Big Lizards:Blog:Entry “It Just Keeps Getting Better and Better”

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October 6, 2006

It Just Keeps Getting Better and Better

Hatched by Dafydd

In my previous post, Judicial Tyrants Teetering On the Brink, I discussed the California state appellate court that overturned the ruling by a San Francisco court requring same-sex marriages (SSMs) in this state, regardless of the 2000 ballot measure that restricted marriage to one man, one woman. I rather gloomily (and perhaps prematurely) wrote the following:

The sad part is that it was evidently an integral part of the ruling that in California, domestic partnerships are virtually the same as marriages.

In this, I foolishly relied upon the Associated Press story, which stated in unambiguous terms:

In reversing the March 2005 ruling of a San Francisco trial judge, the 1st District Court of Appeal agreed with the state's attorney general, who argued that California's ban on same-sex marriage does not discriminate against gays and lesbians because of the state's strong domestic partner law.

Lawblogger Xrlq was skeptical, however. Having at least skimmed the primary source (the court's opinion), he commented that "What I've seen so far indicates that the principal holding was that marriage is what the legislature/voters say it is - not that gays have a fundamental right to marry, but that right is satisfied by the domestic partnership law."

Intrigued (and more hopeful), I scurried after later, completer articles, and I found this Reuters piece. It completely backs Xrlq's position; if anything, it goes even farther... the state circus in fact enunciated a ringing endorsement of democracy over judicial tyranny:

"The Legislature and the voters of this state have determined that 'marriage' in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning," the California Court of Appeal held.

"We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem," it said in a majority opinion written by Justice William McGuiness....

The appeals court reversed a lower court, which had overturned California's ban on gay nuptials in a lawsuit triggered by the marriage licenses San Francisco briefly issued to same-sex couples in 2004.

"Courts in this state simply do not have authority to redefine marriage," the appeals court said.

It said a voter initiative or legislation would be required to legalize same-sex marriage.

This is a tremendously stronger slapdown of the SSM crowd than AP reported, and I am correspondingly much happier with it. However, one of the judges, Justice J. Anthony Kline, dissented. I hesitate to characterize his dissenting argument on the basis of a media account ("once bitten..."); but since Reuters seems to have gotten the rest of the story right (that is, it matches Xrlq's read of the opinion), I'll go for it.

Kline dissented on the grounds that domestic partnership laws constitute an unconstitutional "separate but equal" institution:

In its ruling Thursday, the court noted gay couples in California have rights comparable to married heterosexuals thanks to domestic partnership laws.

But gay rights activists said comparable rights are not equal rights, and, citing Justice J. Anthony Kline's dissent, they said the majority carved out an unconstitutional "separate but equal" standard for gays by supporting domestic partnerships, which Kline compared to laws enforcing racial segregation.

The domestic partnership act is "a form of pseudomarriage that stigmatizes homosexual unions in much the same way 'separate but equal' public schools stigmatized black students," Kline said.

"Like separate educational facilities, domestic partnership and marriage are 'inherently unequal,"' he said.

This is an emotionally powerful argument, but it's logically flawed. Let me take a few thousand words to show why that's obvious...

Origins of desegregation

First, what is the point of the Civil Rights Amendments and the racial desegregation they ulimately spawned? Prior to the Civil War, North America had a 250 year history of racial slavery stretching back long before the founding of America; and the West had an even longer tradition of racial slavery. (So did the Arabs and Turks, but that's irrelevant to this point.)

The Civil War was fought, whatever Southerners might absurdly argue, to end the practice of slavery. There were proximate causes, but that was the underlying one. But why is slavery wrong? Why should we put 600,000 soldiers into the ground just to end an institution that had stood in this place for two and a half centuries?

The Civil War was fought over the unique and unprecedented proposition that underpinned the very founding of our country:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In the end, no argument for slavery, no matter how recondite, could batter down this simple, "self-evident" truth... if all men are created equal, then how can a whole race of men be condemned to slavery merely because of their skin color?

Once the nation finally accepted that argument (with the Civil War as a resounding exclamation point), desegregation was the inevitable result: because people being what they were, segregated public institutions, even if they began as equal, would in short order become very unequal.

Unequal inequalities

But not all inequality is wrong, let alone unconstitutional. We do not outlaw income disparity; nor do we follow the lead of Kurt Vonnegut's seminal short story "Harrison Bergeron" and handicap the talented so that they're no better than everyone else. What we hold to be "self-evidently" equal is the essence of personhood; and the laws we strike down are those that discriminate solely upon what a person is, not what he chooses to do.

Thus, the actual corollary to the segregation laws for gays would be a law that said, for example, that children determined to have "homosexual tendencies" were required to be educated in separate schools from those other kids who have "heterosexual tendencies."

So the first error in Kline's argument is that the marriage laws do not discriminate in such a fashion; they don't even mention heterosexuality or homosexuality -- and such a distinction is necessary for a law to discriminate against a person, rather than against an action: without a detailed description of the subset of humanity that is to be put down, how would anyone know who to discriminate against?

Segregationist laws always included a legal description of what makes a person black or white. The marriage laws contain no such distinction between heterosexual and homosexual... so right away we know Kline's argument is off base.

Equal equalities

Moreover, the laws are exactly the same for all genders and sexual preferences.

Lambda disagrees:

Jon Davidson of the gay rights group Lambda Legal said the California law was unfair, and legal analysts expect lawsuits over same-sex marriage will continue for years across the United States.

"This violates a fundamental right that all people have in California, which is to marry a person of their choice," Davidson said.

But this is nonsense; there is no such right "to marry a person of their choice." There are many rules:

You can only marry a person of the opposite gender --

Who is not already legally married --

Who is not too consanguineous to you --

Who is of legal age --

And who consents to marry you;

In addition, you must obtain a marriage license first.

(There may be other restrictions as well.)

Note that the exact, same rule applies to men and women, to gays and straights, and to all races. There is no extra restriction on gays; a gay man can marry any woman who fits the above requirements, just as a lesbian can marry any man who qualifies as above... just as with straights.

Not even SSM advocates actually argue that the law is different for people with different sexual preferences; what they really argue is that it's easier for straights than gays to obey it. It's a disparate-impact argument, not an equal-rights argument: since it's harder for gays to find an opposite-sex person they want to marry than it is for straights, they argue, it should be unconstitutional.

But it's likewise harder for swingers to find a single person they want to marry; they would prefer to marry half a dozen folks together. So does that mean the Constitution requires we legalize polygamy?

At this point, I start to get out of my legal depth: I only play a sea-lawyer on the web... I'm not really an attorney! Even so, it's my understanding that "disparate impact" theory is based in statute -- specifically, Title VII of the Civil Rights code, which relates specifically to employment discrimination. Beyond the obvious (marriage is not an employment contract), there is also the fact that even if some statute could be stretched to apply a disparate-impact theory to marriage, it would be a general statute... and there is a more specific statute, the Defense of Marriage Act, that explicitly restricts marriage (in federal cases) to one man and one woman; in addition, nearly every state has a similar act either as state law or in the state constitution.

The specific trumps the general, so this argument collapses upon inspection. Marriage laws are not in any way "unequal;" and if they have a disparate impact on people who prefer to marry members of the same sex -- or who prefer to marry their first cousins or marry two women at the same time, or marry a woman who doesn't want to get married -- that's too bad for them, but it doesn't make marriage law unconstitutional.

Who rules?

Finally, there is the ultimate question: who controls society? Another element of the Declaration of Independence -- which is actually federal law, by the way, one of the "Organic Laws of the United States" -- makes the answer to that question very clear:

To secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In no state of the United States have "the governed" ever consented to SSM; but if they did, I would argue that they do have that right: if the good people of the Commonwealth of Massachusetts were to enact through referendum (or through their legislature without the lege being compelled by the courts) laws allowing gay marriage, sibling marriage, or polyamorous marriage, I say fine; that is the job of the democratic arms of government, not the judicial.

When the courts order SSM, they usurp power that rightfully belongs to the voters. There is no clause nor amendment to the Constitution or any state constitution that says people have a "fundamental right" to "to marry a person of their choice;" some courts simply made that up, like the "right" to an abortion.

So there is a clear separation of powers argument against SSM that I doubt Justice Kline even considered.

The end -- at last!

As usual, it takes a powerful lot more argument to knock down a crazy theory than to propound one. But this is a nutter idea, that denying the "fundamental right" of gays "to marry a person of their choice" is the legal and moral equivalent of the discredited "separate but equal" doctrine. Such an argument results from the muddled and narcissistic emoting that masquerades as ratiocination at university today, where what matters is not what folks do -- but how they feel about themselves.

It has no place in a court of law.

See? I told you it was obvious!

Hatched by Dafydd on this day, October 6, 2006, at the time of 6:51 AM

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Comments

The following hissed in response by: yetanotherjohn

I agree with your well put arguments on gay marriage. For the courts to find a right in a constitution that is over 100 years old and whose writers would have been aghast at thinking anything they wrote would have created a right to, let alone allowed, gay marriage is bordering on the ridiculous.

I will however part company with you on your characterization why the war of northern aggression was fought. It is true that both sides had passionate advocates on the issue of slavery. But the cause was what rights the states retained and what rights the federal government derived from the union. The issue that was testing the question of the division of rights was slavery, but that doesn't make it the reason we fought.

To put it in more modern terms, the war on terror is not being fought by jihadis on whether they have a right to blow up civilians, but on whether we have a right to live outside of their sharia legal system. They say we don't, we say we do. The outcome of the war will determine which is correct, just as the late unpleasentness decided to what extent the federal government could impose its will on state governments.

The above hissed in response by: yetanotherjohn at October 6, 2006 8:01 AM

The following hissed in response by: snochasr

I think you err when you even permit this as a discussion of "rights" at all. There is no such thing as a "right" to marry in the legal sense. It is a government function which confers legal benefit (supposedly) to people who meet the qualifications established by the government through their elected representatives. It is much more like a fishing license than a civil right. You have to be of a certain age, a resident of the state, etc.

Conversely, no one is abridging this so-called right at all, so how can it be a civil rights issue? Right now, there are any number of churches who will perform a variation of the marriage ceremony for you, and the law is absolutely, as it should be, silent on the matter. Even without a church, there is absolutely nothing stopping two people of the same gender from cohabitation, sexual relations of any stripe, joint property ownership, and other rights of contract, based on their same-sex status. Again, as it should be. The ONLY reason, in my mind, why SSM is an issue at all is that gays want to FORCE their religious beliefs on the rest of us-- the exact opposite of their claims of victimhood.

The above hissed in response by: snochasr at October 6, 2006 8:16 AM

The following hissed in response by: wtanksleyjr

The Civil War isn't well-called "the War of Northern Agression", although it certainly did hinge on what rights the states retained. The Southern states were very clear before the war on the reasons they would be willing to secede and to fight: to continue the institution of slavery.

There may have been legitimate argument over whether or not secession was retained as a state right; there can be no argument that secession wasn't performed because of slavery.

The above hissed in response by: wtanksleyjr at October 6, 2006 9:33 AM

The following hissed in response by: Big D

Your repeated references to sea lawyer - I assume you've read "Two Years before the Mast"? Just wondering.

My own objection to gay marriage was the avenue by which it was being pursued. I'm suspicious of any group that uses the courts to get what they want, as opposed to going through the legislature or the people.

I also suspect that most activists don't really care that much about gay marriage anyway - it is just a wedge issue to push/promote other agendas, raise money, or what have you. I don't appreciate being used like that.

The above hissed in response by: Big D at October 6, 2006 9:53 AM

The following hissed in response by: Socratease

I don't think gays are pushing SSM as a "wedge issue" so much as they are trying to arrogate to their lifestyle the stature and legitimacy of established institutions. They don't really want to build a reputation of gay marriage as a positive social influence (or they'd set about doing so without state subsidies), but rather to steal the stature that heterosexual marriage has built over millenia. This is the same thing we saw with the issues of gays in the Boy Scouts, gays in the St. Patrick's Day Parade, etc.

I'm with Dafydd: If a state wants to vote to legalize SSM, that's their privilege. But we're talking about an institution older than history that is inextricably linked with the perpetuation of the human species here. It's not something that should be tinkered with by a handful of unaccountable judges just to satisfy some trendy theory of social progressives.

The above hissed in response by: Socratease at October 6, 2006 11:16 AM

The following hissed in response by: Dafydd ab Hugh

Snochasr:

Even without a church, there is absolutely nothing stopping two people of the same gender from cohabitation, sexual relations of any stripe, joint property ownership, and other rights of contract, based on their same-sex status.

Well... now there isn't; but that's only been true for three years, ever since Lawrence v. Texas.

And most conservatives are furious about that case, believe it was another example of "creating rights" (as with Roe v. Wade), and desperately hope a future Supreme Court overturns Lawrence, as Lawrence overturned Bowers v. Hardwick.

I part company with conservatives on this one; I believe that at the core, there is a wall of individual liberty that the State cannot reach except in the most dire exigencies of dreadful war... and nobody ever propounded that we had to curtail homosexual activity because there's a war on.

I think that most conservatives believe that we have no rights but what the government "gave us" in the Constitution; that where the Constitution is silent, the State can literally legislate anything.

So, for example, the Constitution is silent upon sartorial matters -- so it seems to me that the natural consequence of this kind of conservatism is that the government could require us all to wear a uniform of Nehru jackets, Superman capes, and berets, so long as there was no intent to establish a religion of Monkees worship.

But I believe liberty and a great many rights predate the Constitution (freedom of speech, assembly, the right to self defense, the right to engage in commerce, etc.) That whenever a government infringes those rights, it's proper for the Court to strike down the offending statute; and that the Ninth Amendment means what it says.

I certainly consider one's own sexuality to be one of the core liberties; thus, even though there is no explicit enumerated right to have gay sex, I believe regulating sex lives is far outside the proper powers of the State.

But I'd say that for 95% of conservatives or more, the "ick" factor of homosexuality outweighs the idea of liberty; their motto is "give me liberty... but not that much!"

Dafydd

The above hissed in response by: Dafydd ab Hugh at October 6, 2006 1:29 PM

The following hissed in response by: snochasr

It may then surprise you to learn that I basically agreed with the Lawrence decision. That is, that private sexual behavior between consenting adults may not be regulated by government. I also insist on a full reading of the decision, including: "The Court distinguished the holding here from instances that may involve minors, persons who might be injured or coerced, public conduct, prostitution, or whether the government must give formal recognition to any relationship that homosexual persons seek to enter." In other words, the decision in Lawrence specifically precludes its use as a precedent for establishing gay marriage.

I think I should also point out that the law overturned by Lawrence was very rarely enforced, and thus my statement that "nothing" is stopping gays from being married in anything but the public legal sense. Socratease is right. This isn't about rights anyway, it's about forcing acceptance of something the majority is unwilling to accept.

The above hissed in response by: snochasr at October 7, 2006 8:55 AM