Friday, August 6, 2010

More on the Same-Sex Marriage Decision

Litigating the constitutionality of California’s Proposition 8 isn’t an ideal way of addressing the question of whether there’s a constitutional right to same-sex marriage. Most of us confront that issue by asking ourselves whether same-sex couples are entitled to same bundle of legal rights and duties that opposite-sex couples have by virtue of their civil marriages. As I noted yesterday, Proposition 8, the subject of Judge Walker’s decision, was largely about what the State of California should call that bundle of rights/duties, not about what rights/duties should be in the bundle—that issue had already been settled by California’s domestic partnership law. The issue before Judge Walker, then, was whether officially calling that bundle of rights/duties a “domestic partnership” when referring to same-sex couples, and a “civil marriage” when  referring to opposite-sex couples amounts to discrimination by the State of California.

Here’s a thought experiment that helps show both the strength and the limitations of Judge Walker’s opinion:

The 1965 Voting Rights Act is probably the most important piece of civil rights legislation ever enacted in this country inasmuch as it secured an effective electoral franchise for African-Americans. Suppose when that legislation was enacted, Congress had officially entitled it “The X Enfranchisement Act” where X is the most revolting racial epithet you can think of.  That wouldn’t make the legislation’s content any less of a remedy for state-sponsored discrimination. But I don’t think there’s any question that it would make the bill unconstitutional despite its content, because its title would amount to official expression of racial contempt. A court would surely be justified in striking down at least the legislation’s title on the ground that it deprived African-Americans of equal protection under the law (a standard expressly applied to the states in the Fourteenth Amendment which courts now routinely apply to the federal government via the due process clause of the Fifth Amendment).

Judge Walker has done something analogous to that by holding that Proposition 8 is unconstitutional. It’s not that he has any beef with the bundle of rights/duties conferred on same-sex couples by California’s domestic partnership law. He’s decided that calling it a “domestic partnership” rather than a “civil marriage” with respect to same-sex couples amounts to an unconstitutional expression of official contempt.

He has a point. During its long history as an integral part of our kinship structures and our system of property rights, “marriage” has acquired moral prestige. Proposition 8’s supporters and opponents both acknowledged that calling a coupling a “marriage” elevates its moral stature. Reserving that term for opposite-sex couples withholds comparable social status from same-sex unions. If that weren’t true, same-sex marriage opponents wouldn’t have expended so much energy in behalf of Proposition 8 even though it left legally recognized same-sex domestic partnerships undisturbed.

Yet the analogy between the “X Enfranchisement Act” and Proposition 8 illuminates as much by where it breaks down as where it holds. “X” necessarily is, and could only have been intended by Congress to be, an expression of racial contempt. It’s hard to say the same thing about “domestic partnership.” How could that term be an expression of contempt for gays and lesbians when it’s the artifact of the California Assembly’s conscientious efforts to fashion a remedy for state-sponsored discrimination against them? “Domestic partnership” was a term coined by the Assembly less as a comment on the moral status of same-sex relations than as a way of ducking the issue of whether they're morally equivalent to opposite-sex marriages. Anyway you slice it, “domestic partnership” functions a lot differently in public discourse than “X.”

I don’t think Judge Walker has done the gay and lesbian community any favors by drafting an opinion that ignores that difference.

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