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Posts Tagged ‘838’

How Full the Glass?

May 28th, 2009 No comments

As I explained in my two posts on the Prop 8 decision (analyzing the majority and dissenting opinions), I was disheartened by the court’s retreat from the principle of equality it had so eloquently championed in In Re Marriage Cases. Dale Carpenter, among others, agrees with me on at least this point.

Not everyone sees the glass so empty, though. A regular reader invited me to comment on this reaction, from one of Andrew Sullivan’s readers:

“Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as ‘marriage,’ but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish.

“Being able to lay claim to the word ‘marriage’ is important, but in all other respects this appears to be a spectacular decision in favor of gay rights.

“The decision leaves intact the holding of the Marriage Cases that gays have the fundamental ‘right to marry’ under the California constitution, now and in the future; but unless and until the California constitution is again amended to the contrary, such unions cannot be called marriage.

“Opponents of gay civil union rights could try another ballot initiative to expressly amend the constitution to ban such rights, but under the Court’s ruling, that proposed amendment would have to ban such rights expressly to be effective. The Court’s opinion makes clear that generally, amendments will not be interpreted to repeal constitutional rights by implication. The disfavor of repeal by implication is a longstanding legal principle, and the Court’s use of it here is a deft way of sending this issue back to the political process while upholding gay civil union rights for the foreseeable future.  Under this approach by the Court, opponents of gay civil union rights would have to word any future proposed amendments in such a way as to expressly ban gay civil union rights, and as a result, their ability to secure a sufficient number of petition signatures to get the amendment on the ballot, and then a majority of votes at the polls, will be all the more difficult.

“This is a very, very good day for the cause of gay marriage rights.”

I think the nub of our disagreement is this: I’m concerned about the constitutional implications of the court’s willingness to jettison the principle of true equality based on a simple majority vote (even though, it must be said, there is some precedential support for its holding), while this reader sees things from a practical standpoint: All of the rights are still intact, and any effort to further limit them will have to be carefully crafted. Moreover, the court will read any restrictions very strictly, and might even be unwilling to support further compromises to equality.

This reader is probably right as to most of the above. But as I’ve stated, I don’t know (nor can anyone) how far the court would be willing to go in supporting more far-reaching restrictions on the rights of the GLBT community, including revoking domestic partnership protections. Indeed, the majority expressly stated that it was not going to decide that issue. The court is doubtless hoping it won’t have to deal with a “parade of horribles,” but hope is hardly a sound principle for constitutional decision-making. In my view, the court’s actions revealed principle to be rhetoric, expendable at the first sign of trouble (read: the prospect that the justices might not be retained when they next appear on the ballot).

Now comes the federal lawsuit. More on this presently.

Prop 8 Decision Set for Tuesday, May 26: One More Thought

May 22nd, 2009 No comments

Well, this time it’s really happening: Next Tuesday, we’ll return from the holiday weekend to face the (probably funereal) music, as the California Supreme Court has announced the filing of its opinion in the Proposition 8 case for that date (see embedded link).

Just a couple of days ago, speculation that the opinion was about to issue caused me to issue this post. There, I suggested questions that the court would likely need to answer in deciding that the ballot initiative process had been properly used in passing Prop 8, which  purports to amend the state’s constitution to deprive same-sex couples of a right — marriage — that the court had just stated was “fundamental.”

To those thoughts, let me just add a quick supplement here. It will be interesting to see how the court handles the question of domestic partnership — the marriage equivalent without the name or the social approbation —  that remains in effect in California after Prop 8. In their decision in In Re Marriage Cases, the justices weren’t gulled by the argument that domestic partnership was “just as good” as marriage. Although there are many problems with the status, the court leveled the most telling criticism at it: If it’s just the same thing, why  go to the trouble to create it? The whole idea is to fence same-sex couples out, thereby purposefully creating a class of second-class citizens. In one sense (not a practical one), this is even worse than a complete denial of marriage benefits to same-sex couples, which at least have been supported with legal and social arguments (however weak).

Yet during the oral argument in March (I live-blogged it here), at least one Justice (Kennard) seemed to suggest that Prop 8 might be less objectionable because it doesn’t remove the rights of marriage, “just” the title. Will the court stand on that point? If so, what was all the shouting about last year?

Look for a summary here shortly after the opinion issues.

Dignity: Who Has It, and Why Do We Care (or, Dignity, Schmignity?)

May 11th, 2009 No comments

How much would I care about my dignity if no else had any, either?

The question scarcely makes any sense, because dignity is valued only in relation to others, of course. It’s closely related to “esteem,” a regard in which most of us want to be held; I’d rather be the “estimable me” than not.

The matter of dignity came to mind earlier today when reading an account of yet another marriage equality update, this one at the New York City Bar late last week.  (H/t Michael Ginsborg) Towards the end of the program, Katherine Franke, a Columbia law professor, was sounding a cautionary note about the amount of time and effort devoted to the issue. One problem with this “marriage-equality-eats-through-everything” approach is that it runs the substantial risk of marking for inferior treatment other forms of family. That’s right, and as Nancy Polikoff, in particular, has eloquently argued, we need to “value all families,” however defined, and to create structures that respond to people’s real needs. (BTW, here is her analysis of what’s going on in D.C., complete with discussion of parts of related District laws that “value all families.”)

To Franke, the idea that marriage “ennobles and enriches human life” is limiting: “[T]o cloak marriage in this kind of teleological frame that all of us as adults should hope and aspire to obtain, communicates something that I think violates the movement that I joined many, many years ago.” Perhaps we can fuse Polikoff’s insights to Franke’s caution to state that marriage is just one of many ways to achieve one’s own authenticity, and that the continued trumpeting of “all marriage, all the time” risks drowning out that basic insight.

Then, though, Franke said something else that seemed to me just….wrong. She expressed a strong preference for marriage equality decisions that focus on equality, finding the focus on “dignity” that comes with fundamental rights analysis to be troubling. She cited the California and Massachusetts decisions in making her point. What she’s missing, though, is that both courts expressly connected fundamental rights and equality. This connection especially permeates In Re Marriage Cases, the California decision.

This isn’t the place to get into an extended discussion of the text, but a few passages illustrate the point. For example: “one of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples.” (183 P.3d at 444.)

Recall that the California Supreme Court was making its decision in a state that already had a domestic partnership law that conferred substantially the same benefits on same-sex couples as marriage does on opposite-sex couples. So, “in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” (Id. at 445.) The court went on to remind us that this thoroughly discredited idea that “separate is equal” has been tried, and rejected, in the case of race and gender.

Perhaps Franke was simply making the point that marriage equality is just the first step in a more comprehensive assessment of legal fairness and social significance, and her point was lost in translation from panel to report. In any case, it’s worth remembering that courts can and do only address the controversy before them; in so doing, they’re right to insist that likes be treated as likes, and to fuse the related pillars of equality and basic rights.

You’ve got dignity. Where’s mine? And then, what about everyone else?

Ho, Hum…. (Washington Passes Full Domestic Partnership Law)

April 17th, 2009 1 comment

In a story that attracted little attention outside of the state (except on gay news websites), the Washington State legislature on Wednesday gave final approval to a bill that expands the state’s existing domestic partnership registry to grant same-sex couples the same benefits as married couples. Opponents have sprung into action, but have little chance of undoing the legislation in a state that’s prepared to take at least this step.

What does it say about the state of the marriage equality movement when “virtual marriage” has become the compromise norm in a growing number of states? (New Hampshire, New Jersey, Oregon and California now have laws approximating marriage for same-sex couples.) And it’s a norm that elicits a collective “ho, hum” from all but the most apoplectic equality opponents. It’s still not true equality, of course. I recall hearing Andrew Sullivan say, a few years ago, that these “virtual equality” laws are really “pure” discrimination. That’s exactly right: Once equality of benefits is granted, all that separates the two “classes” is status, or a kind of legal caste. Here’s one opponent of the domestic partnership legislation, in a comment posted to the Seattle PI’s website:

“Your [sic] not equal. You’ll ALWAYS be two same sex people who THINK they have what I have being MARRIED to one man for 27 years. You will never be equal to me.”

She might have added: “So, there!” But she’s right, as long as the law continues this separation. Further, this verbal foot-stamp is in fact no different from that of more sophisticated equality opponents. Consider Maggie Gallagher’s statement, speaking of why civil unions were better (from her perspective) than marriage:

If the 15 words “Marriage in the United States is exclusively a union of one man and one woman” are placed in our Constitution, we can point to those who claim civil unions are marriages and say with confidence, “Not in the United States.”

So, there!

It’s likely for this reason that courts have started to look much more closely at arguments that civil unions and domestic partnerships don’t satisfy equality guarantees built into state constitutions. This is from the Connecticut Supreme Court’s marriage equality decision, Kerrigan v. Commissioner of Public Health: “Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society  than marriage.”

To even more pointed effect, In Re Marriage Cases (from California): “[R]etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise—now emphatically rejected by this state—that gay individuals and same-sex couples are in some respects   “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”

Of course, these courts are correct. So are the civil union commissions in both Vermont and New Jersey, both of which came to a conclusion even Sarah Palin could understand (if not articulate): Civil unions don’t confer equality. Yet I’m starting to like civil unions and domestic partnerships. They’re training wheels, of a sort; not for the couples, but for the larger society. By granting formal recognition and the (state-conferred) benefits of marriage to gay couples, they bring us much closer to equality in the short term, and simultaneously give root to the idea that these couples pose no threat to marriage. Soon thereafter, the citizens become more confident; the training wheels are removed, and full marriage equality is achieved. It’s already happened in Vermont, and I expect it to happen in New Jersey and New Hampshire soon.

Civil unions? Domestic partnerships? Ho, hum… in the short run.