November 20, 2008
It is ironic that after the passage of Proposition 8, the "California Marriage Protection Act," on November 4, its opponents singled out the Mormon Church as the first target of their anger. In 1846, the Mormons were forced out of Illinois by an act of the state legislature for practicing an alternative to traditional marriage, polygamy. Decades later, they were coerced both by the federal courts and by military force into repudiating this core religious belief in order to win statehood for Utah, their refuge. This fall, the church spent $20 million to influence voters to impose a single official definition of marriage on all citizens.
Wouldn't you think that both Mormons and gay-marriage advocates would recall their respective histories of persecution and exclusion at the hands of government?
What is telling about the Proposition 8 campaign and its aftermath is the resemblance to religious wars. The framers of the U.S. Constitution remembered the devastation caused by state- supported religion in Europe and wrote religious liberty into its First Amendment. Of course, this did not eliminate the restriction and even persecution of religious groups by legislatures and courts, as Mormon history readily attests, but it laid down a principle of equality and tolerance that is refining judicial decisions to this day.
The same could be true of the marriage wars. Were a state to disestablish marriage, recognizing it as a fundamental right but refusing to endorse any particular form of it, it could defuse the battles that have grown more fierce and costly with each round.
In deliberating the case for same-sex marriage last year, the California State Supreme Court considered just such a step. It asked state Attorney General Jerry Brown whether under California law, the legislature could "change the name of the legal relationship of ‘marriage' to some other name, assuming the legislation preserved all of the rights and obligations now associated with marriage" — that is, a name that could equally apply to all conjugal contracts regardless of gender. Brown responded yes, because "the words ‘marry' and ‘marriage' have no essential constitutional significance under the California Constitution."
In a brief submitted to the court on August 31, 2007, he spelled out the state's argument: "The State does not deny the significance of marriage as a social and spiritual idea; after all, marriage existed long before the State of California ever recognized it in a statute. The state does not create a marriage: From antiquity, Western society has recognized that a marriage is created by the witnessed interpersonal commitment of the two persons themselves. The state can only give a marriage standing in the law. The only institution at issue in these proceedings is the state-sanctioned regime to which the label ‘marriage' has been attached in statute."
Thus, "so long as the Legislature ensures that all rights and benefits enjoyed by married couples under the law are also available to domestic partners — including, most importantly, the right to self-declaration and public legitimation of one's life- partnership," it could "employ a ‘neutral' term to describe state-sanctioned life-partnerships regardless of the couple's sex."
Though courts both state and federal have established a fundamental right to marry, the attorney general continued, "the focus was on the relationship of the couple, not the verbiage used on state legal forms." Further, the arguments of both parties to the case that a neutral legal term would diminish the honored place of marriage in society "are not arguments of a constitutional status."
The reason both parties agreed (in opposite ways) on this point of "honor" is that both were seeking state approval of their own particular definitions of marriage. As Brown noted, "the meaning of marriage comes from the understanding that it has been given in our society." But at this point in our social history there is no universally agreed-upon meaning of the term — even within some religious groups.
With this information, the court could have taken the bold step of disestablishing marriage, letting the many and various societal groups embrace their own definitions and restricting state involvement to the administration and adjudication of a universal family contract available to all couples regardless of gender or even implied sexual activity, including dependent or interdependent blood-relatives and friends who also deserve the rights and benefits presently reserved to the married and to domestic partners.
Such a move would have turned the question of the meaning of marriage back to the social and religious communities from which the institution arose and to whom it properly belongs. Rather than detract from the honored status of marriage, it would have allowed all societal groups to honor it in their own way. It would have mooted the well-taken point that denying the term "marriage" to gay couples makes them "second-class citizens" by making all couples simply citizens, equally. Further, it would have put the capstone on the right to privacy by denying state approval to particular sexual life-styles and focusing its attention on the family unit, no matter how it is constituted — something that California family law in fact does anyway.
Instead, the court bought the honored-place argument, the one the attorney general said had no constitutional status. After 120 pages of opinion, it came down to that.
Whether or not a neutral stance would have quelled the marriage wars is hard to determine — there would have been much residual frustration on both sides for neither getting their way — but at least it would have pointed them toward an authentic recognition of the diversity in our society and encouraged everyone to respect it.
Showing posts with label gay marriage. Show all posts
Showing posts with label gay marriage. Show all posts
Tuesday, November 18, 2008
Saturday, September 6, 2008
THE MARRIAGE WARS, PART III
June 12, 2008
Now the marriage wars are really heating up.
On June 2, the California Secretary of State announced that the initiative measure to inscribe an exclusively heterosexual definition of marriage into the state Constitution will qualify for the November ballot. If passed, the amendment would trump the California Supreme Court’s May 15 ruling that expands the legal designation "marriage" to include same-sex couples, since now the word would be explicitly defined in the determinative document of the state.
The day before the California court’s decision, New York Governor David Paterson nationalized the issue by ordering all state agencies to treat as marriage every type of unitive contract from any state, no matter what it is called — marriage, domestic partnership, civil union. This highly creative directive makes an end-run around both the state’s high court, which in 2006 left the definition of marriage to the legislature, and the legislature itself, which has been deadlocked on a gay-marriage bill ever since. Though Paterson’s order will not affect court-related matters such as child custody, it is expansive enough to include, as the New York Times described it, "everything from joint filing of income tax returns to transferring fishing licenses between spouses."
And then, to further demonstrate the repercussions of one state’s marriage policy on others’, ten state attorneys general petitioned the California Supreme Court to stay the June 17 implementation date of its gay-marriage ruling, pending the results of the November amendment initiative; the AG’s feared being buried in an avalanche of legal challenges from gay couples who would drop in for a marriage license in California, which has no residency requirement, then press for validation from their own states. The Court turned them down.
So the circle gets wider and wider: more litigation, more legislation, more bitter contention, for a very long time to come.
In my two previous columns, I suggested that this legal morass would dissolve if states would disestablish marriage as the U.S. Constitution disestablished religion, affirming marriage as a fundamental civil right but declining to endorse any particular form of it. They would abolish their marriage and civil-union/domestic-partnership laws in favor of a universal contract with a neutral name, open to any two consenting adults regardless of sex or even implied sexual activity, with the full range of rights, benefits, and responsibilities formerly accorded only to marriages.
Officially disestablishing marriage would not be a contrary step; it would in fact most accurately reflect the changes that have been spontaneously occurring in American society over the last 40 years.
Nancy F. Cott, in her book Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000), describes this organic development: "By analogy," she writes, "one could argue that the particular model of marriage which was for so long the officially supported one has been disestablished. Continuing the analogy to religious disestablishment, one could say that with the weight of the one supported faith lifted, plural acceptable sexual behaviors and marriage types have bloomed." She compares our situation with that of early America, "when laws regulating marriage were on the books everywhere but the more effective validation of marriage came from local communities."
The pragmatic reasons for taking the logical step to disestablishment are summarized by Mark Poirot, a professor of law at Seton Hall University in New Jersey and an expert on gay-rights legal issues: "From the point of view of moderating cultural conflict and removing the culture war over marriage from the temptation of interminable battling over control of various territorial jurisdictions, perhaps another version of disestablishment should be considered: the state would no longer marry anyone, and would relegate the culture war over marriage to the private sphere altogether. In other words, the state would cease to provide the contested public good of the status of civil marriage, period."
From the perspective of public good, both governmental and private-sector policy has also decisively shifted away from supporting marriage per se and toward supporting family in its many forms as the fundamental good. Single parents, adoptive parents, and even (as in Salt Lake City’s health-care plan) dependent "adult designees" of a person’s choosing are increasingly being accorded the benefits and rights previously reserved to the married. And, as Nancy D. Polikoff, in her detailed study, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press, 2008) points out: "A legal system in a pluralistic society that values all families should meld as closely as possible the purposes of a law with the relationships that that law covers. Marriage is not the right dividing line."
Polikoff asserts that the gay-marriage movement has shunned the needs of the wider alternative community by, ironically, employing the same argument as their traditionalist foes: that marriage retain preferred legal status over other kinds of family relationships. "While the movement for marriage equality has insisted it is fighting for same-sex couples to have the choice to marry, marriage is not a choice if it is the only way to achieve economic well-being and peace of mind." Instead, Polikoff calls for a single contract and body of laws encompassing every form of dependent or interdependent relationship — a "civil partnership," she calls it.
The idea of abolishing civil marriage has yet to exert much force in the marriage wars. There is still a presumption, both in the popular mind and in the body of judicial rulings, that government is either the guardian of a uniform divine or natural law or itself the creator of marriage. History has shown that neither of these positions is the case. Marriage in its essence and its interpretations — in its sexuality, psychology, spirituality, and communality — lies far beyond government’s control. The California Supreme Court’s majority opinion that civil marriage is necessary "to publicly and officially express one’s love" oversteps the legitimate function of law, which is to adjudicate contracts and protect families. Love is best expressed in the community, not the courthouse.
Marriage is a reality too intimate to suffer the pettiness of politics. As Harvard law professor Stephen Carter puts it: "Official acknowledgment of marriage causes enormous difficulty. One of the difficulties it causes is that marriage, precisely because of its honored status, becomes a prize for which people fight in the political arena instead of a part of the sacred side of life."
The public battle over marriage is destructive to the national fabric. It is also unnecessary. For the sake of the institution of marriage, the institution of government should get out.
Now the marriage wars are really heating up.
On June 2, the California Secretary of State announced that the initiative measure to inscribe an exclusively heterosexual definition of marriage into the state Constitution will qualify for the November ballot. If passed, the amendment would trump the California Supreme Court’s May 15 ruling that expands the legal designation "marriage" to include same-sex couples, since now the word would be explicitly defined in the determinative document of the state.
The day before the California court’s decision, New York Governor David Paterson nationalized the issue by ordering all state agencies to treat as marriage every type of unitive contract from any state, no matter what it is called — marriage, domestic partnership, civil union. This highly creative directive makes an end-run around both the state’s high court, which in 2006 left the definition of marriage to the legislature, and the legislature itself, which has been deadlocked on a gay-marriage bill ever since. Though Paterson’s order will not affect court-related matters such as child custody, it is expansive enough to include, as the New York Times described it, "everything from joint filing of income tax returns to transferring fishing licenses between spouses."
And then, to further demonstrate the repercussions of one state’s marriage policy on others’, ten state attorneys general petitioned the California Supreme Court to stay the June 17 implementation date of its gay-marriage ruling, pending the results of the November amendment initiative; the AG’s feared being buried in an avalanche of legal challenges from gay couples who would drop in for a marriage license in California, which has no residency requirement, then press for validation from their own states. The Court turned them down.
So the circle gets wider and wider: more litigation, more legislation, more bitter contention, for a very long time to come.
In my two previous columns, I suggested that this legal morass would dissolve if states would disestablish marriage as the U.S. Constitution disestablished religion, affirming marriage as a fundamental civil right but declining to endorse any particular form of it. They would abolish their marriage and civil-union/domestic-partnership laws in favor of a universal contract with a neutral name, open to any two consenting adults regardless of sex or even implied sexual activity, with the full range of rights, benefits, and responsibilities formerly accorded only to marriages.
Officially disestablishing marriage would not be a contrary step; it would in fact most accurately reflect the changes that have been spontaneously occurring in American society over the last 40 years.
Nancy F. Cott, in her book Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000), describes this organic development: "By analogy," she writes, "one could argue that the particular model of marriage which was for so long the officially supported one has been disestablished. Continuing the analogy to religious disestablishment, one could say that with the weight of the one supported faith lifted, plural acceptable sexual behaviors and marriage types have bloomed." She compares our situation with that of early America, "when laws regulating marriage were on the books everywhere but the more effective validation of marriage came from local communities."
The pragmatic reasons for taking the logical step to disestablishment are summarized by Mark Poirot, a professor of law at Seton Hall University in New Jersey and an expert on gay-rights legal issues: "From the point of view of moderating cultural conflict and removing the culture war over marriage from the temptation of interminable battling over control of various territorial jurisdictions, perhaps another version of disestablishment should be considered: the state would no longer marry anyone, and would relegate the culture war over marriage to the private sphere altogether. In other words, the state would cease to provide the contested public good of the status of civil marriage, period."
From the perspective of public good, both governmental and private-sector policy has also decisively shifted away from supporting marriage per se and toward supporting family in its many forms as the fundamental good. Single parents, adoptive parents, and even (as in Salt Lake City’s health-care plan) dependent "adult designees" of a person’s choosing are increasingly being accorded the benefits and rights previously reserved to the married. And, as Nancy D. Polikoff, in her detailed study, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press, 2008) points out: "A legal system in a pluralistic society that values all families should meld as closely as possible the purposes of a law with the relationships that that law covers. Marriage is not the right dividing line."
Polikoff asserts that the gay-marriage movement has shunned the needs of the wider alternative community by, ironically, employing the same argument as their traditionalist foes: that marriage retain preferred legal status over other kinds of family relationships. "While the movement for marriage equality has insisted it is fighting for same-sex couples to have the choice to marry, marriage is not a choice if it is the only way to achieve economic well-being and peace of mind." Instead, Polikoff calls for a single contract and body of laws encompassing every form of dependent or interdependent relationship — a "civil partnership," she calls it.
The idea of abolishing civil marriage has yet to exert much force in the marriage wars. There is still a presumption, both in the popular mind and in the body of judicial rulings, that government is either the guardian of a uniform divine or natural law or itself the creator of marriage. History has shown that neither of these positions is the case. Marriage in its essence and its interpretations — in its sexuality, psychology, spirituality, and communality — lies far beyond government’s control. The California Supreme Court’s majority opinion that civil marriage is necessary "to publicly and officially express one’s love" oversteps the legitimate function of law, which is to adjudicate contracts and protect families. Love is best expressed in the community, not the courthouse.
Marriage is a reality too intimate to suffer the pettiness of politics. As Harvard law professor Stephen Carter puts it: "Official acknowledgment of marriage causes enormous difficulty. One of the difficulties it causes is that marriage, precisely because of its honored status, becomes a prize for which people fight in the political arena instead of a part of the sacred side of life."
The public battle over marriage is destructive to the national fabric. It is also unnecessary. For the sake of the institution of marriage, the institution of government should get out.
THE MARRIAGE WARS, PART II
May 29, 2008
In last week’s column, I wrote that the California Supreme Court’s May 15 decision extending the official designation of "marriage" to same-sex couples only heated up the marriage wars and guaranteed protracted litigation and legislation on all levels of government for years to come.
In this 5-4 determination, the majority held that California’s domestic partnership law, though virtually identical to its marriage statutes, violates the state Constitution’s equal protection provision by "denying the official family relationship of same-sex couples the equal dignity and respect that is a core element in the constitutional right to marry." The minority opinions contended that it was up to the voters, not the courts, to determine the legal definition of marriage.
Both of these viewpoints have their own merits; neither of them will solve the problem. Advocates of traditional marriage will ask California voters to approve a constitutional amendment defining marriage as the union of one man and one woman, thus overruling the court’s decision; if this succeeds, advocates of gay marriage will bring the battle to the federal courts as a civil-rights issue.
Whatever the outcomes, and there will be many, any governmental decree or popular vote favoring one definition will alienate and enfuriate those who believe in another. Tinkering with marriage is not like tinkering with the tax code. The meaning of marriage involves people’s deepest personal feelings and religious convictions, and when the state treads in this realm, it treads on hallowed ground.
Is there a solution to this controversy? Yes: to disestablish marriage, just as the U.S. Constitution disestablished religion. Recognizing that the state’s primary interest lies in enforcing contracts and encouraging and protecting stable personal and family relationships in multiple configurations, it would eliminate its marriage laws and enact a universal, neutrally-named law applicable to all contracting couples regardless of sex or even sexual activity. It would affirm the fundamental right to marry but let individuals, religious organizations, and other social groups determine for themselves what marriage itself is.
Extracting the state from the marriage business is not as far-fetched an idea as it may at first sound. Until relatively recently in the West, marriage was primarily the domain of family, community, and church; the state had little to do with it aside from the practicalities of settling questions of money. In England, Parliament’s first major incursion into marital matters did not occur until 1753, when Lord Hardwicke’s Marriage Act tried to abolish do-it-yourself or "common-law" marriages, requiring a license and a Church of England wedding (except for Jews and Quakers). The Act — designed more easily to resolve inheritance disputes — was roundly ignored by those whose children had nothing to inherit.
In the early years of the United States, monogamous marriage was seen by many in public office as part of the national identity as a "White Christian society," and legislation to standardize it began to accumulate on the books. In her concise and insightful study, Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000), Nancy F. Cott writes: "At the outset, state laws set a few, known boundaries — solemnization took a certain form; marriages could not be bigamous or incestuous or terminated at will; adultery and fornication were crimes." Even then, it was the local communities — the "informal public," Cott calls them — that substantially regulated their own conjugal conventions. "A community’s shared belief in the morality and utility of its marriage practices forms part of its sense that it is a community," she writes. "The informal public exercised the forces of approval and condemnation that shaped prospective and married couples’ behavior." Thus cohabitation, and marriages between whites and non-whites, were routinely accepted in certain communities while officially prohibited by their state’s laws.
As American society began to homogenize after the Civil War, state legislatures sought increasing control over both marriage and non-marital sexual practices. In some cases, they liberalized local customs by expanding the grounds for divorce and recognizing a wife’s right to her own property. In others, they constricted them, often oppressively, by withdrawing legitimation to common-law unions and the children that came from them, and by criminalizing interracial marriages, homosexual acts, contraceptive use, and — conspicuously in Mormon Utah’s case — polygamy. By the twentieth century, both federal and state governments were also using the economic tools of the tax code and social welfare programs to promote monogamous marriage.
For all that, marriage remained a creature of culture; the effectiveness of the laws depended upon a uniform national consensus on what marriage and acceptable sexual behavior were and were not. When the consensus began to break down in the 1960’s, the web of morality-legislation quickly disintegrated. As courts identified and refined the right to privacy, laws prohibiting all manner of consensual sexual relations both within and outside of marriage were struck down, the adverse legal consequences of out-of-wedlock birth were eliminated, the exemption for spousal rape was removed, and non-consummation as grounds for nullity was obviated by no-fault divorce.
Further detaching the state from marriage, other forms of family relationships were accorded legal status in many or most jurisdictions: Unmarried parents were held to the same responsibilities of support for their children as married couples; adoption was extended to single people and in some states to same-sex couples; and "domestic partners" — not only same-sex couples but widowed persons over age 62 (to retain survivorship privileges) and in some instances even blood-relatives — were granted rights and benefits similar or identical to those formerly reserved to the married.
Thus marriage is now regarded by the laws of progressive states as one form of family relationship among others. Arguments for a privileged status for traditional marriage still advanced by some jurists and legislators — monogamous procreation, households headed by the biological parents — have de facto been done away with by modern family law. Add to this the resurgence of the open practice of polygamy among Mormons and some Muslims, and it is clear that culture is regaining its ancient control of marriage,and the state is now helpless to define it. If the Episcopal Church, to use only one example, cannot uniformly do it, how can a court, legislature, or referendum do it?
The only equitable solution is the separation of marriage and state. I’ll explore the practicalities of this idea next week.
In last week’s column, I wrote that the California Supreme Court’s May 15 decision extending the official designation of "marriage" to same-sex couples only heated up the marriage wars and guaranteed protracted litigation and legislation on all levels of government for years to come.
In this 5-4 determination, the majority held that California’s domestic partnership law, though virtually identical to its marriage statutes, violates the state Constitution’s equal protection provision by "denying the official family relationship of same-sex couples the equal dignity and respect that is a core element in the constitutional right to marry." The minority opinions contended that it was up to the voters, not the courts, to determine the legal definition of marriage.
Both of these viewpoints have their own merits; neither of them will solve the problem. Advocates of traditional marriage will ask California voters to approve a constitutional amendment defining marriage as the union of one man and one woman, thus overruling the court’s decision; if this succeeds, advocates of gay marriage will bring the battle to the federal courts as a civil-rights issue.
Whatever the outcomes, and there will be many, any governmental decree or popular vote favoring one definition will alienate and enfuriate those who believe in another. Tinkering with marriage is not like tinkering with the tax code. The meaning of marriage involves people’s deepest personal feelings and religious convictions, and when the state treads in this realm, it treads on hallowed ground.
Is there a solution to this controversy? Yes: to disestablish marriage, just as the U.S. Constitution disestablished religion. Recognizing that the state’s primary interest lies in enforcing contracts and encouraging and protecting stable personal and family relationships in multiple configurations, it would eliminate its marriage laws and enact a universal, neutrally-named law applicable to all contracting couples regardless of sex or even sexual activity. It would affirm the fundamental right to marry but let individuals, religious organizations, and other social groups determine for themselves what marriage itself is.
Extracting the state from the marriage business is not as far-fetched an idea as it may at first sound. Until relatively recently in the West, marriage was primarily the domain of family, community, and church; the state had little to do with it aside from the practicalities of settling questions of money. In England, Parliament’s first major incursion into marital matters did not occur until 1753, when Lord Hardwicke’s Marriage Act tried to abolish do-it-yourself or "common-law" marriages, requiring a license and a Church of England wedding (except for Jews and Quakers). The Act — designed more easily to resolve inheritance disputes — was roundly ignored by those whose children had nothing to inherit.
In the early years of the United States, monogamous marriage was seen by many in public office as part of the national identity as a "White Christian society," and legislation to standardize it began to accumulate on the books. In her concise and insightful study, Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000), Nancy F. Cott writes: "At the outset, state laws set a few, known boundaries — solemnization took a certain form; marriages could not be bigamous or incestuous or terminated at will; adultery and fornication were crimes." Even then, it was the local communities — the "informal public," Cott calls them — that substantially regulated their own conjugal conventions. "A community’s shared belief in the morality and utility of its marriage practices forms part of its sense that it is a community," she writes. "The informal public exercised the forces of approval and condemnation that shaped prospective and married couples’ behavior." Thus cohabitation, and marriages between whites and non-whites, were routinely accepted in certain communities while officially prohibited by their state’s laws.
As American society began to homogenize after the Civil War, state legislatures sought increasing control over both marriage and non-marital sexual practices. In some cases, they liberalized local customs by expanding the grounds for divorce and recognizing a wife’s right to her own property. In others, they constricted them, often oppressively, by withdrawing legitimation to common-law unions and the children that came from them, and by criminalizing interracial marriages, homosexual acts, contraceptive use, and — conspicuously in Mormon Utah’s case — polygamy. By the twentieth century, both federal and state governments were also using the economic tools of the tax code and social welfare programs to promote monogamous marriage.
For all that, marriage remained a creature of culture; the effectiveness of the laws depended upon a uniform national consensus on what marriage and acceptable sexual behavior were and were not. When the consensus began to break down in the 1960’s, the web of morality-legislation quickly disintegrated. As courts identified and refined the right to privacy, laws prohibiting all manner of consensual sexual relations both within and outside of marriage were struck down, the adverse legal consequences of out-of-wedlock birth were eliminated, the exemption for spousal rape was removed, and non-consummation as grounds for nullity was obviated by no-fault divorce.
Further detaching the state from marriage, other forms of family relationships were accorded legal status in many or most jurisdictions: Unmarried parents were held to the same responsibilities of support for their children as married couples; adoption was extended to single people and in some states to same-sex couples; and "domestic partners" — not only same-sex couples but widowed persons over age 62 (to retain survivorship privileges) and in some instances even blood-relatives — were granted rights and benefits similar or identical to those formerly reserved to the married.
Thus marriage is now regarded by the laws of progressive states as one form of family relationship among others. Arguments for a privileged status for traditional marriage still advanced by some jurists and legislators — monogamous procreation, households headed by the biological parents — have de facto been done away with by modern family law. Add to this the resurgence of the open practice of polygamy among Mormons and some Muslims, and it is clear that culture is regaining its ancient control of marriage,and the state is now helpless to define it. If the Episcopal Church, to use only one example, cannot uniformly do it, how can a court, legislature, or referendum do it?
The only equitable solution is the separation of marriage and state. I’ll explore the practicalities of this idea next week.
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.
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.
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