It’s over at the New Civil Rights Movement. Seems like the court, in its 2-1 decision, was trying to whisper directly into Justice Kennedy’s ear. Let’s see if it works.
I know it should be “Socarides and I,” but the post title is catchier. Anyway, I will be on NPR’s Radio Times tomorrow at 10 am. (Here’s the link; you can listen then, or later via podcast. On radio it’s 90.9 WHYY in Philadelphia. I think it’s also on satellite radio but I don’t know the time.) We’re discussing DOMA, Prop 8, Obama and marriage equality, maybe civil unions (I hope).
Richard Socarides, if you don’t know, was a high-level Clinton advisor and is currently a hugely important figure in struggle for LGBT legal equality. What you’re even less likely to know is that his father, Charles Socarides, was an infamous homophobe who for years fought back (unsuccessfully) against the decision by the American Psychiatric Association to delist homosexuality as a mental disorder. I’m guessing there were some interesting dinner conversations….(or maybe not!)
The strategy for winning the Prop 8 litigation should have been apparent all along — let the proponents self-destruct. I discuss their counsel’s latest concession at this past Thursday’s hearing over at The New Civil Rights Movement. Not even Wile E. Coyote was this self-destructive.
Today, the CA S Ct opined that the Prop 8 official proponents have standing to appeal under state law. The Ninth Circuit will surely accept the ruling, and we can move on to the merits of the case. Here’s my analysis over at The New Civil Rights Movement. As always, comments welcome — on either site.
This has been such a busy week for marriage equality that I’ve had trouble keeping up. Over at 365gay, I look at these three developments (with big emphasis on the first):
New York seems poised to pass a marriage equality law. But it depends on whether the Republican leadership in the Senate will let the matter come to a vote. If it does, it will very likely pass. If it doesn’t, then the Republicans will seem more out-of-step that ever, in a state where the party has maintained its moderate cast over the years — even in the face of Tea Party mania.
A judge in California rejected the ridiculous challenge to Judge Walker’s Prop 8 decision, which was grounded in the outer-space argument that, because the judge was gay and in a long-term relationship, he should have recused himself. An appeal, of course, is planned. The Prop 8 proponents’ best best is to avoid the merits, as the trial — and the proponents’ obsessive insistence in keeping the trial videotape out of the public view — itself clearly showed.
Also in California, the bankruptcy court declared DOMA unconstitutional as applied to a case where a legally married same-sex couple sought to file a joint petition. Only married couples can do so, and under DOMA, a valid state law marriage is nonetheless not recognized at the federal level. Most of the judges (20 of 24) signed the order.
It’s over at 365gay.com.
In brief, the Ninth Circuit panel punted the decision on standing over to the California Supreme Court. After analyzing the court’s opinion — which is carefully constructed to get the court to find that there is standing, I ask:
What does it all mean?
First, the California Supreme Court doesn’t have to answer the question put to it. If it refuses, the issue will be thrown back to the Ninth Circuit, which will then have to make its best guess. (If the composition of the panel is the same, the answer to the standing question will be “yes.”)
Second, it’s very clear now that the panelists really want to answer the monumental constitutional issue put before them. They have just made it much harder for the Supreme Court to dodge the question on the basis of standing, as would have been likelier had the judges simply ruled – one way or the other – on standing. In that case, the losing side would have appealed that ruling to the high court, which could simply have decided there’s no standing and thereby allowed same-sex marriages in California – but only there – to continue.
But if the California Supreme Court finds that the Prop 8 proponents have standing – and it will – then it would become harder for the U.S. Supreme Court to disagree, given the Court’s statement in Arizonans for Official English about the importance of state law.
Third, this decision really pushes back the ultimate day of reckoning. The California court can take its time deciding whether to certify, and then call for briefs, then schedule oral argument, then render a decision….And whoever loses the standing issue is likely to appeal that issue, perhaps twice (to the Ninth Circuit en banc and then to the Supreme Court) before we even get to the merits.
If ever. Because the voters could themselves make all of this moot by voting to repeal Prop 8, which could happen in 2012. Suddenly, that doesn’t seem so far off.
As readers of this site might not know, Maggie Gallagher directly responded to my post from last week’s 365gay.column. In a (mostly) respectful tone, she clarified — seemingly for the first time — her views on civil unions. In principle, she favors them but worries they’ll lead to full marriage equality. And opposing that outcome is her professional raison d’etre.
In this week’s column, I use her post as a springboard to discuss the oral argument in the Prop 8 case, and to agree with Maggie — civil unions do and will lead to full marriage equality. But we differ, of course, on whether that is a good or bad thing.
Earlier today, I live-blogged the argument to a Ninth Circuit panel in Perry v. Schwarzenegger.
Now, with dinner and a ridiculously difficult swim behind me, and the kids in bed, here are some observations about what I heard (and saw in the judges’ faces) during the argument:
(1) The court seemed much more interested in the unique facts of California’s marriage equality/Prop 8 situation than in reaching a broad decision about whether the U.S. Constitution confers a right on same-sex couples to marry. Judges Hawkins and Reinhardt, especially, kept encouraging Ted Olson to take a big — but incomplete — victory, declaring Prop 8 to be unconstitutional, but avoiding the deeper question of whether the state can ever deprive its gay and lesbian citizens of the right to marry.
Here’s the path to doing so: In the 1996 Supreme Court case, Romer v. Evans, the Court struck down an amendment to the state’s constitution that effectively walled gays and lesbians off from any legal redress for discrimination. As Justice Ginsburg pointedly noted during argument, under the state’s argument, any LGBT state resident could be denied the right to borrow a book from the public library just because of sexual orientation, and would have no redress. This, the Court said, no state may do. It’s hard to find an action that strikes more directly at the heart of the equality principle, and Romer famously began with a quote from Justice Harlan’s eloquent dissent in Plessy v. Ferguson: “The Constitution neither knows nor tolerates classes among citizens.”
Reinhardt and Hawkins made ample use of Romer, strongly suggesting that Prop 8, by taking away a right that the state’s supreme court had already deemed fundamental (earlier that same year, 2008), created for LGBT citizens a second-class standing, by the name “domestic partnership.” And given that the domestic partnership confers all the rights of marriage but withholds the name, it’s hard to avoid the conclusion that the enactment is motivated by anything other than animus towards gay and lesbian couples.
There’s something paradoxical about this, of course (as I’ve noted in a law review article, The Short, Puzzling(?) Life of the Civil Union) — a state, such as California, that’s gone all the way up to marriage for gays and lesbians while withholding the word is, under this approach, more vulnerable to challenge than a state like, say, Florida, that has no state-wide protection for gays and lesbians. Indeed, Charles Cooper (attorney for the Prop 8 proponents) called this kind of analysis “perverse.” But it might carry the day, if the court finds that at least one of the Prop 8 defenders before it has standing. (See (3), below.)
(2) None of the substantive arguments in favor of Prop 8 appeared to have much traction with the court, except with Judge Smith. I’m not oversimplifying to say that the argument was really about procreation — particularly, accidental procreation — and little else. That’s all they had once the court wouldn’t stand for the argument that “the people” should get to decide to continue restricting marriage to opposite-sex couples because — well, because marriage has so far been restricted to opposite-sex couples.
(3) I wouldn’t be completely surprised if the court finds that the Prop 8 proponents have no standing; that’s not what I’m expecting, but it could happen. The questions on standing were pointed, withering, and perhaps decisive. I’ll leave further analysis of this point to those few experts in procedural constitutional law who have thoroughly digested the case law on this issue. (Some good ones are linked here.)1
(4) There’s much, much more to come. The court even suggested that the case might for a time be diverted to the California Supreme Court to resolve an issue central to standing. Whether or not that happens, there will still be an appeal by the losing side to the full Ninth Circuit (called an en banc hearing), a likely appeal to, and decision by, the U.S. Supreme Court, and then even a remand (possibly) to the trial court — but not to Judge Walker, who is about to retire.
All things considered, I think the court would be wise to limit its ruling to the unique facts and circumstances of Prop 8 (and here I’m assuming that the case will survive the appeal). Here’s why:
Justice Kennedy, who holds the balance of power, would be much likelier to agree with a more cabined holding. And setting the case in the context of Romer would appeal to him; after all, he wrote it.
If the Supreme Court does throw out Prop 8 — without deciding the broader question of marriage equality, once and for all (or as “once and for all” as the Court gets) — then the gigantic, bellwether state of California will soon be issuing millions of marriage licenses to gay and lesbian couples (as well as eliminating needless complications that have tied courts up when dealing with transgendered folks) and it will become clearer, faster that the Earth didn’t spin off its axis. More states would then follow, more quickly, and before long the issue will become so clear — if not plain dumb, a waste of time and energy for all but the few most zealous oppositionists — that the Supreme Court would face little to no backlash in calling all committed, loving couples into the constitutional embrace of full marriage equality.
- Note: This link wasn’t working; now, it should be. Sorry for the glitch. ↩
Here’s what I came up with earlier today. The faint-of-heart (and of patience) can skip past the standing issue and start about halfway through the long post, where the court and the ligitants get into the substance of the debate about same-sex marriage and Prop 8.
I’ve spent some time going through the amicus appellate brief filed by Robert P. George et al. in the Prop 8 case. In a couple of pieces I posted a few months ago, I criticized George’s warmed-over natural law ideas, which amount to little more than convenient sophistry in defense of his preferred outcomes (including the exclusion of gay and lesbian couples from marriage.)
Nonetheless, this short and pointed amicus brief is clear and effective on its central point: We need a definition of marriage, and that definition has to be provided by the legislature (or, in the case of Prop 8, by the people). Without such a definition, everyone has a claim to be included, and there’s no legitimate basis for excluding other sorts of unions, including polygamous ones or relations between adult kin. And this definition inescapably takes in a moral dimension, as it inevitably must: What are we signaling with marriage? What is its normative, prescriptive content?
But it’s a long way from asking those vital questions to getting the answers that George et al. hope the appellate court to reach, and the argument simply doesn’t hold together. First, it’s too simple to state, as the authors do, that we have a clear definition of marriage to start (“logically prior,” as they say) and that we can then raise constitutional issues only in the context of that agreed-upon definition.
By that clinical way of considering the issue, we’d rarely be able to declare the exclusion of any group unconstitutional. So if marriage really is tied to procreation and the best interests of children (as the authors state, but in a more sophisticated way than usual), then it presumably would be constitutionally permissible to exclude women over a certain age (say, 65 for women; by the logic of this argument, we wouldn’t care about the sex discrimination involved). The authors attempt to avoid this conclusion by pointing to the natural-law-heavy assertion that men and women unite in a unique way, but why is that union important to marriage if it can’t produce children (since marriage is, again, mostly about children)? In the end, George’s natural law biases return to their moorings.
No, it’s more complicated than that: The meanings (not meaning, singular) of marriage are complex, and subject to constant reconstruction and challenge, especially at certain watershed moments. We’re in one now. And it’s fair to say, as the authors do, that the political process has a role to play in this on-going definitional process; to that extent, the marriage equality debate has been useful to a collective consideration of the broader questions about the purposes and meanings of marriage.
But that doesn’t mean that the courts have no role to play in ensuring that those definitions are not crafted in a way that ensures the unequal treatment of certain groups of people. And, as it turns, out, the supposed clarity that George et al. find in the purpose of marriage is really just a convenient way to fence out same-sex couples. It’s obvious from what they don’t say. For example, they overlook the inconvenient fact that adult friends can marry, as long as they’re of the opposite sex. But surely such non-procreative, non-sexual unions are inimical to the purposes of marriage, as they’ve defined them. Why don’t they “weaken the links between marriage and procreation,” which the authors fear that sanctioning same-sex marriages would do?
This brief is better than most on the anti-equality side, principally because it clinically eviscerates the argument that the state should stay out of morality in creating marriage laws. Doing so would be impossible, perhaps even incoherent. But its own positive arguments for morality stand revealed as just another way to define marriage to exclude same-sex couples only – not the old, the infertile, or the non-sexual.
I’m not done. The authors also simply assert that extending marriage to same-sex couples would “convey that marriage is fundamentally about adults’ emotional unions – not bodily union or children….”
Really? As for “bodily unions,” we can see the natural law argument peeking through – and this same argument would, by the way, exclude deliberately non-procreative sexual relations between opposite-sex, married people, as well as all sex between a “whole” and a seriously disabled person (who lacks not only procreative capacity but the “equipment” needed for the task); the latter, according to their theory, shouldn’t be allowed to marry, either. But don’t expect to hear them arguing against such unions – unless the couple also happens to be gay.
As for children, we have yet another case of the anti-equality forces completely overlooking the welfare of the children in families headed by same-sex couples. But these authors go further, and overlook the very existence of these children – after all, the union of their parents is about their “emotions,” not about their kids. It’s quite apparent that none of the authors has spent any time around our families.
In short, there’s no principled way of excluding only our unions from the right to marry. It’s precisely for that reason that courts have come to recognize that what really lies at the bottom of the opposition is a kind of natural law argument that, on the most basic level, reduces to: “Ick!”