Here's how the California court put it (PDF):
[T]he opposite-sex requirement in the marriage statutes is rationally related to the state’s interest in preserving the institution of marriage in its historical opposite-sex form, while also providing comparable rights to same-sex couples through domestic partnership laws.... (See Lawrence v. Texas, supra, 539 U.S. at p. 585 (conc. opn. of O’Connor, J.) [stating in dicta that “preserving the traditional institution of marriage” is a legitimate state interest].)...So there you have it. (Satisfied, Professor Schweber?)
In addition to tradition, the Attorney General argues the marriage laws are justified by a related state interest in carrying out the expressed wishes of a majority of Californians....
Of course, the mere fact that a majority wishes it so cannot save an otherwise unconstitutional law. Majoritarian whims or prejudices will never be sufficient to sustain a law that deprives individuals of a fundamental right or discriminates against a suspect class.... But, in reviewing a challenged law under the rational basis test, we must give due deference to the Legislature’s considered judgment....
An emailer points out that the concurring opinion by Judge Parrilli quotes a phrase from blogdom's James Lileks:
If respect for the rule of law is to be maintained, courts must accept and abide by their limited powers. The Constitution is not some kind of “origami project” to be twisted and reconfigured to accomplish ends better left to the democratic process.Of course, it takes no origami level expertise to fold the judge's words back on themselves and accuse the court of twisting and reconfiguring the law to avoid interfering with what the majority wants. The key phrase is "better left to the democratic process." The judges think this matter is better left to the democratic process, and the Constitution can be folded into that shape. Predictably, the judges pat themselves on the back for this handiwork. They have, they tell us proudly, upheld the rule of law by accepting their limited powers. But we onlookers know all too well how to refold that one and say that the rule of law requires not only that a judge resist acting where there is no legal right, but also that a judge must say what the law is and do what it requires.
पोस्ट्स
१४ टिप्पण्या:
" the rule of law requires not only that a judge resist acting where there is no legal right, but also that a judge must say what the law is and do what it requires."
Very true. That is why I reject the attempt by liberals such as Paul Gewirtz and Lori Ringhand to define judicial activism in terms of a judge's willingness to strike down a law; see comments here. "It is not Judicial Activism to strike down a statute. The act itself is inherently neutral; it is a tool, [a] part of the judicial power. It cannot be judicial activism to strike down a statute that actually is unconstitutional[;] [r]ather, a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional."
As to whether the Constitution of California compelled judges to act in the instant case, while I am rather sceptical of that, I will leave to commentators more familiar with the Constitution of California than I.
I have no idea whether the court was obliged to act here, but I think that saying that rational basis = implementing legislation the majority wants is kind of a cop-out. If that were the case, why have courts been contorting themselves into pretzels (or origami) to articulate some reason -- any reason -- things could possibly be constitutional?
Anyhow, I don't think we've had any compelling gay marriage decisions yet, for or against. Unless one slipped in since the last time I looked at them.
Prof. Schweber:
existing practices solely because they are existing practices?
I think that ignores some of what is particular about the concept of "marriage" -- it's not "existing practices" in the sense of a particular regulatory accomodation or anything like that. If we look back to thewhole paen to the ancient glory of marriage from the end of Griswold v. Connecticut, the court makes the point that "marriage" is more older and more fundamental than anything the state can do, ergo the state has no business poking its nose into a marriage. That same kind of reverence for marriage as a living tradition could also leave a court reluctant to do anything to interfere with it, as it has come down to us, itself.
Sort of as with things like the National Anthem, the Pledge of Allegiance, or the "ceremonial deism" of our public spaces, there may be a legitimate interest preserving the nation's traditions (even comparatively novel traditions, e.g. the "God" references in the Pledge) even though in other circumstances we might find similar state practices constitutionally suspect. One might think that marriage, being rather more fundamental to civil society than things like a national anthem, a pledge of allegiance, or even the Constitution itself, might get that "tradition" bonus in spades.
Especially when that's weighed against the impact to gays/lesbians (essentially: "I can't marry who I want to"), the stakes involved don't seem especially dire, unlike with segregation (material impoverishment, educational degradation) or slavery (beatings, killings, total loss of liberty), so that tradition may weigh more heavily in the balance than it would have done in those previous situations.
That's not to say I necessarily agree with the Court's reasoning there. But it's a legitimate argument, in a way I don't think that "carrying out the expressed wishes of a majority of Californians" is.
Professor Schweber asks "why pretend that we are engaging in constitutional analysis at all?"
Well, the reason is that there's not much analysis one can really offer here, and all that's in play all around is pretense. "Rational basis" analysis gets nowhere in this context because the game is fixed.
The argument in favor of the traditional definition of marriage always reduces to a variant of: "heterosexual unions are better than gay unions." Lots of different social contexts and outcomes are posited by those who hold that view -- child bearing and rearing, social/familial stability, etc. But the judgment inherent in the use of "better" here reflects a value preference; it's essentially a moral judgment, not an economic or sociological or psychological observation about the world around us that might admit of measurement. The comments on these threads that try to address those issues constantly switch back and forth between economic/sociological/psychological contentions, and overt value preferences and moral judgments, without ever coming to grips with the core problem inherent in the key term "better." If one cares to take the tradition itself seriously, at its core it contends: "gay sexual unions are bad."
The argument against the traditional definition just substitutes the opposite value judgments in place of the traditional ones. And those who hold this view posit lots of social contexts and outcomes to show that gay unions are just as "good" as heterosexual ones, on whatever economic/sociological/psychological scale they think applies.
Without an objective standard to measure what counts as "good" or "bad" here, any discussion at this level is obviously going nowhere. So what is the standard? Ann's comment about "origami" interpretations of law, and how simple it is to turn them around, just shows the obvious result in a situation where agreed-upon objective standards are lacking. The point is not that moral propositions all stand on the same footing, or that some moral arguments aren't better than others, but that those judgments can only be made where the parties have agreed upon first principles.
Beginning with Griswold, the Court started down the road where it treated sexual autonomy as a constitutional value. Where that came from, other than as the imposition of the value preferences of five or six superannuated lawyers, beats me. Griswold was a bold expansion in terms of theory, but announced in a factual context that was utterly non-controversial. Roe came next and changed everything. In Bowers, the Court did a bit of a U-turn, and then another one (after a change in membership) 15 years later in Lawrence.
It's a fool's errand to pretend that "rational analysis" in this context makes any sense, or had anything to do with the results of those cases, when what's in play are competing value preferences and moral judgments. Since the constitution never says anything about these issues, there is no standard that all must accept in analyzing them. Instead, there's just competing theories about how to make sense of the equal protection clause (a clause that lived happily with egregious sex-based discrimination in voting rights for its first 60 years). Long ago, dissenting in Lochner, Holmes noted that the Constitution did not incorporate Spencerian economics. The wisdom of that lesson is not confined to a particular school of economics; it covers all of the various theories of justice, equality, goodness, or anything else smart people are constantly inventing in order to bring order and meaning to their lives. The only exception is where the constitutional text itself provides a substantive standard (e.g., racial discrimination is bad). But lots of people, including Holmes' successors who may enjoy wielding power, keep forgetting that lesson.
Educated people today don't think the traditional judgment that "gay sex is bad" is a polite thing to say, mostly because the religious and moral traditions from which that value judgment originated have lost all force for them. In the end, that's the rationale for Lawrence. Your comment about the "circularity" of the California decision captures that view perfectly. The decision is circular only to the extent that it winks and nods at the "rational basis" framework that it purports to apply in a context where it cannot rationally be applied. Instead, the court just takes the traditional understanding as representing a long standing value preference that courts have no business supplanting with a competing value preference. As the court rightly said, that's a job for the democratic process.
As it happens, I share the value judgment that there is no inherent moral difference between gay sex and heterosexual sex. But that's just me. And I've never thought that my value preferences and moral judgments should be imposed on others in the guise of constitutional imperative.
So the game is fixed by the way the question is posed. You will never find a "rational basis" for the value laden moral judgments at the core of this dispute, because those judgments don't admit of objective, empirical analysis. You might as well ask for the "rational basis" for the view that Mozart's music is more beautiful than Beethoven's. Many reasons can be adduced for one view or the other, but there's no standard you will ever devise to tell you which view is "correct."
Edward:
It’s not only obnoxious for the government to compel intelligent adults, who are perfectly capable of making their own decisions in these matters, to choose one form of marriage over another.
If one is a libertarian, that's probably the tack one takes in general. But think about it. Here, we're not talking about compulsion -- no one telling anyone to marry a particular way or face the dire consequences (e.g. imprisonment, fine, etc.) It's a matter of incentives, of carrots, rather than sticks.
You have the same kind of thing everywhere in the law. E.g. we want people to make the choice for home-ownership, so we have adjusted the tax code to benefit home-owners over non-home owners. We want to put our thumb on the scales in favour of child-bearing, so we have built in the child tax credit. And so on and so forth. These aren't cases of compulsion.
So there is a rational basis for preserving existing practices solely because they are existing practices? Then why pretend that we are engaging in constitutional analysis at all?
That isn't even accurate. The courts says there is a rational-basis for preserving an existing practice of a high pedigree that a present majority of the people want to preserve. In other words, marriage was good then, marriage is still good now, and most people like it the way it is.
Your burden, professor, is to prove that marriage the way that most people want it cannot possibly be good. That's a crazy argument.
Re: Richard Dolan:
Griswold was a bold expansion in terms of theory, but announced in a factual context that was utterly non-controversial.
Was it? I wasn't alive then, so I don't know. But my understanding of the situation is that the court invokes a right of privacy surrounding the marital bed . . . and uses it to find the prosecution of a saleswoman who sold an illegal contraceptive to some married people unconstitutional. No? I mean, Griswold isn't part of the married couple here; she's just an activist posing as a merchant or something, and she's the one in trouble, not the married couple.
Marital bed, privacy, fine. All respectable traditional stuff. But a marital right of privacy that stretches to include a salesman's counter? I can see the argument, but I can't imagine it wouldn't be uncontroversial. Consider if they were using contraband drugs as a sex aid or something.
My ideas about a maximally open and free marital marketplace only apply to the choice between gay and traditional marriage.
Here's the thing. Maybe gay marriage is not currently subsidized by the state because there simply isn't sufficient demand for it. A few professors and a few activists does not a vibrant market make.
Polygamy is not de jure marriage, but nobody gets prosecuted in California for having two live-in lovers, giving each other powers of attorney, reaching property-sharing arrangements etc., etc. There's no question of legalization, merely one of state recognition and certain state-granted privileges. Just like in the case of homosexual relationships.
So, what's the reason recognition and privileges are given to certain de facto marriages?
After that is identified, then it's possible to see if the reason applies to same-sex de facto marriages. If it doesn't, there is the rational basis right there -- the purpose of marriage de jure is to promote X, and since same-sex marriage does not promote X, it isn't included in marriage de jure.
But it also means that if marriage laws in general do not support or promote X, there's no reason for the state to recognize any marriage. It is not sufficient to identify why "marriage is one of life’s essentials", but why and how state recognition of the marriage contributes to that end.
This is one of the many places where libertarianism fails. Not only is there not a demand for gay marriage. There is an enormouse demand against it.
The libertarian position on marriage is that the state shouldn't be involved in deciding what marriages are or aren't valid or in encouraging or discouraging various kinds of social contracts. People managed to successfully get married and raise stable families for millennia before the government got involved; they can do so again.
So while both libertarians and gay marriage activists agree that gay and hetero marriage should be treated equally by the state, they differ in that the former mean "neither should be given benefits" and the latter mean "both should be".
It is exactly this desire on the part of society for lack of flux, for lack of dynamism, and for things to be the way they are because that's the way people want them to be that is the demise of libertarian politics.
Not all libertarians want a dynamic society. Many are quite reactionary about the type of society they want. The real failing of libertarianism is that there's just no getting around the fact that the overwhelming majority of people want the government to give them lots of benefits, paid for by somebody else.
Polygamy is not de jure marriage, but nobody gets prosecuted in California for having two live-in lovers, giving each other powers of attorney, reaching property-sharing arrangements etc., etc.
It may be a fact that such prosecutions are rare or nonexistant in California, but so far as I know they are *possible* here. I know they are in Utah -- you can be prosecuted for polygamy even if none of your "marriages" were state-sanctioned ones.
So in that sense, at least, polygamists are even more oppressed than homosexuals are.
I'm not bothered by these judicial opinions. Each state has different laws and different Constitutions and I don't pretend to understand the judicial history in each state.
I'll add that this is the exact opposite of those on the opposing side - those who claim to be experts at Massachusetts law and teh Massachusetts Constitution.
I most definitely think that there is an ignoble compulsion involved when the government tells people that only heterosexual marriage will be legal. To me, marriage is one of life’s essentials, almost like food and water.
This seems a little odd to me, but okay. My question then is -- why is the state the source you're going to for "marriage"? The state is not a god. It's not the final word on what is, when it comes down to it, a social institution emerging out of a tradition far more ancient than any government. If marriage means as much to you as you say it does, then go ahead and get married. No one's going to penalise you for it, as Seven Machos never tires of pointing out.* The bureaucrats who serve the state won't be obliged to recognise your marriage, and won't force other people to recognise your marriage. But if marriage is that important to you, does it matter that much that a bunch of bureaucrats acknowledge it and punish other people if they decline to?
It's one thing to complain that you don't get the marital testimony privilege, or that you don't get visitation rights, or the tax benefit. These are concrete things you can point to (well, comparatively so). But they're also not things that anyone is going to point to and say "Coming under that particular tax code provision is one of life's essentials!" or "The right to avoid testifying against my husband, without fear of punishment, is one of life's essentials!." These concrete privileges may be nice, and they are things the state can give you. And because they're the kinds of things the state can hand out like party favours, they're also the kind of thing you can say "This isn't fair" about, when other people get them and you don't. They're also incidental to the social fact of a marriage, and . . . they don't seem to be what you're talking about.
But the state can't give you what you seem to be talking about.
[* I recall hearing that there were some employment cases where lesbians bureaucrats who had got married in their private time were fired shortly after, and claimed they had been fired for getting married to other women. I don't know what happened here, but I'm pretty sure that's not allowed. Nevertheless, it's not necessarily the case that you won't suffer consequences for getting married (although I think that is against the law), but it's not like miscegenative marriages before Loving v. Virginia, or polygamous marriages today, where the consequences involve getting thrown in jail. And of course, nothing prohibits social opprobrium after you get married -- the state can't control peoples' feelings, after all.]
टिप्पणी पोस्ट करा