Submitted to a Candid World

This morning, the California Supreme Court ruled, in a 4-3 decision, that the equal protection clause of California’s Constitution mandates equal rights for the gay men and women of the state, entitling them to marry. The decision expands upon gay couples’ earlier entitlements to the “separate but equal” institution of civil unions. This victory for the gay rights movement, though, has its own problems, and could potentially affect the November election, turning California’s bold move into a Pyrrhic victory for equal rights advocates.

In re Marriage Cases (Cal. 2008) is available here.

I believe that the Constitution unequivocally protects equal rights for gay men and women - including the right to be free from invidious employment discrimination, the right to adopt, and the right to marry. The federal equal protection clause guarantees all groups the right to be free of discrimination lacking a “rational basis” in fact, and guarantees certain “protected classes” - defined as “discrete and insular minorities” - a heightened level of constitutional scrutiny, designed to ferret out racism, sexism, or religious polemic masking itself as legislation. To date, the U.S. Supreme Court has refused to recognize gay men and women as a group who, owing to a history of discrimination, deserve heightened constitutional protection, instead holding that the state may discriminate against homosexuals upon a showing only of “rational basis” to do so.[1] Beyond this, the Court dodges the equal protection argument for gay rights wherever possible.[2] Current constitutional law, then, assumes that limiting marriage rights to only men and women is at least “rational.”

Why? The argument is that gay marriage will destroy the “institution of marriage,” which seems to be more polemic than fact. Even Justice Kennedy buys this argument, referring throughout Lawrence to “an institution the law protects,” and implying that okaying gay marriage would vitiate that protection. But to suggest that what other people do with their lives constitutes a harm to the “social fabric” seems to elevate a vague personal discomfort to a vital national disaster. Legislators are not allowed to consider their own squeamish stomachs, nor can they institutionalize a favored viewpoint without cause. [3] As Justice Stevens wrote in dissent, on a tax case:

A legitimate state interest must encompass the interests of members of the disadvantaged class and the community at large as well as the direct interests of the members of the favored class. It must have a purpose or goal independent of the direct effect of the legislation and one “‘that we may reasonably presume to have motivated an impartial legislature.’” That a classification must find justification outside itself saves judicial review of such classifications from becoming an exercise in tautological reasoning. [internal citations omitted] [3]

In other words, the majority must deal faithfully with the minority. This fundamental tenet of democracy cannot be overstated. When the majority repeatedly enforces its unjust will on the minority, it is the job of courts to step in and put a stop to it. Ruling based on vague discomfort does not meet that standard, unless one can causally point to the havoc allegedly wrought upon the institution of heterosexual marriage. Nor can that causation be shown. [4] [5]

That individuals may have a valid personal or moral objection to same-sex marriage, I do not doubt. That this objection is insufficient justification for the state to deny others, without additional cause, access to the institution of marriage, is a simple matter of logic and law. Legal protection for gay marriage is socially, morally, and legally just.

But is it the right time to push for equal rights? Probably, no. Much like equal rights for African-Americans, equal rights for gay men and women will probably come judicially, rather than politically. After all, the doctrinal framework is already laid: we just need better Supreme Court Justices to pull the trigger. By putting gay rights in issue at this crucial time, this decision risks compromising the only way that good Justices will ascend to the Court: through the election of Hillary Clinton or Barack Obama as President.

Republicans have long used the “gay card” to scare voters to the polls. Recall Bush’s half-hearted suggestions for constitutional bans on gay marriage, in 2004 and 2006… election years. And note that, of the three presidential candidates, only McCain addresses the issue of gay marriage, and there distinctly in the negative. Putting gay rights in issue gives McCain a soapbox to stand on, an attempt to rile up the culture wars at an inopportune time, and a chance to side with social conservatives and prove his bona fides. Not good.

It also potentially forces Obama and Clinton to take a position on the issue. As I’ve pointed out, neither candidate addresses gay rights on their websites - nor should they. It could be an election-loser for them, and we all know, by virtue of their political ideology, that their Supreme Court choices will be favorable to gay rights. Best not to talk about it.

Progressive American constitutional change often has to be smuggled in through the backdoor. Brown v. Board faced massive resistance in its day: desegregation by judicial fiat was as unpopular then as gay marriage by judicial fiat is today. But, like desegregation, gay marriage has to happen, in the not-too-distant future. Democratic politicians should feel free to count on the Supreme Court to act as our national conscience - with their help - and otherwise avoid this potentially divisive issue.

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[1] Romer v. Evans, 517 U.S. 620 (1996) (nevertheless overturning Colorado’s homophobic Constitutional amendment; “animus laid bare” is not “rational” enough for rational basis).

[2] Lawrence v. Texas, 539 U.S. 558 (2003).

[3] Nordlinger v. Hahn, 505 U.S. 1, 34 (1992) (Stevens, J., dissenting).

[4] Goodridge v. Dep’t of Public Health, 440 Mass. 309, 337 (2003) (”Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.”)

[5] In re Marriage Cases, 66-78 (Cal. 2008) (rejecting multiple arguments - some turning upon the importance of procreation - that suggested “damage” to the institution of marriage).