Galois

Tradition, Tradition!

In the courts, states have had a hard time explaining what possible justification there can be for denying same-sex couples the right to marry.  The two most common arguments given in the past are that the state would like to restrict marriage to couples who can procreate and the state would like provide the best environment for raising children.  More and more courts though have pointed out the severe problems with these arguments.  The first must deal with the fact that the state allows--and at times makes it easier--for non-procreative couples to wed.  While it is true that under the rational basis test a statute may be over-inclusive or under-inclusive in achieving its goals it seems laughable to suggest that the state does not really want non-procreative couples to marry and does so only through oversight or lack of convenient way to prevent it.  The second argument fares even worse.  It tends to backfire as courts agree that marriage can be vitally important to the children involved and thus the state has no business denying the children of same-sex couples this invaluable protection.  It is not surprising then that many states have recently stopped making these arguments (although Washington is one notable exception to this trend). Instead states like New Jersey, New York, and California have switched primarily to a claim that the state has an interest in preserving the traditional notion of marriage.  It is for the sake of tradition that same-sex couples must be excluded from marriage. 

I am actually somewhat sympathetic to the tradition argument.  First of all, unlike the other arguments present above I believe this one is sincere.  I think many people do oppose same-sex marriage because it disrupts their traditional concept of marriage.  This can explain why support for civil unions for same-sex couples has generally been stronger than that for marriage.  Civil unions provide a way to offer some of the protections of marriage without breaking from tradition.  It also explains why many groups opposed to same-sex marriage talk about supporting, protecting, or defending traditional marriage but we don't see proposals for license plates asking to support procreative marriage.   

I also find myself agreeing that tradition is important.  It provides stability and continuity with the past.  Tradition can be quite comforting and reassuring as we constantly face changes throughout life.  It can be particularly distressing to see changes to traditions concerning family and religion as they are areas we associate with continuity and comfort.  Because I find tradition so important I would concede that it could be a rational basis for legislation. There is something to be said for continuing to do something the way it has been done provided there is no good reason to change.  But of course that is not the situation we face with same-sex marriage.  The law as it stands violates our right to equal protection and harms families.  When tradition is accused of being discriminatory it is hardly a defense to say that the discrimination is traditional.

This is particularly the case when we deal with traditions concerning the role of gender in our society.  Traditions have long dictated distinct roles for women and men.  In our present day those traditions have come into conflict with our ideals of equality and liberty.  There is a belief that we should all have equal opportunities without regard to our gender; and we should have the  liberty to pursue  our dreams without the government using our gender to dictate our decisions for us.  These new beliefs have caused many of our traditional laws to change.  Some of those changes were initiated through the legislative process, some through executive orders, and many have come through court orders.  The area of family law has been especially ripe for change in this regard.  The role of each gender was perhaps no where more differentiated than in the home.  At one point a woman lost all separate legal identity at the time of marriage.  Only the husband could own property.  These laws were challenged, often in the courts.  If tradition had been an acceptable defense, the laws of marriage would not have changed.  If tradition had been an  acceptable defense, VMI would still exclude women.  Fortunately our new ideals won out over or older traditions.

I find it remarkable to read in the same legal brief that the laws forbidding same-sex marriage have nothing to do with gender discrimination and a few pages later that they are necessary to preserve our traditions regarding marriage.  Do they not realize that the tradition to which they appeal is one based upon the same gender discrimination they deny exists?  Yes marriage has generally always been between a man and a woman, but when in that time has it not also always defined distinct gender roles? 

It is difficult to resolve the tension between tradition and change.  Too rigid an adherence to tradition prevents us from progress in achieving our ideals.  A rush to change in blindness to tradition can leave us feeling adrift and lost.  The key must be not to abandon our traditions wholesale, but rather to gradually modify them when and where necessary so that our traditions evolve.  That is what has happened with marriage as we have seen it gradually lose its gender based distinctions emphasizing instead aspects of mutual responsibility and commitment.  To keep the gendered entrance requirements of marriage based upon an allegiance to these past traditional distinctions would be a repudiation of the changes we have made toward gender equality.  No court should be making that repudiation.

 

Meanwhile back in California...

On the other coast,  the California Supreme Court has put a temporary halt to the same-sex marriages in San Francisco.  Eugene Volokh thinks "the Justices are prepared to hear the Mayor's substantive constitutional argument about why the California Constitution mandates allowing same-sex marriages", but that is not how I read the order  nor how the Chronicle explained things.  I think the Chronicle explains it well...

The court sidestepped the issue of whether state law, which defines marriage as a union between a man and a woman, is constitutional. Instead, the court will review only the narrower question -- pressed by state Attorney General Bill Lockyer and organizations opposing same-sex marriage -- of whether San Francisco Mayor Gavin Newsom can ignore the state law if he considers it unconstitutional.

The stay doesn't affect the more than 4,000 weddings performed under Newsom's decree since Feb. 12. But those marriages would be nullified, if the court rules that Newsom lacked the authority to defy the law on constitutional grounds.

That depends on whether the city is covered by a 1978 state constitutional provision requiring administrative agencies to follow the law as written until an appellate court declares it unconstitutional. The city contends the constitutional restriction applies only to state agencies -- a position that looks shaky after Thursday's order, according to some veteran court observers.

[skip]

After Lockyer asked the court to stop the weddings -- touching briefly on the validity of the state law but stressing the narrower issue of the mayor's authority -- City Attorney Dennis Herrera urged the court to look at Newsom's broader constitutional issue if it decided to take up the case.

The court declined Herrera's invitation Thursday and said the validity of the state law could be tested in Superior Court. Within hours, Herrera filed a new suit on the city's behalf, seeking a Superior Court ruling that the marriage law violated the rights of same-sex couples.

So it may be awhile before the California Supreme Court finally looks at the substantive constitutional issue, but when they do it ought to be quite interesting. This is, after all, the same court that ruled (ahead of its time) that interracial marriage prohibitions were unconstitutional in Perez v. Sharp, an important case which I discussed on Wednesday.

UPDATE:  By the way, Mayor Newsom did halt the weddings in SF which should put to rest any sort of argument about him being an anarchist or a tyrant.  He has followed the rule of law.  There is some question about whether the SSM prohibition is constitutional, and there is some argument about whether the mayor is a "state administrative agency" thereby prohibiting him from making independent judgements on constitutionality.  He has constantly deferred to the courts in deciding these matters. 

Perez v. Sharp

One of the reasons I oppose prohibitions on same-sex marriage is because I don't like the government using our genders to determine how we must act.  Not only do I believe this is true even when it comes to marriage, I believe it is true especially when it comes to marriage.  I have no desire for the government to decide I cannot look after my children because a husband must provide for his family.  Nor do I want them to decide my wife cannot work outside the home because a child needs his mother at home with him.  It's not surprising, then, that I find the ban on same-sex marriage to be an obvious form of sex discrimination that should not be permitted.  Andrew Koppelman discusses this argument at length in his book (shown at left) and elsewhere.  [The book also does a great job of explaining some of the conflict-of-laws issues involved in SSM].  Koppelman deals with the objections raised to the sex discrimination argument.  The one I hear the most often is "It's not discrimination because neither men nor women can marry someone of the same sex".  The standard response is the same was said about interracial marriage prohibitions, which leads to the standard rejoinder that such a prohibition was unconstitutional only becuase it promoted white supremacy. 

Last week I noted that Eugene Volokh had given a variation on this theme, by pointing out that whereas separate but equal was not allowed for racial classifications, they seemed to be permissible [at least in a few cases] when it comes to gender.  In response I referred to the 1948 case of Perez v. Sharp [also known as Perez v. Lippold] which I felt illustrated two things quite well.  One is that the discrimination must be looked at from the individual perspective and not the group perspective.  This point was reaffirmed by the Supreme Court of the United States sixteen years later in McLaughlin v. Florida (which made no reference to any motives of white supremacy).  The second point Perez explained was that even if separate but equal were allowed (which it was for race in 1948), such a system can never work with regards to whom one may marry.  Both of these points were made independently of any analysis about motives.  The issue of racial superiority only came in later in an examination of whether there was a compelling justification for the discrimination.  Interestingly Koppelman  does not seem to mention Perez in his book relying instead on McLaughlin (in part perhaps because that was a national precedent and the former was only in California).  Still I find the logic and language of Perez to be quite persuasive.  As I realize that most readers will not read the entire Perez decision, I present here a few relevant excerpts [with internal citations omitted]:

The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals. In construing the equal protection of the laws clause of the Constitution, the United States Supreme Court has declared that the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race. Thus, in holding invalid state enforcement of covenants restricting the occupation of real property on grounds of race, the Supreme Court of the United States declared: "The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.".... Similarly, with regard to the furnishing of sleeping, dining, and chair car facilities on trains, the Supreme Court of the United States has held that even though there was less demand for such facilities among Negroes than among whites, the right of a member of the Negro race to substantially equal facilities was a right of the individual and not of the racial group....In these cases the United States Supreme Court determined that the right of an individual to be treated without discrimination because of his race can be met by separate facilities affording substantially equal treatment to the members of the different races. A holding that such segregation does not impair the right of an individual to ride on trains or to enjoy a legal education is clearly inapplicable to the right of an individual to marry. Since the essence of the right to marry is freedom to join in marriage with the person of one's choice, a segregation statute for marriage necessarily impairs the right to marry.

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Nor can any reliance be placed on the decisions of the United States Supreme Court upholding laws requiring segregation of races in facilities supplied by local common carriers and schools, for that court has made it clear that in those instances the state must secure equal facilities for all persons regardless of race in order that no substantive right be impaired. In the present case, however, there is no redress for the serious restriction of the right of Negroes, mulattoes, Mongolians, and Malays to marry; certainly there is none in the corresponding restriction of the right of Caucasians to marry. A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.

Mayor Newsom and the Law

At Capitalist Lion, Mr. Lion responded to what I believed was a rather polite comment I made defending Mayor Newsom against accusations that he was a felon and that he was violating federal law.  Mr. Lion's response came directly in a post entitled "Nope, Sorry".  The irony of this post was amazing.  Mr. Lion claimed to be correcting what he referred to as my "virtual bouqet of general misunderstanding", yet it turns out I made not one factual error whereas Mr. Lion's post was riddled with them. 

First he accuses Mayor West (of New Paltz, NY) of violating the law.  He doesn't specify what law, but presumably it's the same federal law he has accused  Mayor Newsom of violating, the Defense of Marriage Act.  That's right the mayors are DOMA violators.  Huh?  Here is his explanation....

The DoMA Act [sic] certainly does not say that neither the federal government nor any state is required to recognize same-sex relationships (or unions) from another state, quite the opposite in fact. 

The opposite would be that DOMA requires both the federal government and every state to recognize same-sex unions from another state.  Really?  He then goes onto quote DOMA's defintion of marriage and says "This is in effect a federal law defining marriage."  Despite quoting it, he completely ignores the first part of the section which makes clear that the definition is clarifying what the word means for federal purposes.  It does not forbid a state from using the word marriage with regards to same-sex couples.  Mr. Lion's inability to read gets compounded, though, by his ignorance of high school civics. 

The concept was ratified by the state of California via Proposition 22 by 61%, a margin we like to call an "overwhelming majority" in the politico world

Does Mr. Lion realize that federal laws are not ratified by states?  We might give him a pass because he said "the concept" was ratified, except that he's trying to use this to prove that Mayor Newsom violated "federal law" and he was "correcting" me for pointing out that no federal laws were violated.  Even if one feels that by granting licenses to same-sex couples Mayor Newsom violated Proposition 22--that is only a state law. 

Mr. Lion then goes on to explain how Mayor Newsom has committed over 3000 felonies.  Felonies??  Yes, Mr. Lion cites a section 115 of the California Penal Code which states that knowingly filing a "false" or "forged" instrument is a felony.  He explains

This means that modifiying the state license form to read "Applicant 1 & 2" instead of "Bride and Groom", and then filing that form, is a felony.

Oh is that what it means?  I thought it referred to filing a "false" or "forged" instrument, seeing as that's what the statute actually says.  Maybe Mr. Lion thinks those documents are forged.  If so, he should read the relevant statutes describing forgery.  As with probably every other state, forgery in California requires an intent to defraud.  In particular, there must be some sort of deception.  Mayor Newsom has been quite open about what he has done.  Oh, but Mr. Lion is not done.  He continues his flight of fancy with more false claims.  In explaining why the justices of the Massachusetts SJC are tyrants he writes:

The Judiciary has instructed the Legislature to create law which come into compliance with its ruling.  This, by every reasonable definition, is an act of tyranny. [emphasis original]

Nowhere in the Goodridge decision did the SJC instruct the Legislature to do anything.  It declared that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."  It's also pretty tough to say that this declaration is "an act of tyranny" by "any reasonable definition".  Hyperdictionary gives two definitions of "tyranny".  The second is "dominance through threat of punishment and violence".  There was certainly no threat of violence in the court's decision.  I guess this definition must be unreasonable.  Or perhaps Mr. Lion really meant "some" instead of "every". He just mistyped.   Maybe he's going with the first definition: "a form of government in which the ruler is an absolute dictator (not restricted by a constitution...)".  If that's the case, does Mr. Lion really think the court sees itself as not restricted by a constitution, as opposed to this being merely a matter where the SJC does not share his understanding of the Massachusetts Constitution?  If that's the case, then what good is an amendment going to do?  The tyrants would just ignore it .  After all, they are by definition above the law.  No, if Mr. Lion's assertion about tyranny is more than mere rhetoric he should demand the justices be removed by force.   

Eugene Volokh's Got My Back

Eugene Volokh explains why the comparison between Moore and Newsom is not apt.  His explanation is basically the same as mine, but a little more eloquent and with a little more detail.  I also suspect his explanation will be (rightfully) slightly more influential.  I disagree with Volokh about the merits of the case, but we agree that unless Newsom defies a court order it is perfectly legitimate for him to follow what is a reasonable interpretation of California law.