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Wednesday, February 06, 2013

Same-Sex Marriage in the Courts (of Public Opinion, and Otherwise)

Yesterday, the British House of Commons voted 400 to 175 in support of a bill which will legalize same-sex marriages in Great Britain. I'm happy--for the outcome, yes (which I've changed my mind about), but more importantly for the way the outcome came about. Years of protest and agitation, days and weeks and months of discussion, hours of parliamentary debate, and then, finally, a vote. That's the better way.

I'm put in mind of this belief of mine as my church has once again involved itself in the continuing litigation over same-sex marriage in the United States. (I'm among the many Mormons who kind of hoped that some recent developments indicated that our church was willing to let the legacy of the Proposition 8 fight of 2008 fade away, but apparently we're not quite there yet.) This litigation--both sides of it--annoys me. Granted, the history of votes regarding same-sex marriage in the U.S.--whether in the form of popular referendums or legislative action--has basically been a story of many, many losses over the past decade and a half, followed by, over the past couple of years, a rising number of wins, so presumably I ought be happy that with courts making decisions about rights and taking such out of the hands of fickle voters. But the opposite is the case; the uneven record of voting on this issue isn't particularly troubling to me at all--given that I've been through a long patch of unevenness myself, there isn't anything perplexing about realizing that so many others are working their way through a similar reconsideration. No, what I do find frustrating--especially in comparison with how this matter was ultimately, and wisely, handled in Great Britain--is the way democratic activity in this country is so often reduced to judicial claims and counter-claims, taking the issue away from the courts of public opinion and giving it to other, less democratic courts. As things stand now, come the end of March, the U.S. Supreme Court will rule definitively (maybe!) on the constitutionality of both state and national efforts to legalize or deny legal recognition to same-sex couples. I suppose it would be right to say I hope they rule in favor of the legality of such, given my changed opinions on the matter--but also given that such a decision would take the form of a legal mandate which will almost certainly run roughshod over the laws adopted by dozens of states, all of which have the support of millions of citizens, I can't say I'm looking forward to it.

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is "no"--but my answer to the former is that I just quite don't believe that opponents of same-sex marriage are necessarily operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation presumably were. It's quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can't deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can't see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for something so obviously out of line with our country's evolving political ideas as to deserve the judicial squashing which Boies and Olson (and perhaps President Obama too) clearly think it deserves.

After all, as much mockery as the idea has received from one side of the divide, the claim which my church's lawyers have signed on to--that advocates of traditional heterosexual marriage and supporters of same-sex marriage have in mind visions of marriage which are in "deep tension" with one another, "one inherently intergenerational, the other primarily interpersonal; one focused on children's and society's needs, the other on the desires of the couple"--is not, I think, obviously silly or just a cover for raw distaste and prejudice. It is, on the contrary, entirely plausible (if not, to me, any longer convincing) to argue that the physical differences between men and women, and their reproductive potential, make it incumbent upon society to legally ratify such relationships in a socially beneficial way that homosexual couplings, no matter how loving or civic-minded, are biologically capable of ever being. Moreover, it is not obviously ludicrous to me to note that, given the widespread support for numerous statues in several states providing near marriage-identical forms of civil protection and social validation to gays and lesbians, the argument about the harms of Proposition 8 are probably not quite the same as those 14th-Amendment-centered harms which activated judicial interventions into the political deliberations of the states in the cases of, for example, Romer v. Evans or Loving v. Virginia. And finally, it does not strike me as obviously nonsensical to suggest that a society which truly takes the principle of equal respect seriously should reject the easy solution of "sameness" offered by inviting homosexual couples--who arguably will have a moral and social and sexual teleology in their relationships quite different from those of heterosexuals--into a marriage institution which was designed for people whose needs are distinct from theirs. And when this last argument concludes with a call for churches and other religious institutions to accept the Christian duty to love gays the same as straights, and work out institutions which will serve their teleology as well as heterosexual marriage has served the rest of the population, I think even the most dismissive critics ought to at least acknowledge the decency of their intentions.

All this is to simply say that these are beliefs--just like, I think, most beliefs--that deserve to be taken seriously enough to allow them to be argued out in public, and for the courts of public opinion to respond to them as they will--whether in support or in opposition. This isn't an argument that every democratic majority everywhere ought to have its way all the time, but just a wish that people were more willing to accept the (when properly limited within a reasonable understanding of basic liberal rights) wins and losses of democratic life, and how the lives which get worked out democratically will differ from community to community, and from era to era. Minds do change; they change all the time. For me--to focus just on the first claim above--the accusation that accepting same-sex marriage meant accepting as normative for purposes of social recognition a genderless choice-driven individuality ran aground on my ultimate unwillingness to fully sign on to the sexual inegalitarianism which such an accusation of individuality presumes. Obviously Melissa and I are raising daughters, not sons, and that difference matters. But I couldn't continue to believe, as we taught our daughters and encouraged them to consider themselves equal to both boys and men in the face of the pornographic misogyny which powers so much of the capitalist marketplace which surrounds them, that--to use the terms quoted from the brief above--community-preserving intergenerationality depends on impressing upon them their particular role within a companionate, heterosexual marriage, when it was obvious that such doesn't depend equally upon the men (something especially easy to challenge in world which has been transformed by technologies like the birth control pill or in vitro fertilization, to say nothing of the unfortunate--but probably inevitable--consequences of the no-fault divorce revolution). For better and for worse (yes, it's both) ours is a world more interpersonal than otherwise, and I saw that it was possible to argue against rampant individualism in a way which expanded the circle of community--by, among other things, making room for homosexual individuals in the historical practice of monogamous, companionate marriage--rather than holding tightly to a model of an intergenerational thing which had long since already been changed.

(There is, of course, a Mormon angle to all this for me as well; my church has few rivals in its cult of motherhood and its emphasis upon the special role of women in passing the faith along to the next generation. But that, of course, is something which need not be aligned with the civic sphere. Do I think it legitimate for Mormon majorities in their communities to push for such an alignment? Yes, I kind of do, though again in light of basic liberal guarantees, which itself is something which warrants continuing democratic contestation. I will say, though, that I strongly disagree with those who present such a push as something mandated by the logic of Mormon doctrine--that our (non-canonized!, I shout in vain) teachings about the eternity of gender and our (entirely speculative, I similarly grouse) claims for the existence of an exclusively female companionate deity alongside God make it incumbent upon believers to vigorously resist any attempt to suggest that such supposedly divinely sanctioned institutions as heterosexual marriage might accommodate other forms of human existence. The doctrinal grounds for justifying that kind of narrowly conceived--and inevitably party-aligned--movement would make a mockery of our historical political theology, I think.)

What about the other two claims mentioned above? I remain pretty much in agreement with the second: despite the arguments of many, I'm still unconvinced that the restriction of marriage to heterosexuals constitutes a grievous constitutional harm put in place solely with the aim of burdening a specific, disliked minority population. (That does not deny that fact that harms are a reality here--it only denies that the actually existing harms to homosexual individuals is great enough to demand further empowering the judiciary by handing over to them yet one more of our contentious disputes for resolution.) As for the third, well, that argument calls for exactly the sort of thing which, over four years ago, I thought was the best possible solution--and I'd like to be able to believe that we could wean ourselves away from the false and individualistic reading of "equality" that substitutes the idea of the full recognition of difference with legal identicalness. But I don't see ourselves ever being about to manage such a weaning, because of the legacy of a particular strain of liberalism in this country. And speaking idealistically of what we think we ought to be able to do is no good reason to not do something else which, even it does partake of that particular reading of equality, can extend some real interpersonal richness to our social lives as well. And same-sex marriage will do that.

In the meantime, as we get to wait for the Supreme Court to, sometime this summer, either strike down or legitimize same-sex marriage bans, or perhaps to simply punt the whole issue back to the states, where the rigamarole will begin again, Great Britain will get on with what governments are supposed to do--respond to pressing issues by crafting solutions. The House of Lords may delay this bill's route to becoming law, and given the number of Conservative MPs who deserted Prime Minister David Cameron on this vote, maybe there will be major political consequences, even new elections called early. In which case their own rigamarole will continue: but at least the citizens in that country will be able to say that they, however indirectly, were actually a part of whatever final compromise eventually emerges from Parliament, whereas in our case, for all our claims of freedom, we'll really only be able to have a decisive say if the Supreme Court decides we can have one. Frankly, I think same-sex marriage, which I support, deserves a better court than that.


dan said...
This comment has been removed by the author.
dan said...

Sorry, but I disagree with you. The Supreme Court exists to uphold the constitution. The constitution has the 14th amendment to give equality before the law. That equality doesn't exist due to DOMA and unequal marriage laws. Do you want me to list the ways? Can I start with the fact that I can't live in the USA because I am not allowed to sponsor my husband of 12 years for immigration? The people can have referendums and pass laws that oppress minorities. If you don't believe I am oppressed, please talk to me, and I will explain to you some of the legal oppression I face. The Supreme Court is obliged to correct that.
(I am glad to know your heart is in the right place and that you support marriage equality)

Chris Kimball said...

I think you address the easy questions and skip the hard one.

We recognize that arguments at the Supreme Court ultimately are or should be about the limits of the democratic process. That is inherent in a constitutional system. I don't think you propose to do away with the Supreme Court altogether. So the question really comes down to whether the issue before the Court is appropriate.

Filings by the sponsor of the ballot measure ask the Court to decide the broad question, whether the Constitution’s Fourteenth Amendment “prohibits the State of California from defining marriage as the union of a man and a woman.” You make a reasonable argument (not to say that I agree) that that question should be decided by democratic process, not by the courts.

But there is a narrower way to put the issue, the way it was asked and answered by the Ninth Circuit Court: does the Constitution bar a state that does allow same-sex marriage (as California did), to take it away when one of the reasons for doing so is moral disapproval of homosexuals?

Isn't that question the right place for the courts to get involved? Regardless how you would answer the question (does the Constitution bar taking it away for bad reasons?) do you really think the Court should not address that question?

Russell Arben Fox said...


The Supreme Court exists to uphold the constitution. The constitution has the 14th amendment to give equality before the law. That equality doesn't exist due to DOMA and unequal marriage laws. Do you want me to list the ways?

No doubt you could list many. But that would just be the tip of the iceberg when it comes to listing the hundreds of thousands of ways in which diverse citizens of the United States don't have equality under the law. 17-year-olds can't legally buy beer. Felons are often stripped of their right to vote. As of today, gay people still aren't allowed to be leaders in Boy Scouts of America. And on, and on, and on. There is a lot of entirely legal distinctions (and to those, like yourself, on the losing side of those distinctions, "oppressions") out there, many of which I would fully support challenging democratically, through electing new leaders, writing new laws, and pushing for new referendums. But I just don't see each and every one of those distinctions necessarily rising to the standard of violating the 14th Amendment. I'm sorry, but the presumption that the same-sex marriage does, simply because "equality doesn't exist due to DOMA and unequal marriage laws," isn't in my mind a knock-down, obvious constitutional harm. Many harms which arise from inequality aren't of constitutional muster (and, given my preferences for democratic deliberation, probably shouldn't be).

Russell Arben Fox said...


Does the Constitution bar a state that does allow same-sex marriage (as California did), to take it away when one of the reasons for doing so is moral disapproval of homosexuals? Isn't that question the right place for the courts to get involved? Regardless how you would answer the question (does the Constitution bar taking it away for bad reasons?) do you really think the Court should not address that question?

When you narrow the whole range of judicial claims and counter-claims down like that, Chris, I suppose you have a point. Indeed, it's a point upon which arguably my own defense of the appropriateness of Brown v. Board of Education: namely, that what the SC was doing in that situation, while nominally resolving a 14th Amendment claim, was actually addressing a system which incubated a genuine animus, a structure of not just inequality but contempt. So I suppose that would be a burden that opponents of same-sex marriage, in a situation where it had been made legal, ought to be obliged to show: that they aren't doing this (namely, taking away an actually then-existing right) out of animus. And yes, you're probably right, demonstrating that would have to take place in a court of law. I don't know; I'll need to think about this a little more. But you may have got me there.

Don Harryman said...

Russell: Indeed, Chris does have you there. Although I liked your analysis very much, your examples of inequalities that do not rise to the level of USSC involvement are lacking: our society has concluded that 17 year olds have not formed judgment sufficient to purchase and consume alcohol responsibly, gay people are not allowed currently to be leaders in BSA because the USSC (which obviously did get involved) decided correctly I think that private organizations may exclude whom they will based on Constitutional guarantees of freedom of association, society has allowed felons to be restricted from voting because they have demonstrated irresponsibility in life choices etc. (Ironically, in Turner V Safley, the USSC decided that felons may not be restricted from marriage rights--I don't see opponents of SSM seeking to overturn a situation in which someone who is a serial killer may marry and father children while in prison, while simultaneously denying those same rights to law abiding same sex couples. Talk about equal protection under the law!!) Clearly, that kind of glaringly lopsided inequality is something opponents of SSM will NEVER address, precisely because their position is based almost entirely on animus towards gay people. Do organizations like the Mormon Church opposing SSM dare to make the (I think defensive) claim that 'they violated no one's civil rights' by passing Prop 8 while in the same statement invoking shared 'theological perspectives' expect not to defend in court the charge that their views ARE based on animus and their particular brand of theology? Do they seriously expect that countless vile statements made by Mormon Church leaders about gay people, about God's disapproval of homosexuals etc. will not be called into evidence? Do they seriously expect that the history of Mormon political activity designed to strip homosexuals of equal protection under the law in housing and employment which was exactly the case in Romer V Evans which you cited will also not be called into evidence as pure animus? Amendment Two fully and actively supported by the Mormon Church in Colorado removed all legal protections in housing and employment in Colorado--it had nothing to do with marriage and the USSC correctly concluded that it was based on nothing but animus while striking it down. Interestingly, the animus filings in the USSC come after a long silence in the preceding trials by the Mormon Church--they were MIA in court because what they paid to be said during the Prop 8 campaign was nothing more than a pack of lies and base fear mongering and thus indefensible in court.

Particularly the Mormon church's past history of hateful disenfranchisement of gay people and political activity designed to cement their animus into civil law will be their undoing in the Supreme Court.

'Violated no one's civil rights...' Please.

Russell Arben Fox said...


I don't see opponents of SSM seeking to overturn a situation in which someone who is a serial killer may marry and father children while in prison, while simultaneously denying those same rights to law abiding same sex couples. Talk about equal protection under the law!

This is a really strong point of yours, probably stronger than many similar accusations of hypocrisy made against opponents of same-sex marriage which involve pointing to useless Las Vegas marriages or the like which are nonetheless, under our current regime, treated as legitimate. Because in the case of the convicted felon, you're looking at someone who has already had rights taken away from them, but from whom access to marriage is not. So these are already "suspect" populations; why aren't they considered further suspect in terms of their ability to make use of legally recognized marriage relationships? Presumably--and you already see where I'm going with this, I'm sure--because they aren't actually suspect when it comes to the criteria which opponents of same-sex marriage are primarily looking at: namely, penises, vaginas, the possibility of childbirth, the whole range of heterosexual characteristics. If you follow that logic, it gets that much harder to insist that there isn't a stigmatizing going on.

I don't dispute that opposing same-sex marriage stigmatizes; I've comes to accept that, such that I can't oppose same-sex marriage any longer. Does it stigmatize in a way which rises to the level of irrational animus? I still believe that opponents of same-sex marriage--at least in their arguments, if not in their motivations--are making that are at least plausible, and that the lack of legal recognition of such marriages does not automatically constitute grave harms, and hence are claims which deserve to argued out politically rather than settled juridically. But even given that democratic preference of mine, as Chris points out, if same-sex marriages have been legalized, what is going on in taking it away from them again? Well, what would be happening if we all of a sudden took away the right of convicted murderers to wed? It would, presumably, be a realization that arose from an opinion about their moral criteria, because obviously the heterosexual criteria hadn't changed. And what, really, is the difference between than and "animus" there? Not a whole hell of a lot.