As you’d expect, Andrew Sullivan and his crew are on top of the Proposition 8 trial. Among the many reasons for paying attention is that the trial promises to be terrific theatre. Think of it along the lines of Inherit the Wind, the play and film about the Scopes Trial with the hero playing a Clarence Darrow figure and his foil playing a tottering William Jennings Bryan figure. It testifies to David Boies and Theodore Olson’s extraordinary skill that they’ve managed to move the District Court, first, to stage a courtroom drama that reduces the multi-dimensional political battle over Proposition 8 to a simple, winnable, argument, and second, to cast them in the Darrow role.
You can acknowledge the power of the argument Boies and Olson intend to make without approving of their enterprise. Lots of same-sex marriage supporters still believe that it’s unwise because they're likely to lose in court. I wonder if the trial’s self-defeating even if they win.
Recall the circumstances under which Proposition 8 arose. Same-sex relationships had been recognized under California law for nine years before Proposition 8 was put before California voters. The 2003 California Domestic Partners Rights and Responsibilities Act established the legal presumption, subject only to some minor enumerated exceptions, that domestic partnerships confer the same substantive rights on same-sex couples that civil marriages confer on opposite-sex couples. Proposition 8 was carefully worded neither to deprive same-sex domestic partners of any tangible benefit enjoyed, nor relieve them any tangible burden born, by opposite-sex spouses. It asked only whether “the California Constitution [should] be changed to eliminate the right of same-sex couples to marry, providing that only marriage between a man and a woman is valid or recognized in California?”
That meant that the only substantive issue raised by Proposition 8 was whether same-sex domestic partners had a right that state functionaries and public documents call their legally recognized relationship a “marriage.” It matters intensely to supporters and opponents of same-sex marriage because they both acknowledge that calling a coupling a “marriage” elevates its moral stature. So Proposition 8 was really an argument about whether Californians should hold, or at least speak officially as if they hold, heterosexual and homosexual couplings in equal moral esteem.
I can't speak for gays and lesbians, but I imagine it’s been a long time since many of them needed validation from a court to enable them to respect themselves and appreciate the value of their same-sex partnerships. They already know that they’re entitled to respect. What they want above all, I presume, is actually being respected. Same-sex marriage licenses matter in that connection principally because they’re tokens of straight people’s newfound recognition of, and respect for, the unchosen sexual identity of gay and lesbian persons.
Yet if the vote on Proposition 8 showed anything, it showed that most California voters still don’t actually hold heterosexual marriage and same-sex domestic partnerships in equal moral regard, and therefore don’t really extend to gays and lesbians that measure of recognition and respect. That's just a regrettable fact. In the face of it, why should gays and lesbians craving communal recognition of, and respect for their sexual identities, really care more about what any court says than the votes of the 6,838,107 Californians who favored Proposition 8 (or, on the brighter side, the 6,246,463 votes against it)?
Boies and Olson’s answer seems to be that, in our political culture, courts speak with moral authority. So getting a court to say something is a sure way of getting the bulk of citizens to believe it in due course. But that's far from being obviously true. In our system, courts are authorized “to settle” issues about the meaning and constitutionality of a statute for the time being by authoritatively interpreting the law. That implies that citizens and other branches of government are obligated to defer to a court’s legal decisions, not that they’re obligated to believe that those decisions are legally or morally correct. Legal authority need not, and as a matter of fact, often does not, confer moral authority on a court decision.
Indeed, our constitutional system presents us with a standing invitation openly to express our opposition to, and to try to overturn, court decisions that we think are wrong. The liberal community accepted that invitation when it contested Supreme Court appointments and mounted court cases inviting the Court to change its view of the constitutionality of laws criminalizing consensual sodomy in the years between Bowers and Lawrence.
Judicial authority doesn’t, and shouldn't, extend to keeping citizens from thinking impure thoughts about the moral status of gay and lesbian relationships or anything else. Moreover, we know from our experience of how the Supreme Court’s abortion decisions energized the right-to-life movement, that it might have precisely the opposite effect.
Here’s my question: as long as there’s a difference between winning an argument and winning respect, are gays and lesbians well-served by any legal maneuver that preempts the democratic process?