Wednesday, June 29, 2011

Democracy and Same-Sex Marriage

Scott Lemieux doesn’t seem to think it matters much whether same-sex marriage rights are secured through the legislative process, as they were in New York last week, or through litigation:
“Some pundits will advance the argument—as they did after Proposition 8 stripped gay couples of court-mandated marriage rights in California—that New York shows the wisdom of sticking to legislative battles. But if you look at how things have played out in other states, that’s not the case. New York’s eastern neighbor, Massachusetts, has had same-sex marriage for nearly a decade because of a court decision, and marriage-equality rights are no less entrenched there than they are in Vermont, where they were granted by the Legislature. On the other hand, the outcome in Maine makes it clear that legislative action does nothing to insulate policy changes from backlash; in 2009, Maine voters overturned same-sex marriage rights that were granted by the Legislature earlier that year.”
Lemieux's indifference to the institutional pedigree of same-sex marriage mystifies me. It’s easier to explain why if we separate the issue of what’s in the legal bundle of same-sex conjugal rights from the issue of what we, as a society, decide to call that bundle of rights. It matters what’s in the bundle because same-sex spouses need to be able to vindicate their substantive rights (e.g., to visit each other in the hospital, to inherit a predeceased spouse’s estate, to declare a spouse as a dependent on one’s tax returns) in court. I can understand a same-sex marriage supporter’s not caring much about whether a court or a legislature determines which rights are in the conjugal bundle, inasmuch as their value to the right-holder isn’t a function of their institutional provenance.

But same-sex spouses’ enjoyment of the legal right to have their relationship officially called a “marriage” is another matter entirely. Why does the legal recognition of that right matter so much not only to same-sex couples but to social conservatives? I presume that gays and lesbians who are open enough about their sexuality to want to get married presumably don’t need official validation to enable them to respect themselves and appreciate the value of their relationships; they already know that they’re worthy of the community’s respect.

That doesn’t mean, however, that they’re actually being respected by the community, or that gays and lesbians who are less secure in their sexual identity aren’t suffering grievously from the community’s palpable disrespect. Owing to the moral prestige that traditionally attaches to the institution of marriage, both liberals and social conservatives regard same-sex “marriage” licenses as a token of the community’s recognition of, and respect for, gay and lesbian sexual identities. That’s why same-sex couples want them, and social conservatives don't want same-sex couples to have them.

How, then, can it be a matter of indifference to either side whether the collective decision to call same-sex relationships “marriages” is made in the courts or the political branches of government? A few judges deciding the issue privately in chambers according to technical rules of constitutional interpretation (and ones that are hotly disputed within the legal profession at that) before springing it on an unsuspecting public doesn’t imply that the community has suddenly started respecting gays and lesbians. If you don’t already think same-sex and opposite-sex relationships are morally equivalent, a judicial decision officially to call same-sex relationships "marriages" can only strike you as an Orwellian maneuver that operates less to convey communal respect for same-sex relationships than to deprive “marriage” of its traditional moral prestige.  One thing it surely doesn't imply is that the community at large is experiencing any newfound respect for gays and lesbians.

It's crucially different to all concerned, however, when the people, through their elected representative, decide to start calling same-sex relationships marriages. That’s the best institutional mechanism at our disposal to convey actual communal respect for New York gays and lesbians. Had the New York courts preempted the democratic process by finding a right to same-sex marriage in the state’s constitution, they would never have known what it feels like to receive it.


Anonymous said...

I guess Lemieux's point is about the durability of the decision. Legislatures can vote to allow same-sex marriages, and the opposite-minded voters can decide to vote out the legislature or vote to overturn the decision. Lemieux must be against democracy.

Anonymous said...

I'll bet if you poll the average citizen and ask whether he or she thinks a certain "right" is secured through the legislative process or through litigation, he or she wouldn't know the answer, and more than likely, wouldn't know the difference.

It's left to intellectuals to debate which is better, but I'll bet most people don't have the slightest idea of the difference.

Anonymous said...

Well, Scott Lemieux's factual predicate is misleading. In Baker v. Vermont, that state's supreme court decided on equal protection grounds that the marriage statute was unconstitutional and handed the job of "correcting" the inequality to the Vermont Legislature. They picked civil unions, and nearly a decade later, once it became pretty obvious none of the predicted undermining of society actually resulted, the Legislature went further an enacted gay marriage. The unions were not equivalent to the marriages, as evinced by the fact that people who'd entered the unions did not automatically become married under the new up-graded gay marriage statute. They had to get married again.

I used to see a relevant distinction between the bundle and its name. But, suppose the Court in Loving v. Virginia suggested that as an alternative to Virginia's antimiscegenation statute, it would be okay for Virginia's Legislature to enact an amendment to its marriage statute called "Racially Non-Discriminatory Unions?" would it seem sufficient that Blacks and Whites who united under the designation "Racially Non-Discriminatory Union" got the very same bundle of rights as did whites under the retained whites-only section of the marriage statute? Sometimes, that which we call a rose, by any other name, does not smell as sweet. -Ben Currie