WordInEdgewise

(cross-posted from 365gay.com)

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.

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.

As many readers know, last week the High Court in Delhi, India, sided with an HIV/AIDS services organization in ruling that the state’s prohibition on consensual, “unnatural” sexual acts violated the Indian Constitution. Nan Hunter has a brief summary of the ruling in Naz Foundation v. Government of NCT of Delhi, which apparently applies throughout the country unless and until reversed by the Supreme Court.

The long decision is noteworthy for many reasons, most obviously because it adds India to the ever-growing list of nations that have taken important steps towards recognition of the basic equality of their LGBT citizens. I recommend reading the entire decision (it’s long!), which you can find linked to The Times of India  (which also quotes some of the court’s soaring rhetoric about discrimination, equality, and dignity).

Here, I want to focus on just a couple of points. First, the two state ministries that weighed in on the law differed; the Ministry of Home Affairs supported the law, while the Ministry of Health and Family Welfare sided with those challenging the law. The conflict draws into sharp focus the question of whether “morals legislation” is valid when it’s contradicted by public health and welfare considerations. In sum, the court said “no.” Home Affairs conceded the privacy argument for throwing out the law, but thought that it should be overborne by considerations of “public safety and protection of health as well as morals….” But the evidence strongly supported the contrary view of Health and Family Welfare, to the point that public health considerations argued strongly in favor of removing the legal prohibition against consensual sexual acts.

As someone who writes and teaches about the connections between public health and law, I was surprised and heartened to see the court undertake a direct and compelling public health argument in favor of throwing out this artifactual statute.  In a ten-page section of the opinion entitled “[The Law] as an Impediment to Public Health,” the court details the high social and epidemiological cost of the closet, which is powerfully reinforced by the criminalization of same-sex relations. As we know, criminalization of same-sex relations and the accompanying stigma (as well as the potential for blackmail, apparently still real in India) drive the epidemic underground, making it much more difficult to reach people with disease prevention messages and strategies.

To the Home Affairs counter that criminalization was the right response to the HIV epidemic, the court noted that this view ran counter to well-understood views of homosexuality and the effect of criminalization. Siding with international and national public health authorities (including Health and Family Welfare), the court stated the prevailing view that criminalization doesn’t stop the behavior, but simply drives it underground. Not a good place to be, from a public health perspective. In addition to leading to preventable cases of STDs, including HIV, criminalizing homosexuality has more subtle effects. It adversely “shapes an individual’s identity and self-esteem. These laws “serve to embed illegality within the identity of homosexuals.” They “reinforce public abhorrence of lesbians and gays resulting in an erosion of self-esteem and self-worth.”

The other point worth mentioning is that the court, like many courts addressing broad issues of human dignity and civil rights, looked not only to its own law but also to the laws of other nations, as well as to international declarations of rights. Lawrence v. Texas received prominence of place, with the New Delhi court quoting Justice Kennedy’s majority decision declaring that banning same-sex intimacy violated the couple’s fundamental liberty interest, as well as Justice O’Connor’s equality-based concurrence. But decisions from South Africa, Canada, Australia, and the European Court of Human Rights were also discussed, as were the Universal Declaration of Human Rights and the European Convention on Human Rights.

I can’t resist concluding this post by remembering Justice Scalia’s dissenting screed in Lawrence, relevant to both points. First, he liked that, pre-Lawrence, the prohibition on same-sex intimacy could be — and was — used to support the unequal treatment of gays and lesbians in other areas of law. A couple of the cases he cited favorably upheld: the use of a police department questionnaire asking potential applicants about past homosexual (but not heterosexual) activity; and expanded security clearance for gay and lesbian job applicants only. He left out the worst case of all, in which a job offer to a lesbian who was set to begin working in the Georgia State Attorney General’s office was withdrawn after the AG found out about her commitment ceremony; in the view of this later-to-be-determined adulterer, her status as a lesbian was enough to presume she’d engage in illegal conduct. Begin making room in the closet.

Scalia also reddened at the Lawrence majority’s invocation of — not reliance on — foreign (pronounced: “fer’n”) sources of law. He quoted favorably from an earlier opinion by Justice Thomas objecting to the Court’s imposing “foreign moods, fads, or fashions…” on Americans.

Dignity, equality, and application of sound public health findings: “Moods, fads, and fashions.”