THE MARRIAGE WARS, PART I

May 22, 2008

The marriage wars are heating up again.
Last week’s decision by the California Supreme Court to summarily extend the official definition of the word "marriage" to same-sex couples has not only ignited the already-smoldering movement to place the traditional definition of marriage into the state Constitution but has de facto shoved the question into the national election campaigns.
The California decision was essentially framed along the lines of that of the only other state supreme court to mandate gay marriages, Massachusetts: as an issue of civil rights. The argument can be summarized by syllogism: (1) the State of California recognizes marriage as a fundamental civil right; (2) Some Californians call same-sex unions "marriage"; (3) Therefore, the State of California must recognize same-sex marriage as a fundamental civil right.
Despite the meticulousness and indeed brilliance of the majority opinion, written by Chief Justice Ronald M. George, there is a critical flaw of logic in the syllogism. The flaw lies in the principle of formal logic that one cannot reason from a particular to a universal, only from a universal to a particular. Just because some Californians call same-sex unions marriage does not mean that their definition of marriage is applicable to all.
In the opinion, George took the opportunity to assert in the strongest terms that discrimination on the basis of sexual orientation is identical to discrimination on the basis of race or gender, based on the equal-protection clause of the Fourteenth Amendment of the U.S. Constitution. Even though California’s Domestic Partnership Act is virtually equivalent to its marriage statutes in terms of the rights, benefits, and responsibilities granted to registered same-sex couples, the court concluded that it is discriminatory because it establishes a separate-but-equal two-tiered system, implying that these couples are "second-class citizens" compared to the traditionally married. The court’s way of rectifying this perception was to overturn present state law defining marriage as the union of one man and one woman.
This still does not resolve the logical flaw.
The California court, like Massachusetts’, agreed with the argument of gay-rights proponents that denying the legal designation of "marriage" to same-sex couples is parallel to cases of racial or sexual discrimination, most notably in marriage law. It characteristically cited the U.S. Supreme Court’s decision, Loving v. Virginia of 1967, and its prescient California predecessor, Perez v. Sharp of 1948, which struck down state laws barring interracial marriage. But these are bad comparisons, because the essence of the present question, the definition of the word "marriage," was never addressed in these cases. What was addressed was whether a Black person was an inherently different form of human being than a White person, a fundamental issue of what it means to be human. Marriage, on the other hand, is not a human characteristic but a social institution, a creature of culture. Whether or not to officially apply the term "marriage" to same-sex couples is thus not first a question of civil rights but one of cultural consensus — two very different things.
This is why the dissenting opinions of Justice Marvin R. Baxter and Carol A. Corrigan make better sens. "In my view," Corrigan wrote, "California should allow our gay and lesbian neighbors to call their unions marriage. But I, and this court, must acknowledge that a majority of Californians hold a different view and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not."
And this is what will happen next, just as it is happening all over the country. Opponents of gay marriage will introduce bills and ballot initiatives to define marriage constitutionally as the union of one man and one woman. As many California legal experts have pointed out, an amendment to the state Constitution will effectively invalidate the Supreme Court’s decision, since the role of the court is to interpret the Constitution, not countermand it.
Then enter the federal courts, with their powers to review state constitutions for conformity to the U.S. Constitution. That’s when the real fun begins. The framers of the federal Constitution devoted not a single word to marriage, leaving the regulation of this institution to the states. The federal government has itself weighed in with its Defense of Marriage Act of 1996, prohibiting same-sex couples from receiving federal benefits and guaranteeing the right of individual states to choose not to recognize gay marriages contracted in other states — but this law too will surely come up for judicial review.
The marriage wars, if conducted in their present form, will roil courts and legislatures at all levels for years to come. There is, however, a solution to the problem, which the California court hinted at but which no legislative or judicial body has yet enacted.
I’ll explore this solution next week.