I think the California Supreme Court got it right with its decision yesterday granting same-sex couples the right to marry.
Rather than "create a new right" the court looked at the state constitution and relevant precedent caselaw and determined that if the state was going to grant the right to marry to hetero couples, under equal protection laws it could not deny same-sex couples that right. So, rather than "decide" that gay couples should be allowed to marry, or "create a right" where one didn't exist before, they found that the right existed but was being denied to certain people in violation of the constitution and how it had been construed over state history.
A cogent analysis of the decision (and anticipation of predictable fall-out) can be found, as usual, at Unclaimed Territory.
Other things I liked: The court went on to say that if the state wanted to get out of the "marriage" business altogether and just grant civil unions or domestic partnerships, leaving "marriage" to the churches (many of which would presumably not grant gay marriage), that's fine as long as the state grants the same rights in civil union to gay and straight couples.
It also found that "separate-but-equal," granting gay couples civil unions or domestic partnerships, while reserving marriage for opposite-sex couples, was not equal at all. The reason for this ("denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same sex couples enjoys dignity equal to that of of opposite-sex couples") has always been apparent to me, I'm not sure why it's been lost on so many others.
And as for the other popular right-wing canards "What about polygamy?" "What about incest?" "What about bestiality?", well, this decision seems to say that if the California legislature wants to grant the right to marry to someone who wants to marry three sheep that he is related to, they have to extend that right to gay people, too.
Rather than "create a new right" the court looked at the state constitution and relevant precedent caselaw and determined that if the state was going to grant the right to marry to hetero couples, under equal protection laws it could not deny same-sex couples that right. So, rather than "decide" that gay couples should be allowed to marry, or "create a right" where one didn't exist before, they found that the right existed but was being denied to certain people in violation of the constitution and how it had been construed over state history.
A cogent analysis of the decision (and anticipation of predictable fall-out) can be found, as usual, at Unclaimed Territory.
Other things I liked: The court went on to say that if the state wanted to get out of the "marriage" business altogether and just grant civil unions or domestic partnerships, leaving "marriage" to the churches (many of which would presumably not grant gay marriage), that's fine as long as the state grants the same rights in civil union to gay and straight couples.
It also found that "separate-but-equal," granting gay couples civil unions or domestic partnerships, while reserving marriage for opposite-sex couples, was not equal at all. The reason for this ("denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same sex couples enjoys dignity equal to that of of opposite-sex couples") has always been apparent to me, I'm not sure why it's been lost on so many others.
And as for the other popular right-wing canards "What about polygamy?" "What about incest?" "What about bestiality?", well, this decision seems to say that if the California legislature wants to grant the right to marry to someone who wants to marry three sheep that he is related to, they have to extend that right to gay people, too.
The dissent (and not surprisingly The Wall Street Journal editorial board) get it wrong, I think, when they say gay marriage should be left to the voters. That's not how the law works in constitutional republics. An independent judiciary must review questions of constitutional interpretations. If left to a popular vote, the core rights of unpopular groups will predictably be violated.
Good decision. I like it. Ahhnaald is being pretty cool about it, too. Good for him.
Good decision. I like it. Ahhnaald is being pretty cool about it, too. Good for him.
UPDATE
I would also add that the dissenting judges, in saying things like "gee, we just got civil unions in this state, why don't we wait and see how that turns out?" aren't doing their jobs as judges. Judges don't issue policy statements, they decide cases, and (as Glenn Greenwald often argues) essentially indulge in judicial activism by reasoning this way.
5 comments:
I think right-wingers are either disingenuous or deluded by conceptual blinders when they argue against gay marriage on legal grounds.
As for those canards: well, bestiality would be covered under the rather simple logic that consent cannot be granted - I'm sorry, but Benny the Sheep will not be able to say "I do." As for incest: obviously when a minor's involved, there are other laws to cover it; if minors are not involved, if reproduction is a possibility there are public health issues; if it's not...frankly, why is it the state's business? Ditto with polygamy so long as no other abuses are going on. Then, the notion that there's a nation of incestuous lovers just chomping at the bit to get married is...uh, shall we say, delusional. As for polygamy: most actual polygamists (as in the news recently) seem to be rather on the same side as right-wingers concerning most social issues.
I'm unsure whether the state really has any legitimate interest in marriage - but if it does, and if it chooses to recognize marriage as anything other than a contract entered into by two free individuals concerning property rights, etc. (and presumably, it does - I'm assuming "marriage" is more than just a contract, although you'd be better equipped than I am to analyze that one), I can see no reason, given existing non-discrimination laws, it can choose to say which people can and cannot marry.
Ironically, of course, every last argument social conservatives make pro-marriage and against living together, for heterosexuals, suddenly gets ignored and tossed out the window where gay couples are concerned. Ironic, but unsurprising...much in the way "family values" rhetoric that argues against middle-class, white women working outside the home suddenly finds those arguments missing when the working woman is working-class or non-white...then by god she should be compelled to get a job to support her child.
I think right-wingers are either disingenuous or deluded by conceptual blinders when they argue against gay marriage on legal grounds.
While I don't know if they were authored by "right-wingers", read the two dissents at the end of the opinion I linked to for thoughtful, reasoned criticism of the decision. I think both judges expressed their personal belief that gays should have the right to marry, but felt the majority overstepped its bounds.
But at their core, both dissents boil down to the two familiar refrains: the ruling "creates a Constitutional right from whole cloth" and any redefinition of traditional "marriage" should be left to the voters.
So the crux is "Is having your union called a 'marriage' a fundamental right under the California constitution?" I think the majority, as I've said, made a pretty persuasive case that it is.
Then the "creating a right" argument fails, because clearly the right already exists, as it is already being extended to opposite-sex couples. And "leave it to the voters" fails because the whole point of constitutional guarantees is that they are a countermajoritarian protection.
In a general sense, I've always been suspicious of the argument that "creating a right" is such a horrible threat to the republic, especially since it is usually wielded by the same conservatives who are supposed to be the "get the government off the backs of the people" people, those who want their precious 2nd Amendment to be so broadly and liberally interpreted, public safety threats be damned.
Not that I'm conceding that a "new right" was invented here, as I've said. What they mean when they say that is really that they think the judges have construed a constitutional right too broadly. And I have debates with some very thoughtful, intelligent people about this.
My point is, well what's the big harm if the people are given a little added protection from government interference? Isn't that good?
I don't really want to characterize the response I get - I've invited my friends who disagree with me to comment here, and I hope they will - but one response I've heard is about Roe v Wade, that a big problem is the backlash. That if you "create" a right without amending the Constitution, taking the process away from the states and the voters, you're going to have, as we have, 35 years of embittered controversy.
To which I guess I have to say...."Good!" Given the choice between dealing with whole Operation Rescue shitstorm and 35 years of backalley abortions and no severely restricted reproductive freedom, obviously I'll take the latter.
It's sort of like criticizing Brown v Board of Ed by saying "oooh but you're gonna piss off the KKK!"
BTW I can think of one case where a constitutional right was actually created out of whole cloth, a completely absurd decision that was a huge dagger in the heart of states' rights which - of course! - conservative just LOVE.
What was this "right?" It is the right for a presidential candidate to have his ballots re-counted under a uniformed standard.
But wait! you say. Surely that's not the law today! If that were the case, then all state elections would be unconstitutional, because surely there are still lots of states with non-uniform recount standards!
And you're correct! That's why the decision also said "Uhhhh, this finding is only good for this one case. Don't follow it afterwards."
I trust you know the case to which I refer...
when I wrote "and no severely restricted reproductive freedom" of course I meant "and severely restricted reproductive freedom."
No "no" there.
And no "there" there.
There, there.
Judging from your last comment, you're posting from Oakland then?
Post a Comment