausible.") I can't think of a basis for it, frankly, and Kennedy will have to have a basis. Given that there is court precedent on the importance of the word itself (I couldn't resist and left a comment in reply to someone who called the distinction "silly"), for Kennedy to come up with a "constitutional right" to something that is inherently unequal is really reaching. (And I can't stress enough that the term "marriage" has a social and cultural importance that far outstrips material rights and privileges.)

And of course, the matter of backlash comes up in the comments, which leads me back to this piece by B. Daniel Blatt, which I touched on a couple of days ago. I've already commented on Blatt's assertion that Walker usurped "the power from the people to decide this issue." It's a power the people don't have and never did. He also quotes this piece from Jonathan Rauch that seems to be based on the same nonexistent power of the people.

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

As far as legal theory goes, the idea that Kagan's statement is right is highly arguable. It's an established principle of American law that the will of the people does not trump Constitutional guarantees.

Back to Blatt. He asserts that Walker's consitutional reasoning is "particularly sloppy" (and isn't it interesting how the determination of the tightness of Walker's reasoning depends on whether you are to the right or left of center?), but doesn't really support that assertion very well, and in fact dodges it to go to into a discussion of sexual difference that completely misses the point. He spends most of the rest of his essay discussing the biological case for sexual difference while completely avoiding the cultural construction of sex roles, which is what is relevant to the discussion. No one is arguing that men and women don't differ biologically, but that's simply not germane here: the point is, as Walker points out in his opinion, that the cultural/social definition of sex roles as they pertain to marriage has changed radically in the past half-century, the end result of a much longer process. The more marriage becomes an egalitarian arrangement, the less justification there is for withholding it from same-sex couples. (And I suspect that is a root cause of much of the disapproval of same-sex marriage -- people will maintain an idea in their minds long after it has ceased to be a reality.)

Update II I'm inserting this here because this is where it fits. See this comment by David Link for a slightly different approach to the question of sex differences. Once again, note that we're talking about culturally determined roles, not biological differences.

OK, I know you're sitting there saying "So what about backlash?" That's a concern in both Rauch's and Blatt's essays, although a subliminal one, implicit in the idea of the people's "right" to decide. Walker made a good case for same-sex marriage not being a "new" right, but merely an extension of a fundamental right to a group that has historically -- at least recently, and in this country -- been excluded. The attitude is at the base of what I call the "Christmas stocking" school of gay rights, to which both Rauch and Blatt adhere: just be a good boy or girl, and Daddy will give you a present.

We've been this route. Doesn't happen that way, although people have a remarkable ability to rewrite history in their heads.



I really don't know what to say about this one -- Jennifer Smetters is an idiot (which does not preclude her being an attorney). There was a groundswell of support for civil rights for racial minorities in the 1960s? Coulda fooled me, and I was there. I remember the marches and the demonstrations and the dogs and the firehoses. The whole states's right thing, as well, is a prime piece of nonsense: this is a federal trial on questions of federal rights guaranteed in the federal constitution. Read the Fouirteenth Amendment again, people. And remember, the federal government intruded itself into states' rights regarding the definition of marriage with the passage of DOMA in 1996. I know Obama sees it as a states' rights issue -- he says (that's only one of the ways he's ducked the question) -- but he also supports full equality, although he opposes marriage. (Axelrod's statement at the beginning of the clip is a travesty.)

It's amazing how much empty verbiage can be generated by one single issue. You can read all the sources yourself and decide if I've got it right on this one.

Update: Under the heading, "Will of the People, Usurping," see this post at Box Turtle Bulletin.

Almost 50 years ago, the California Legislature passed the Rumford Fair Housing Act, which banned discrimination against “colored” renters or buyers. About 2/3 of California voters overturned the Rumford Act when they passed Proposition 14, which, like Proposition 8, amended the California Constitution, this time to say that Californians could refuse to sell or rent to anyone for any reason. Eventually, the Supreme Court ruled that Proposition 14 violated the 14th Amendment, and it didn’t matter if 100% of Californians had voted for it — it was discrimination, and unconstitutional.

For the full context, here's the article that quote is from.

Repeat after me, class: the citizens of the United States have limited sovereignty.