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COLUMNISTS
TODAY'S STORIES
15.05.2008
Another Election Year, Another Gay Marriage Ruling

The California Supreme Court, as you've probably heard, ruled 4-3 today that the California Constitution provides gays the lesbians the right to marry. Full text of the opinion is here (pdf). The main question, of course, is whether the ruling is correct as a matter of law, but let's leave that aside for now (I can't claim much familiarity with the mess that is the California Constitution--more on this later). It's hard to say what the political fallout from the decision will be--I've never been of the opinion that the Massachusetts ruling had much of an impact on the 2004 race, but I suppose we'll soon get another data point in that debate.

As a Californian I'm quite pleased that my state now recognizes gay marriages. My instinct, though, is still that this is a lost opportunity. The state legislature has passed gay-marriage legislation twice before, and sooner or later it almost certainly would have been signed, either by Arnold Schwarzenegger or by the next governor. It would have been preferable, I think, for this to have been done through the elected branches first. That said, the question will ultimately be decided at the ballot box, and rightly so. Social conservatives are trying to place a constitutional amendment on this November's ballot that would outlaw gay marriage; they've probably gathered enough valid signatures to do so, but if the amendment doesn't make it on the ballot this year, it will in 2010. So if gay marriage in the Golden State is to endure, it will have to do so with the approval of a majority of voters eventually. (Schwarzenegger, for what it's worth, says he respects the ruling and opposes the ballot initiative to ban gay marriage.)

My fear is that the judicial involvement here will always taint a victory that might otherwise have been achieved through democratic means. Then again, the outcome of the initiative is very much up in the air, and it's possible that there's a non-trivial number of voters who would have been inclined to vote against gay marriage but will now be reluctant to nullify marriages that have already taken place.

One complicating factor is how absurdly easy it is to amend the California Constitution: You just need to collect signatures (from enough voters to account for 8 percent of the total votes cast in the last gubernatorial election) and win a simple majority vote--which explains why the state constitution is so cluttered with junk. One might very well ask what the point is of having a constitution that can be amended at will by a simple majority of voters, but the upside, I suppose, is that if they lose this November, proponents of gay marriage can just wait a few years until the generational demographics of the state become a little more favorable and try again. My guess is that gay-marriage opponents, who managed to push through an initiative statute that banned gay marriage in 2000 (it passed with 63 percent of the vote), are wishing they'd gone for the whole shebang and passed a constitutional amendment (rather than just a statute) when they had the chance.

Update: To clarify, had the gay-marriage bill passed by the legislature been signed by Schwarzenegger, it probably would have been struck down by the courts--in California, a ballot-initiative statute can only be overturned by another ballot initiative, not by the legislature, unless (as in this case) it ends up being unconstitutional. But it would have looked far different had the Court issued this ruling after both elected branches had given gay marriage the stamp of approval.

--Josh Patashnik

Posted: Thursday, May 15, 2008 3:22 PM with 17 comment(s)

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liberal reformer said:

Just before bouncing back to my addiction, TNR online, I ambled over to the Times' website and learned of this decision. My very first thought when I saw the headline was "no, not more red meat for the social conservatives". Now, I do believe that the impact of the gay marriage issue in 2004 was overblown but at the same time, we don't need to be handing the Gary Bauers newly - manufactured projectiles. This should have been done through the Assembly. You are correct thjat the California Constitution is a Rube Goldberg contraption, Josh.

May 15, 2008 3:44 PM

drdannyu said:

I'm with you on this, Josh.  While I am certainly glad that there's another state in the union where I can actually have legal equality with straight couples, I think that the legitimacy of gay marriage in California would have been strengthened by legislative or popular action, as opposed to judicial fiat.  However, it seems to have worked out pretty well in Massachusetts, so we'll see.

And, if McCain wins and his victory is somehow tied to this ruling, I'm going to puke my guts up.

May 15, 2008 3:47 PM

prnoonan said:

Gay marriage rulings are apparently quadrennial, like the Olympics and leap year and... what else happens every four years?

Also note that, as in the Massachusetts Goodridge case, six out of the seven current members of the court were appointed by Republicans.  Ponder whether you are cynical enough to believe that's a coincidence (think O'Connor's vote in Casey).

[I want to note that I support gay marriage as a policy question and generally echo Josh's thoughts about how this would have been better had it been democratically enacted.]

May 15, 2008 4:09 PM

WoodyBombay said:

"what else happens every four years?"

The National Journal declares the Democratic presidential nominee to be the most liberal member of Congress.

May 15, 2008 4:21 PM

DDovenbarger said:

While I suppose I understand the knee-jerk reaction of some to say, "I wish it had been done by the legislature," such sentiments are legally and constitutionally ignorant unless you believe that a three-part system of government of co-equal branches is equal as long as the judiciary is subordinate to the legislature.  A court is required to determine and resolve the actual cases before it by examining the existing and controlling law.  It is never a legal option for a justice to say, "I think the rights of this party are being violated, but I will wait for some other branch to supply a remedy.  I hope it does."  Being a powerful branch of government, the judiciary can only persist if that power is exercised, even if cautiously, when called upon by a wronged party to a lawsuit.

On a moral note, it is rather spineless to say that we are for progressive change as long as it comes under the political cover of demographically popular measures.  I suppose Lincoln could have said, "I think the slaves should be free, but I will await the decision of the legislature to make a new law regarding their status."  At some point, moral values to provide wrongfully targeted minorities with meaningful progress has got to trump incrementalism of the legislative process.   If you read the minority opinions, you will see the moral vacuity of the dissenting justices who cast about for some basis for denying justice and equal protection by appealling to the most base instincts in the mob--bases that for decades have been discredited in a constitutional scheme of government.  

May 15, 2008 4:38 PM

anonevent said:

Since Mildred Loving recently died, the story came back up of the obstacles her and her husband had to deal with to be married.  She was black, and her husband white, and when they married in Virginia, it was actually illegal for interracial couples to marry.  They were arrested, and forced to leave the state until they challenged the law in the Supreme Court.  The won, and because of that, race cannot be used to deny marriage.  If they had not challenged that, I'm pretty sure we would still have laws against it.

Some things, when they affect individual rights, have to be challenged in the courts, because the legislature, by definition, does not concern itself with individual rights.  Gay marriage is one of those issues.

May 15, 2008 4:44 PM

BHLnyc said:

As drdannyu alludes, the difference between last time and this time is that there's now a precedent to point to. The sky did not fall in on Massachusetts after gay marriages were permitted there and that has to be a powerful counterargument to right wingers' claims that same sex unions "harm the family." I agree that a legislative solution would have been preferred, but I really don't feel that this will be as potent a weapon in 2008 as it was a few years ago when dire predictions could not be as easily refuted.

May 15, 2008 4:52 PM

prnoonan said:

DDovenbarger: "It is never a legal option for a justice to say, "I think the rights of this party are being violated, but I will wait for some other branch to supply a remedy.  I hope it does.""

Check out these cases (en.wikipedia.org/.../Political_question) and let me know if you still think that.  

For a more realist (vs. doctrinal) answer, check out this article about blowback from controversial court decisions: www.michiganlawreview.org/.../Klarman.pdf.  Courts duck tough questions all the time.

May 15, 2008 4:59 PM

drdannyu said:

Let me make something clear -- I don't think that the marriages in California will be any less legitimate for being sanctioned by the judiciary.  Nor do I think that the court acted wrongly, or that judicial redress is an inferior method of correcting social wrongs.  However, there will now be the perception (God, how I miss HTML tags) of illegitimacy, and the attendant resentment and political capital and the like.  Here in Maine, the Christian Civic League (a philosophical oxymoron, for those familiar with them) will make a lot of hay with this as they press their latest homophobic referendum, and I wish they and their ilk were denied the fodder.  It's a lot harder to rally the troops when it was the people (or their elected representatives) who conferred the social change than "activist judges" and other reactionary tropes what did it.

May 15, 2008 5:05 PM

DDovenbarger said:

I appreciate the reference to the political question doctrine.  As a doctrine, it specifically applies generally to those cases in which there is a dispute between branches of government and the court specifically is stating by conjuring up the political question doctrine that it is not taking a side in the dispute.  The situation I referenced is not a political question in any of the normal meanings of that doctrine.  (If it were, any case under the equal protection clause of a constitution would be a 'political question.')  Furthermore, the situation I see the court here facing is not one in which it could not take a side.  That is, there was governing law with relevant precedent to decide the issue.  In those situations, (I.e. Where the judges really can say bvased on existing law "I think the rights of this party are being violated," it has a duty to rule.  The political doctrine is best reserved where the other branches of government are in dispute over questions that are not manageable because there is no relevant legal guidance.  The problem so clearly visible in this situation is that precedent in the equal protection area pretty clearly suggests (even if by a close call) that treating similarly situated persons differently simply because of non-relevant criteria is unconsitutional.  Once that appears to be the case, the court really must act.

The blowback concerns of the law review article are interesting, but are essentially extrajudicial concerns.  As someone managing a society, I would worry about them, but as a litigant or judge, they are irrelevant to making a just and fair determination of the case in front of the court. Sometimes fair and correct rulings have unfortunate 'blowback' consequenses.  I don't think we want to say that because of the potential (real or imagined) consequences, we want judges to change their determination of what the law is.  

Imagine this:  You sit as a judge and the evidence show you that the criminally accused man in front of you is totally innocent.  You can declare him innocent and free him, but you think he might be lynched by an angry mob.  Do you find him guilty anyway because of your fear of blowback consequences?

May 15, 2008 5:35 PM

prnoonan said:

Maybe it's a good thing that courts don't care about blowback (though, in my first post, I insinuated that some judges/justices do...).  At the end of the day, I am happy with this change in policy and applaud the advance of equality for gays and lesbians (as a resident of Mass., however, I will miss the economic benefits of gay weddings for out-of-state couples).  I am worried about the political ramifications, but I dont think they will be as bad as 2004.  We'll see.

I do want to note one thing though.  We're sitting here talking about a court decision that is acknowledged to be ONLY about nomenclature---i.e., not a difference in the rights of marriage vs. domestic partnerships, just the terminology.  Meanwhile, Dubya and the Rs in Congress are stopping EDNA (Employment Non-Discrimination Act) and the Hate Crimes Bill.  Partly this is the fault of our federal system, but I am dismayed at how we have focused on the issue of marriage (which is of concern to more bourgeois gays, esp. the question of marriage vs. civil unions) and neglected the very real problems gays in this country continue to face (esp. more working-class gays) of getting beaten up, fired, kicked out of your apartment, etc., just for being gay.  And I genuinely think that there might be some causation between advances on the one front and the lack of progress on the others.

May 15, 2008 5:57 PM

prnoonan said:

Also, to give proper credit for the sentiment behind my latter point, this is the same thing pointed out by Gunner Myrdal in An American Dilemma.  He noted that whites and blacks in the 1930s and 40s had different hierachies of preference on issues, but there should have been room for compromise as they tended to be inverse in nature.  E.g., blacks cared most about violence (lynching and police brutality) and economic concerns (peonage, opportunity to earn a living, fair enforcement of contracts); whites cared more about miscegenation and social equality.  I think there's something similar going on here -- i.e., many conservatives are not opposed to non-discrimination in employment and are greatly upset by violence such as that against Matthew Shepard; but they are fundamentally opposed to gay marriage.  I would say that the opposite were true a lot of the time -- i.e., that the gay community cares more about EDNA and Hate Crimes than marriage vs. civil unions --- but that might not be the case for elites who live in tolerant, prosporous areas (Boston, San Francisco) that have state law versions of those protections (and don't really need them anyway because of societal norms).

May 15, 2008 6:16 PM

derekcatsam said:

I've never understood the argument that minorities need to wait -- years, decades, however long -- for the majority to decide to stop discriminating against them. Isn't protecting the rights of minorities that the majority tramples a huge reason for courts in the first place and especially the Supreme Court? If something is unjust today why must we wait for the caprices of the majority who in many cases benefit from those injustices to change?

dcat

May 15, 2008 7:53 PM

liberal reformer said:

Derekcatsam: It is called "prudence" and "strategy". Sure, we all (well, most all TNR readers, at any rate) would like to see gay marriage become the law of the land. But there is a thing called backlash. The trendlines of gay rights are moving in the right direction. It is largely a generational thing. You can go for the whole enchilida now but be prepared for the biteback effects, i.e., freshly motivated right activists, state constitutional amendments banning gay marriage, etc.

May 15, 2008 9:43 PM

butchie b said:

Yes, libref, see Roe v. Wade, which energized a generation of GOP activists.

I, for one, do not support gay marriage, but if we are to have it, and in 20 years we will, judging by the polling of 18-29 year olds, let's let the people decide.  It is not at all clear to me that the traditional understanding of marriage is an equal protection violation.

Of course, no discussion would be complete without a slippery slope reference:  If there's nothing magic about the traditional definition of marriage, what's magic about 2?  By what legal principle do we say gay marriage is OK, but polygamy/polyandry are not?  Indeed, by what principle do we not recognize ANY arrangement?

May 16, 2008 11:38 AM

jts44 said:

It would be better if we could abandon the word marriage altogether and replace it with civil union for everybody - str8, gay,polygamy, polandry - the whole ball of wax.

May 16, 2008 12:56 PM

jm_rice said:

Butchie b, it's brave of you to say you're against gay marriage in these precints.  The chronically wrongheaded Patashnik gets it right for a change when he says that having the issue decided by a court "taints" it.

This has been argued to death here, but since the usual suspects are mouthing the same old platitudes -- in some cases self-serving, in others merely fashionable -- they deserve the same old rejoinder.

Marriage is not a right, and I'm tired of the phony "equal rights" argument.   Its advocates can't justify gay marriage any other way -- civil benefits of marriage can be and are granted to same-sex partners, obviating the need for gay marriage -- so they just declare marriage a right, end of discussion.  The biased media try to influence the debate, likewise by declaring gay marriage, like abortion, a "right" -- abortion "rights," the gay marriage "right".  By implication this paints opponents of abortion or gay marriage as bigots trying to deprive others of their "rights".

Marriage is by definition between a man and a woman.  Redefining marriage to suit he fancy of a bunch of drama queens does not change its nature.

Those who say the institution of marriage isn't harmed by gay marriage are wrong.  Gay marriage is to marriage what drag is to womanhood.  And that's fine as a burlesque.  But turning either into a sacred right, an entitlement, is just another grotesque travesty of our enervated, media-addled, sloth-disguised-as-tolerance, "Me! Now!" generation.

May 16, 2008 1:53 PM