Eyes on California

On Tuesday, the Supreme Court of California will finally hear oral arguments in a lawsuit trying to overthrow that state's ban on gay marriage; they will have to issue a ruling within three months after that. Naturally, this issue has gotten a lot of people's attention, and a lot has already been said. Let's take a look:

One gay rights group appearing before the California Supreme Court in historic marriage arguments on Tuesday has told the court that "the freedom to marry the person of one's choice is an essential aspect of human dignity."

A traditional-values group on the other side, meanwhile, has argued that the bid for same-sex marriage is "a ticking bomb aimed at demolishing the very institution to which plaintiffs claim to seek admission."

So on the one hand we have people arguing that they are being denied their freedom, their rights, and their dignity as human beings. And on the other we have some bizarre idea that by getting married people will somehow destroy the institution of marriage, facts or logic be damned.

And the sad part is that it's not clear which side the judges will take.

The groups arguing in favor of same-sex marriage are the city of San Francisco and three sets of a total of 19 same-sex couples. One set of 11 Northern California couples is represented by the San Francisco-based National Center for Lesbian Rights.

Those groups contend that a right to same-sex marriage is provided by the state constitution's guarantees of equal treatment, privacy and a fundamental right to marry.

Lawyers from the city of San Francisco wrote that excluding same-sex couples from marriage "not only stigmatizes lesbian and gay men but fosters discrimination against them and their families."

Well, you'd think that a guarantee of equal treatment combined with a fundamental right to marry would be pretty damn clear. Alas, somehow, other people don't see it that way. Perhaps gays don't have fundamental rights, nor deserve equal treatment. Well, let's hear from these people:

On the other side, the state marriage laws will be defended by lawyers representing California Attorney General Jerry Brown, Gov. Arnold Schwarzenegger, the Campaign for California Families and the Proposition 22 Legal Defense and Education Fund.

Brown and Schwarzenegger have argued that heterosexual marriage is deeply rooted in tradition and that same-sex couples are given nearly the same rights through domestic partnerships.

Brown cautioned in a brief filed last year that courts should "avoid the social risk inherent in overly rapid change that rends the fabric of society in ways that cannot be rapidly assimilated and that may prompt backlash reactions."

...that's it?

So we have a blatant appeal to tradition, an admission that they're treating gays unequally by only giving them "nearly the same rights", and an appeal to consequences. Well, yes, it's almost certainly true that ruling in favor of gay couples will spark a backlash from homophobes. But that has nothing to do with whether or not it is constitutional to deny gay people equal rights. The fact that some people will be outraged by the decision should not be reason to hand down that decision--otherwise the courts are surrendering to mob rule, the very thing that our legal and political system is designed to prevent. And the question of whether or not people's prejudices should be reason to deny the object of those prejudices equal rights before the law has already been answered by the Supreme Court of the United States, in Palmore v. Sidoti. In that case, the court ruled that a divorced white mother could not be denied custody of her children because she had remarried a black man. The lower court's decision held that refusing her custody was necessary to protect the child from social stigma. The court ruled unanimously otherwise, and Chief Justice Warren Burger wrote:

The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. "Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held."

The Justice Department also recognized this fact, as they filed a brief on behalf of the mother which said:

Bowing to popular prejudice, whether to protect the potential victims of such prejudice or to avoid racial unrest generally, cannot constitute a sufficient justification for departing from the constitutional command of equal protection.

Alas, the fact that the court shouldn't take into account popular prejudices that would spark (perhaps violent) backlashes and social upheaval doesn't mean that they won't. There's precedence for that coming from the SCOTUS, too. During the litigious 1950s, the Supreme Court decided not to hear the case Jackson v. Alabama, wherein Linnie Jackson, a white woman, was challenging the constitutionality of the state's anti-miscegenation law, which she had been arrested for breaking. The case reached the court shortly after the monumental decision Brown v. Board of Education, and they were worried that overthrowing anti-miscegenation laws might spark even more anger from the country. From Peter Wallenstein's Tell the Court I Love My Wife:

Harvey M. Grossman, law clerk to Justice William O. Douglas, expressed his conflicted response when advising his boss on the Jackson case. "It seems clear that the statute involved is unconstitutional," he wrote on November 3, 1954. And yet, he continued, "review at the present time would probably increase the tensions growing out of the school segregation cases and perhaps impede solution to that problem, and therefore the Court may wish to defer action until a future time. Nevertheless, I believe that[,] since the deprivation of rights involved here has such serious consequences to the petitioner and others similarly situated[,] review is probably warranted even though action might be postponed until the school segregation problem is solved."

Later, the court decided not to hear the case (incidentally, Douglas was one of the three justices who thought they should hear it). The court also ducked another miscegenation case, Naim v. Naim, in 1955. Again, from Tell the Court I Love My Wife:

Law clerks for various justices saw the inauspicious timing. Justice John Marshall Harlan's clerk worried, "I have serious doubts whether this question should be decided now, while the problem of enforcement of the [school] segregation cases is still so active." Justice Harold M. Burton's law clerk struck much the same tone: "In view of the difficulties engendered by the segregation cases it would be wise judicial policy to duck this question for a time."

The observations by the Court's justices and their clerks make it clear that a number of them, at least, were inclined to view miscegenation laws as unconstitutional. Justice Felix Frankfurter, however, weighed in on the side of inaction. Bringing a tortured prose to the deliberations, he spoke to his brethren of pressing "moral considerations," which he proceeded to identify as, "of course, those raised by the bearing of adjudicating this question to the Court's responsibility in not thwarting or seriously handicapping the enforcement of its decision in the segregation cases."

But enough of that. Let's see how else the opponents of equality try to justify their discrimination:

The two traditional-values groups appearing before the court go a step further and contend that marriage between a man and a woman is better for children.

"Fostering and preserving responsible procreation remains a key state interest in defining marriage as the union of one man and one woman," attorneys wrote in a brief filed by the Campaign for California Families.

Well, for one, if marriage were about procreation that would logically imply that we ought to outlaw marriage between straight couples that can't have children. But you're not going to do that, are you? Kinda puts the lie to the idea that you believe marriage is about procreation.

For two, gay couples have children. Preventing them from getting married will not change this fact, and it also will do nothing to help those children. If you want to help foster responsible procreation by making sure that parents are married, the best way to do that is by letting gay couples get married and raise their kids.

And for three, this idea that that "marriage between a man and a woman is better for children" has been refuted numerous times. Last year, the Victorian Law Reform Commission released a report which included a study of the around 27 scientific studies of children raised by same-sex parents. It found that none of these studies concluded that children raised by gay couples were different than if they had been raised by a straight couple.

So, Campaign for California Families, where's your evidence to the contrary?