Posts Tagged ‘liberty’

Fraternité, Sure; Liberté, égalité? — Not So Much

January 28th, 2011 2 comments

(cross-posted from

What should we take away, if anything, from today’s unanimous decision by the French Constitutional Council holding that same-sex couples don’t have the right to marry? After dusting off my French and taking some time to read through it, I have a few thoughts.

The most general point is this: There’s not much of interest in the decision for American legal jurisprudence, even though the legal theories discussed are the same as those considered here: liberty and equality. (All that’s missing from the French motto is “fraternité”).

First, the relationship between court and legislature is quite different in France – a civil law country – than it is in common law nations like the U.S.

To oversimplify, French courts are far more deferential than are ours. While the term “activist court” is tossed around carelessly, it’s undeniably true that the American judiciary is, and has long been, far more willing to declare legislative determinations unconstitutional than have courts in civil law countries. That’s because the civil code is presumed to lay out the law clearly and comprehensively, and the court’s role is seen as more technical – the judges “simply” apply the law to the case before them.

So it’s hardly unexpected that a French court – even a constitutional court – would defer to the legislature. Indeed, the very brevity of the decision highlights the dearth of careful, considered legal analysis the court undertook. I took these points from the decision:

  • Those challenging the law argued that denying them the right to marry was a restriction on their constitutionally guaranteed liberty, a liberty that includes the right to conduct a normal family life (“mener une vie familiale normale”). The court breezily dismissed this claim, noting that the couple could either cohabitate without marriage or enter into a civil union (“le pacte civile”). Any U.S. court considering the claim today would have given weight to the argument that barring people from marriage is an interference with what society — pointedly, even coercively — considers a normal family life.
  • As for the equality claim, the court – again, with no analysis – declared that same-sex couples aren’t equally situated to opposite-sex couples when it comes to marriage, and that the legislature could therefore have decided to treat them differently. Again, a U.S. court would be expected to devote (too) many pages to a discussion of the “similarly situated” question, however the court ultimately came out on the issue.
  • Generally, the court deemed the issue purely one of legislative line-drawing, in its way no different from age restrictions and (even) procedural requirements for marriage. The court did invite the Parliament to reconsider its line-drawing in this instance, but its invitation has no “teeth.”

Will this decision influence anyone here? I might expect the rabid right to jump on it – even though it’s from France, of all places – but we shouldn’t let them get away with it. This is really a decision with little analysis, and with no real legal analogue to the relationship between the judiciary and the legislature that exists here.

And, in a delicious irony, the conservatives on the U.S. Supreme Court can’t get any traction from it, either. After all, to quote Justice Thomas from a 2002 death penalty case: “[T]his Court’s … jurisprudence should not impose foreign moods, fads, or fashions on Americans.”

For once, I agree with him.

She’s Half Right

May 27th, 2010 No comments

Here’s Maggie Gallagher, on the reason the LGBT community has made marriage equality a priority. It’s not really about marriage, after all:

“Gay marriage is primarily about establishing an equality right,” she said, “a moral narrative about equality in the law and the culture.”

I half-agree. For complex reasons, marriage has become the central cause of the public, legal battle for LGBT equality. Some have questioned this emphasis, noting — with some justification — that this focus diverts attention from other issues of more significance for the lives of many in the community (perhaps especially the trans-community). But that’s where we are, and we’re there for reasons that are echoes of the focus of women’s rights groups on voting, and of African-American activists’ emphasis on desegregation. All of these movements have targeted state-sponsored discrimination; actions that are uniquely indefensible, especially in a country that puffs itself up, relentlessly, about equality and liberty.

So to the extent I agree with Maggie  I’d add: “Yeah, so what?” Equality: Good.

Her answer to the “so what,” of course, is that the focus on an abstract narrative of equality for some has real and negative consequences for the broader institution of marriage. Here, she’s wrong for two reasons.

First, she willfully ignores the other part of why we’re demanding the right to marry: As Maggie and conservative defenders of marriage never tire of reminding us, marriage itself has real and important consequences to those who enter into it. It creates and cements commitment, and has a personal meaning that’s not so much about equality (in the day-to-day of it), but about a deeper kind of equality — the kind that fuses with dignity and supports a shared life.

Second, even the defenders of Prop 8 admitted during the recent trial that same-sex marriages wouldn’t harm opposite-sex ones. Maggie disagrees, but try to find one negative consequence of marriage equality that she can point to with any confidence.

So who’s making the abstract argument here? Not us.

The Public Health Peril in Oklahoma’s Anti-Abortion Obsession

October 18th, 2009 1 comment

Nan Hunter has just run a good summary of recent legislation in Oklahoma that, taken as a whole, is designed to prevent women from having abortions altogether. The state’s determination shows that, Roe v. Wade not to the contrary, there’s plenty that states can do to restrict what the Court has declared to be part of a fundamental right to self-governance, privacy, and autonomy.

The state’s zeal, though, shows that ideologues on a mission can wreak havoc with settled public health principles, thereby jeopardizing the public’s trust in health care — just in case there’s any such trust left. There are at least two recent examples of this misguided approach.

First, a recent piece of legislation — later declared unconstitutional — required women to undergo an ultrasound (vaginally in the case of early pregnancies) before an abortion could be performed. Such coerced invasion of the body has typically been required only in cases of epidemic; even there, often the resisting party can usually forego vaccination and pay a fine, or suffer the less objectionable deprivation of liberty. This would have been the first case I’m aware of where an unwanted, invasive procedure would have been made a prerequisite for a procedure that someone has a legal right to have, and where that first procedure isn’t needed for some other medical reason. In other words, this is quite different from requiring a biopsy before surgery to remove a tumor.

Laws educating women about fetal development (although also typically a smoke-screen for restricting access to abortions) are OK with me, at least in principle. This weird law, on the other hand, is creepy and offensive, and it’s lucky that the legislators blew it through a technicality (shoving too many subjects into a single piece of legislation).

The second, and more recent example, is a law currently under challenge. This one  would set up publicly available, web-based reports on anyone who obtains an abortion. The information would have to be reported to doctors, who would then be required to pass it on to public health officials. This is a very, very bad idea. I don’t even need to talk about abortion (thankfully!) to explain why.

This law will drive a wedge between physicians and their patients. Many people have distrust of the medical and public health professions, and won’t be warmly encouraged to make that next visit to their provider — or to any other — when they’re met with a battery of identifying questions that can then be used to pick them out of a probably hostile community. As a flimsy subterfuge for the laws’ true intent, names aren’t required — but, as a lawyer from the Center for Reproductive Rights has pointed out, names won’t be needed to identify someone from sufficiently small communities, especially when so much other identifying information is exposed. According to this article, quoted extensively by Hunter, there will be “answers to 34 questions including…age, marital status and education levels, as well as the number of previous pregnancies and abortions. Women are required to reveal their relationship with the father, the reason for the abortion and the area where the abortion was performed.”

It’s clear that the legislators are trying to slap a different kind of scarlet “A” on these women, hoping that the shame and ostracism of expected discovery will keep them from carrying out their intended abortions. It might have this effect, but the more sweeping result will be a lack of trust that will penetrate relationships between patients, doctors, and public health practitioners. Patients will learn how to lie their way around the obviously unenforceable law (some of the facts sought depend on patients’ willingness to disclose, such as “reason for seeking the abortion” and, often, the number of previous pregnancies), and doctors may be less than forthcoming with public health officials if they see them as interfering with the MD/patient relationship. And any public health official with good training will despise and, one thinks, try to circumvent the law.

Even in states that require doctors to report HIV infection to public health, the goal is partner notification and contact tracing to eliminate an established risk. These laws are controversial, but they at least have arguments to recommend them — and the results aren’t published on public websites.

With this level of identifying information, the Oklahoma statute looks more like the sex-offender laws (which have their own problems, btw) than anything else. What more do you need to know?