Thursday, May 15, 2008

California Dreamin'

The California Supreme Court has overturned that state's ban on gay marriage. The text of the decision can be found here.

The actual holding is buried on Page 79 of a lengthy 121-page opinion.

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

Naturally being who I am, I pretty much had to write about this, and I spent a couple of days thinking about what I thought of this court decision, being an attorney, a gay man, and someone very interested in the intersection between law and politics. I have a lot of conflicting thoughts.

The interesting wrinkle regarding California compared with other states is that, unlike in many states, the Legislature has taking a series of steps, outlined in the decision, to grant something that closely resembles marriage equality without using the word marriage, out of a combination of a desire to avoid contradicting directly the language of Proposition 22. For these unions California used the term "domestic partnership," a popular term for private companies who grant benefits to same-sex couples rather than the term "civil union," which is used by Vermont and seemed to be the more popular term to refer to the theoretical grant of this right by most other jurisdictions.

This has been a big argument in the gay community - whether advocates ought to be willing to trade whatever gap exists between full civil marriage rights and what might exist in a bundle of rights established by these statutes for fighting the semantic battle on somewhat more favorable turf.

I have generally thought of myself as a pragmatist, more interested in concrete benefits and incidents than I did in the often symbolic value of labels, and had thus been more on the side that said that the fight for the term "marriage" was by and large not worth the trouble. In my own discussions with people not overly invested with either the pro-marriage quality side or the opposition, I found a lot more resistance to redefining the notion of "marriage" than I did when talking about the various practical legal affects of marital status on a series of legal relationships.
While it in some ways fun to lighten the mood of discussions of this sort with "Gays want to get married - why shouldn't they be as miserable as straights?" and other glib jokes... points about hospital visitation and inheritance rights were fairly good at (metaphorically) melting some cold hearts on this matter.

The court majority made what sounded to me like a fairly good argument by way of the following observation that the alternative nomenclature of "domestic partnership" is in some ways inadequate:

Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering samesex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry. As observed by the City at oral argument, this court’s conclusion in Perez, that the statutory provision barring interracial marriage was unconstitutional, undoubtedly would have been the same even if alternative nomenclature, such as “transracial union,” had been made available to interracial couples.

The phrase "transracial union" did send a shiver down my spine. Especially when anyone looking to challenge the term might have had by definition an issue of standing, if it proved legally equivalent to marriage, or, if it did not, a continuing equality denial issue.

There were two dissenting (technically, partially dissenting) opinions, neither of them especially hyperbolic in their critiques of the opinion. That seems like a small credit to afford them, but not after reading, inter alia, Justice Scalia's rant of a dissent in Lawrence v. Texas.

From one California dissenter:

The majority refers to the race cases, from which our equal protection jurisprudence has evolved. The analogy does not hold. The civil rights cases banning racial discrimination were based on duly enacted amendments to the United States Constitution, proposed by Congress and ratified by the people through the states. To our nation’s great shame, many individuals and governmental entities obdurately refused to follow these constitutional imperatives for nearly a century. By overturning Jim Crow and other segregation laws, the courts properly and courageously held the people accountable to their own constitutional mandates. Here the situation is quite different. In less than a decade, through the democratic process, same-sex couples have been given the equal legal rights to which they are entitled.

I used to be of the opinion that the potential costs of seeking judicial remedies to marriage inequality would prove to do far more harm than good to the cause.

It's consistent with the opinion I've held for a long time that Roe v. Wade was the best thing that ever happened to the Republican Party, but that's another post for another day.

A few things changed.

1. I became persuaded that same-sex marriage is not nearly the electoral winner that conservatives and many analysts think or thought it is or was. Its effect on the 2004 election was somewhat exaggerated, and the issue didn't help the Republicans in the 2006 wipeout. The indicators appear to be pointing in the right direction.

2. After Massachusetts recognized gay marriage, and other states recognized civil unions, civilization did not come crumbling down, fire and brimstone did not rain down upon my home state, and things continued as they had been. Things went on there as more or less as before; maybe some places got a slight uptick in tourism. I'm not entirely sure what the antis thought was going to happen but those looking for a catastrophe didn't find one.

3. I saw photos of and read accounts by some of the individuals involved in the controversy. It's not difficult for a [presumably] heterosexual California judge, and even for (especially for?) a relatively young and single gay man, to urge caution, prudence, and patience. It's a little more difficult, I would think, to do so if judges and politicians (and voters for that matter) make sure that you and the partner you have chosen to settle with for life remain forever strangers in the eyes of the law. I decided I didn't really have standing to demand that of the litigants in question.

The part of the dissent I find problematic is embodied by the last sentence I excerpted. Maybe there have only been gays and lesbians denied their rights for fewer than 10 years as far as that judge is concerned, but otherwise I can't figure out where the clock started. It's not as if the plaintiffs in this case could have their relationships given legal recognition before Proposition 22 passed; many of their relationships predate Proposition 22.

From a personal standpoint, I've been dating people that I couldn't marry for reasons wholly related to our gender for more than a decade.

I'm very happy for the Plaintiffs. They will now have the day denied many of us for so long.
Hopefully others like them will have their days before long.

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