February 2011 is being cast by partisans on both sides of the same-sex marriage debate as a potential tipping point in the struggle to define the future of marriage in America. During the course of a week, President Obama instructed the Department of Justice to cease defending the federal Defense of Marriage Act (“DOMA”)1 in court, the Maryland Senate approved a bill that, if passed and signed by the Governor, will make Maryland the sixth state to embrace same-sex marriage, and the Governor of Hawaii signed into law a bill creating civil unions (though not marriage) for same-sex couples.
There is no question that these actions are all important developments, particularly the President’s decision to refuse to defend an Act of Congress designed to protect, at least for federal and inter-state comity purposes, the traditional definition of marriage as between one man and one woman. Yet despite the alarm of defenders of traditional marriage, and the bravura of same-sex marriage proponents, around these recent events, they are not likely to decide the ultimate fate of marriage in the Nation. That distinction belongs to the key case, decided by a federal district court in August 2010 and now working its way through the appellate courts. That case almost surely will end up in the U.S. Supreme Court, which will decide in one sweeping decision whether the marriage laws in all fifty states must accommodate same-sex couples. That case, if affirmed on appeal, would alter the institution of marriage in the United States at its core. That case is Perry v. Schwarzenegger.2
Chief Judge Vaughn Walker of the United States District Court for the Northern District of California must be complimented for the political adroitness of his lengthy and cleverly structured opinion in Perry, which last August invalidated California’s Proposition 8. As commonly reported by a largely sympathetic press, he marshalled a wealth of social-science testimony purporting to undercut the stated rationales for Proposition 8’s limitation of marriage to a man and a woman. He, perhaps superfluously, but probably correctly, noted the economic benefit for California and its cities from recognizing same-sex marriage—of no little consequence given California’s fiscal condition. With keen sensitivity to coalition building, he tried very hard to cast his unprecedented creation of a federal constitutional right to same-sex marriage as simply part and parcel of the broader line of social progress that has included gender equality and, most pointedly, racial equality, perhaps hoping to make inroads with the substantial majority of African-Americans who supported Proposition 8.
Yet Judge Walker feels no need to wait until those constituencies are won over, no need for the kind of democratic exercise transpiring in Maryland and elsewhere, indeed no need at all to ground his clarion assertion—that “the time has passed” for our tradition-bound notion of marriage as between a man and a woman—in the reality of what the people have willed or said. Rather, by judicial fiat he countermands the very exercise of popular will that shows how wrongheaded his assertion is. Any thoughtful review3 of Perry as a constitutional decision must reject its reasoning and conclusion. A brief analysis shows not only the jurisprudential flaws in Walker’s opinion, but also reveals a deeper, more far-reaching agenda: to remake to his tastes not merely the legal, but the very social and cultural framework of marriage and child-rearing in America, in a way that justifies most if not all of the fears of the proponents of Proposition 8.
I. Laying the Foundation
Walker realizes he has to engage in some clever sleight-of-hand to overcome the fact that same-sex marriage has not only never been recognized as a fundamental right under the U.S. Constitution, but indeed had never even existed in the United States until 2004. When it came, moreover, it was not by legislative or popular action, but by the judicial fiat, first of the Massachusetts Supreme Judicial Court in a narrow 4-3 ruling in Goodridge v. Department of Public Health4, and then by a handful of other state high courts5, “finding” such a right in their state constitutions. While the Goodridge majority may have convinced a few similarly liberal activist state judges to follow their lead, it was even more successful in convincing over a dozen states in the immediately ensuing election to specifically enshrine one-man-one-woman marriage into their state constitutions. Indeed, Proposition 8 itself is exactly such an initiative, undertaken not as some unprovoked hostility to homosexuals, but rather as a direct response to the California Supreme Court’s 2008 attempt6 to judicially impose same-sex marriage. As of the end of 2009, same-sex marriage had been rejected by the people every single one of the 31 times it has been put to a popular referendum. Thirty states enshrine one-man-one-woman marriage in their state constitutions, another 15 in statutory law. Only five states allow same-sex marriage and three of those (Massachusetts, Connecticut, and Iowa) only because of activist judicial compulsion. 7 The two states that legislatively enacted same-sex marriage without judicial compulsion, Vermont and New Hampshire, would seem to make northern New England the heartland of sentiment for gay marriage in the nation—yet, when the legislature of neighboring Maine passed a bill allowing same-sex marriage in 2009, the measure was swiftly annulled by popular referendum. Furthermore, in the 2010 elections, the New Hampshire legislative majority that had recently enacted same-sex marriage was dramatically repudiated by the voters, with pro-traditional-marriage Republicans not only capturing both legislative houses, but also securing veto-proof two-thirds majorities in both houses, setting the stage for a likely repeal effort. The 2010 elections also saw all three Iowa Supreme Court judges who had voted in favor of imposing same-sex marriage through the state constitution, and who stood for re-election, defeated and replaced by the voters. Of course, at the federal level, as noted, Congress has enshrined one-man-one-woman marriage for federal statutory purposes in the Defense of Marriage Act, and the unlikeliness of repeal anytime soon has caused same-sex-marriage advocates, abetted now by the Obama Administration, to concede the democratic contest and turn to a judicial strategy for annulling this Act.8 Suffice it to say that all of this is hardly a good start for showing that same-sex marriage is “rooted in our nation’s history, legal traditions, and practices,” as the Supreme Court says must be true of rights that are to be deemed “fundamental.”
Walker is up to the task, though. It is marriage itself, he stresses, not same-sex marriage, that is the fundamental right—and indeed it is. All we have to do is recognize, as Walker will help us do, that contrary to what every state legislature, or the Framers of the Fourteenth Amendment, or anyone else for that matter may have thought for the last couple of centuries, the identity of the two marriage partners as a man and a woman has never been a core requirement of marriage or part of its core meaning. Indeed, Walker says the evidence “did not show any historical purpose for excluding same-sex couples from marriage.” Rather, that exclusion was at best an accident of other, usually shameful concepts of gender roles in society. The not-so-subtle message: You can’t be against gay marriage unless you also want to keep women in the home and make them totally subservient to their husbands. Moreover, these shameful gender concepts long went alongside the shameful racial stereotypes embedded in the anti-miscegenation statutes famously invalidated in Loving v. Virginia9. Opening marriage to same-sex partners, in Walker’s view, will no more change the fundamental nature of marriage than did Loving. (Implication: If you’re against gay marriage, you might also want to send us back to the dark ages of race-based prohibitions on marriage. Again, a not-too-subtle call for African-Americans, who voted over 75 percent in favor of Proposition 8, to get back in line with the progressive agenda.)
Walker is not only careful to consider political audiences, but judicial audiences as well. Though applying the “strict scrutiny” normally reserved for laws that burden “fundamental rights” or discrimination against “suspect classes,” Walker spends much of the opinion emphasizing that Proposition 8 cannot even meet the more deferential “rational basis” test. So, lest any appellate judges or justices have qualms about declaring same-sex marriage a new fundamental right, Walker makes clear they need not do so to invalidate Proposition 8. It fails even the rational-basis test, because Walker finds no possible valid state interest could be even rationally related to the limitation of marriage to a man and a woman. How wrong, how indeed irrational, have all fifty states been for the past couple of centuries, and how irrational do forty-five of them continue to be to this day! Not to mention how irrational was Congress in passing DOMA a decade ago. Needless to say, how irrational were a majority of California’s voters in passing Proposition 8, just a few years ago.
Finally, there is that very important audience of one: Justice Kennedy. Clearly targeting Justice Kennedy, Walker repeatedly cites Lawrence v. Texas10, the 2003 Supreme Court opinion in which Kennedy struck down a Texas anti-sodomy statute, finding that moral disapproval of homosexuality alone could not provide a legitimate state interest, even under a rational-basis review, to justify such a statute. Walker then deftly positions Proposition 8 as a measure just like the Texas anti-sodomy statute: one that serves no articulable state interest, other than disapproval of homosexuality. Showing no shortage of chutzpah, Walker even cites as support Justice Scalia’s dissent in Lawrence, which noted that if “moral disapproval” can no longer sustain a “rational basis” for state legislation, then it is hard to see how denying marriage to same-sex couples could be sustained: “surely not,” notes Scalia, based on “the encouragement of procreation, since the sterile and the elderly are allowed to marry.”11 Picking up Scalia’s point, Walker marshals findings of fact that states have not historically required evidence of ability and willingness to procreate in order to receive a marriage license. Of course, Scalia’s point was that the holding of Lawrence itself was wrong, and that Kennedy’s repeated dictum that its logic would not go so far as to recognize same-sex marriage was naïve or disingenuous. Walker seems to be almost tweaking Justice Kennedy by saying, in effect, that Scalia was right, in that the logic of Lawrence leads ineluctably to the constitutional right of same-sex marriage; now, Justice Kennedy, just do what Scalia said you would do. It is a nice question whether such tweaking will turn out to be an effective strategy for getting Kennedy’s vote when the appeal is all but certainly heard by the Supreme Court. People, especially Supreme Court justices, do not usually like to be proven wrong, let alone proven naïve or disingenuous.
Perry’s fate in the Supreme Court aside, there is no denying that Judge Walker’s opinion probably did as much as could reasonably be hoped for in trying to create a new and unprecedented constitutional right, not only against the weight of tradition, but even more to the point, against the weight of recent and repeated popular rejections of same-sex marriage. Its many mischaracterizations and selective uses of information are for the most part subtle, interwoven with a largely irrelevant and hopelessly skewed but nonetheless intimidatingly voluminous trial record. Its key legal conclusions are framed in references that, if flawed, at least superficially resonate with other values rightly held dear, such as gender and racial equality. But for all of this cleverness, the opinion remains a flawed and dangerous departure from sound constitutional jurisprudence. Walker also does little to hide his contempt for the majoritarian values, particularly religiously grounded values, which he faults for being the main barrier to full acceptance and affirmation of homosexuality. A brief analysis will reveal both the jurisprudential and logical flaws of the opinion and the dangers its approach holds for the future. Let us start by exposing a flawed analogy that is central to both the legal and the broader political arguments for same-sex marriage.
II. The Misappropriation of Loving
Though Loving is cited only a few times, it is actually central to Walker’s project of assuring us that same-sex marriage is nothing new; for if the “long-standing” limitation of marriage to people of the same race can be swept aside without redefining marriage, then there is at least hope that people can see same-sex marriage as a extension of that same principle. Not incidentally, the comparison of Proposition 8 to anti-miscegenation laws has been a prominent part not only of the legal challenge but also of the broader public argument of gay-marriage advocates. This argument, culminating in Walker’s conflation of the limitation of marriage to a man and a woman with invidious pre-Loving racial discrimination, however, is a complete misreading both of Loving and of the historic role of race in marriage.
The long-held Judeo-Christian view of marriage, which admittedly has had as a central element the notion of one man and one woman, has never considered an interracial marriage invalid, canonically or in civil law. The early Christian Church freely blessed marriages between free Roman citizens and slaves, though banned by Roman law at the time. At least from the time of the ascendancy of Christianity until the 19th century, there is little evidence of a racial requirement for the civil or canonical validity of a marriage—these requirements seem to have appeared on the scene rather late. Needless to say, racial discrimination and animus would have discouraged many such marriages; however, examples abound of mixed marriages, especially after the Age of Exploration. Marriages between European settlers and Native Americans were blessed, as far as records show, by the Catholic Church and most Protestant denominations. Indeed, even the anti-miscegenation statute at issue in Loving had exemptions for marriages between whites and the “descendants of Pocahontas,” an admission by the drafters of this invidious statute that their cruel and, in historic terms, novel restriction would have criminalized the Old Dominion’s own founding fathers. Contrary to Walker, it can be seen that anti-miscegenation laws had little to do with the “long-standing” understanding of marriage, and came to the fore largely in the 19th century as a complement to notions of white supremacy and the expansion of the slavery system in the United States. Later they were adopted in the 20th century as part of the Nuremberg Laws by the Nazi regime in Germany, and later still by the apartheid regime in South Africa. Yet as all these examples show, they were late-stage manifestations of racial-supremacy policies, wholly divorced from, and indeed inimical to, the understanding of marriage in the Western natural-law tradition. The reason for the lack of any racial component in the natural-law definition of marriage is as obvious as the reason for its limitation to a man and a woman: Race is irrelevant to the natural fact that a man and a woman are sexually complementary and, in the normal course, any normally functioning man and woman of the species homo sapiens are capable of reproducing with each other without regard to race.
It is of course true, as Judge Walker’s opinion notes, that Supreme Court case law on marriage, especially after Griswold v. Connecticut12 wherein the Court invalidated a ban on artificial contraception as applied to married couples, acknowledges many aspects of the marriage relationship deserving protection as a fundamental right beyond the mere right to procreate. Marriage is also about a commitment to mutual support and intimacy. One must accept that these commitments may and do exist in relationships other than traditional marriage: not only among same-sex couples, but even among other groups of related persons mutually committed to each other for support and friendship, whether the relationship be sexual in nature or not. All of these may well deserve some level of protection by law. It can hardly be irrational, however, for a popular majority to say some special and especially solicitous framework is appropriate for those relationships that by their natural form, a man and a woman, are inclined to procreation and the upbringing of biologically related offspring. And certainly it is irrational to compare such a distinction to the wholly unwarranted racial distinctions invalidated in Loving. In short, it is simply facetious to argue that in overturning bans on interracial marriage, Loving was touching anything nearly so central to the historic definition of what a marriage is as is the one-man-one woman requirement. A brief review shows why, constitutionally as well as logically, Loving hardly supports the case against Proposition 8.
Loving was through and through a case about the specific invidiousness of race-based classifications in light of the obvious historical purpose of the post-Civil War Amendments to eradicate white supremacy and guarantee equality for blacks. On one level, Loving is easily distinguishable from the gay-marriage issue on the ground that it was based specifically on the core purpose of the Equal Protection clause to prohibit any race-based discrimination. Classifications based on race, as the anti-miscegenation statutes were, were historically subjected to the strictest levels of scrutiny. One could simply find Loving distinguishable on that ground alone and stop there. There is simply no basis for extending such a strict standard of review to areas outside racial classification, or status-based analogues like national origin, illegitimacy, etc.
More needs to be said, though, for Loving is a particularly odd place to look for support for the notion that marriage is to be radically delinked from any reference to heterosexual procreation. If Loving was about anything beyond the near per se invalidity of race-based classifications in criminal laws, it revolved precisely around, and assumed the primary power of, marriage as the main vehicle for propagation. The Loving Court went to great length to point out that, in addition to the racial classifications, the Virginia statute had the invidious purpose of preserving white racial integrity. Marriage as a union of man and woman for the purpose of procreation, far from being an irrelevancy to the Loving Court, was an assumption too obvious to need stating—and indeed was what rendered the ban on interracial marriage particularly invidious. Such a ban enshrines a pernicious view that the races are and forever should be separate, and that any admixture of non-white blood through interracial procreation would “mongrelize” the white race. As such, the statutes were rightly seen as a bulwark of the whole institution of white supremacy that it was the core purpose of the Fourteenth Amendment to eradicate. As Chief Justice Warren wrote: “Restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”13 Yet the tremendous moment of non-discriminatory marriage rights, and indeed the criticality of marriage in the analysis, flows most precisely from its connection to procreation and propagation of the races.
That it is dubious to find in Loving support for a notion of marriage stripped of its traditional one-man-one-woman understanding is shown yet again when Chief Justice Warren moves beyond Equal Protection to consider briefly the Lovings’ Due Process challenge to the statute. In short order, Warren notes that marriage is a “basic civil right of man, fundamental to our very existence and survival”, citing to Skinner v. Oklahoma.14 Warren’s invocation of Skinner, where the Supreme Court invalidated a law authorizing sterilization of certain convicted criminals, and linking it to our “existence and survival” as a species, makes the point clear: Marriage, to the Loving court, held its central role for reasons closely intertwined with its historic purpose of securing heterosexual bonds for purposes including procreation.
Needless to say, the Supreme Court’s jurisprudence has gone far since Loving, notably under Roe v. Wade15 and its progeny, to expand its notion of fundamental rights relating to marriage and relationships (or, in the view of many, to tragically restrict fundamental rights, like the right to life, for the most defenseless). These cases will likely be relevant to greater or lesser extents in evaluating Perry on appeal. The point here, however, is that race-based classifications stand in nothing like the same position to the core meaning of marriage as do the male and female identity of the marriage partners. Nor does homosexual conduct stand in anywhere near the same protected focus as race does under the Fourteenth Amendment. Judge Walker would have us believe that the main lesson Loving holds for us today is not its clarion call to reject racial classification and the invidious doctrines of racial supremacy that the Civil War was fought to eliminate, but rather that it was about a purely private right to form a marriage with whomever you want, a right that, as we shall see further on, once granted, will not be denied ever more bizarre forms of union. To suggest parity between Proposition 8 and anti-miscegenation laws cheapens the unique status of Loving in breaking down the legal and biological underpinnings of white supremacy and eradicating the legacy of slavery in the United States. That this is intuitively understood by many African-Americans perhaps explains their sceptical reaction to the anti-Proposition 8 propaganda.
III. The Gender Equality Argument—Conflating Equality and Obliteration
In parallel to his attempt to conscript Loving and the progress of racial equality as arguments for same-sex marriage, Judge Walker wishes to posit the vast redefinition of marriage he envisions as merely a logical next step to the progressive recognition of marriage as a union of equals, rather than as a male-dominated institution, including such developments as the elimination of coverture. Again, this is brilliant politics, as it makes any defense of traditional marriage at least presumptively seem like a defense of patriarchy. In Walker’s view, the exclusion of same-sex couples “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.” As if to remove any possible doubt about where things stand, Walker reminds us that “that time has passed.”
On its face, Walker’s argument from gender equality is more intuitively convincing than the argument from racial equality, since, unlike race, gender is indeed very closely connected to, indeed is at the core of, the question of whether a same-sex union can be seen as a marriage. As with much of the rest of his analysis, though, Walker conflates a commendable advance in the recognition of the equality of the genders, and the march toward understanding marriage as a union of equals, with the very different and more radical notion that all distinction between the genders is to be obliterated.
It may be conclusory to just assert that men and women have distinct and complementary marital roles and attributes, starting with their role in parenting. Yet it is no less conclusory than Walker’s assertion that “gender no longer forms an essential part of marriage.” Obviously in the view of the vast majority of Americans who have directly, through referendum or through their representatives, enacted statutes to limit marriage to a man and a woman, there is very much a sense that gender is somehow, in some way, relevant to what a marriage “is.” Nor is this commonly felt view irrational in the least. To start with one obvious way: Only an opposite-sex couple have the ability to conceive and raise their biological offspring. Immediately, unique consequences begin to flow from that very obvious natural fact: a whole host of marital rights and obligations, considerations of support obligations that include this new life the couple brings into being, the state’s interest in encouraging stability in this relationship. It is true that a same-sex couple might adopt children, or (in the case of lesbians) use technological means for one of the partners to conceive, but the very fact that such intervention is necessary means that the law can deal with those issues as part of the process of adoption or as a requirement ancillary to regulation of artificial conception. Not so with an opposite-sex couple, where such potential flows from the natural relationship itself. A same-sex partner cannot, absent technological interventions that leave little chance for “surprise,” leave the other partner pregnant, giving rise to a host of state interests around mutual support, the parental rights of biological parents, protection of the new life involved, etc.16 Without more, it is clear that the state has many important reasons for which to treat a marriage of a man and woman differently than other relationships. Walker’s statement that “today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents” is breathtaking, either in its wilful blindness, or in its wishful thinking.
It should be obvious that this distinction between genders, and consequent difference in the ramifications of same-sex and opposite-sex unions, need imply no inequality among the genders. The regrettable past invoked by Judge Walker, including the doctrine of coverture, by which a woman’s assets and legal identity were “subsumed” under her husband’s upon marriage, indeed “is passed” and rightly so. But the correction of this past inequality means assuring equal legal standing and protections for the rights of men and women in marriage, not the legal pretense that all aspects of masculine and feminine nature are to be obliterated or ignored.
IV. The Irrational Claim of “No Rational Basis”
Walker is keen to show that Proposition 8 does not have even a rational relation to a legitimate state interest, to increase the chances that its result, at least, will be upheld regardless of the standard of review an appellate court decides to apply. While there are several interests advanced by Proposition 8 proponents and rebutted by opponents, suffice it to say a central argument is over whether Proposition 8 furthers a valid interest in strengthening “traditional marriage.” Here, Walker is callous in his summary dismissal of proponents’ arguments.
Proponents submitted briefs and testimony that Proposition 8 would at least arguably serve the purposes of (1) promoting stability and responsibility in naturally procreative relationships, (2) promoting enduring and stable family structures for the responsible raising and care of children by their biological parents, (3) increasing the probability that natural procreation will occur within stable, enduring, and supporting family structures, (4) promoting the natural and mutually beneficial bonds between parents and their biological children, (5) increasing the probability that each child will be raised by both of his or her biological parents, (6) increasing the probability that each child will be raised by both a father and a mother, and (7) increasing the probability that each child will have a legally recognized father and mother.17
It is hard to imagine any of these reasons not being well understood by most Americans, and most people, as among the rationales for marriage between one man and one woman. Yet Walker rejects all of these as legitimate rationales since “evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”
Let us take these one at a time and understand the breadth, and audacity, of Walker’s “findings.”
(i) Rationality of ends: the preference for biological (opposite-sex) parents
Not only is Walker saying that there is no difference between same-sex parents and opposite-sex biological parents, he is saying that there is no conceivable reason to even prefer a “mother and father” over same-sex “parents” that would render any of proponents’ reasons rationally related to a valid objective. This conclusion is itself irrational. We can all agree that there may well be many same-sex couples who would be very good parents. Likewise, we may all agree that indeed today there are many, many adoptive, non-biological parents who are excellent parents. Does this mean that society must adopt a policy that removes any incentive for, or any slight additional preferences for and encouragements of, stable, biologically based family units? It surely should not, merely because one believes that there are many good same-sex or adoptive parents. It is amply rational, not to say intuitively obvious, that other things being equal, where a child is born to parents who have invested biologically in the child, whose act of begetting that child is in praxis with the couple’s own mutual love and commitment, they will see in the child both a reflection of themselves, and of their loving relationship with each other, all of which will tend to deepen their love for the child and commitment to raising him well. Moreover, experience is that children themselves want to know about their natural parents—where they came from—to the extent that many upon finding they have been adopted want to know about their natural parents, often causing confusion and questions of why they were “given away.” None of this is to deny the tragic reality of abusive and neglectful parents, or the great blessing that non-biological parents can be for many children in specific situations. But it is rational to say, and society should have the right to say, that, on average, looking at the whole population, it is a good thing if children are, as a general rule, raised by their biological father and mother, living in a stable, legally recognized and supported relationship, and that should be the “default position” absent special circumstances. Indeed, as discussed in Section VII, infra, to hold otherwise is to launch us on the path to Brave New World. Since biological, and ergo one-man-one-woman, parenting is the preferred norm, some slight preferences given to encourage and favor such marriages should be upheld.
Now, the normal application of “rational basis” review would be in complete accord with this approach. Under rational-basis review, it is sufficient if the legislation has a plausible relationship to some valid goal, and is reasonably tailored to achieve the end. The fact that there are cases of good adoptive parents does not require the state to avoid any measures to promote biological parenting. Likewise, if marriage rights go to some heterosexual couples who are incapable of procreation, that is, contra Justice Scalia’s dissenting dictum in Lawrence, no constitutional problem, since under rational-basis review only a “reasonable,” and not a “perfect,” fit between the means and the goal is required.18 The fact that the vast majority of heterosexual couples have the chance to naturally bear their biological offspring, while exactly zero percent of homosexual couples do, is more than sufficient to justify differential treatment under rational-basis review.
Walker, to be sure, says that Proposition 8 should have to face strict-scrutiny, not rational-basis, review. However, to hedge his bets, especially given Justice Kennedy’s clear refusal to apply strict scrutiny in Lawrence and reliance instead on the rational-basis test, Walker’s clear intellectual hurdle, and goal, is to show that Proposition 8 flunks even rational-basis review. Since, as explained above, rational-basis review should be satisfied so long as there is a plausible relationship between the law’s requirements and a valid goal like stable child rearing, Walker must find that there is absolutely no, even generalized advantage to children in being raised by their biological (and thus, of necessity, opposite-sex) parents. Tactically, one can understand why he must draw this conclusion—without it, Proposition 8 easily passes any honest rational-basis review. Still, one should wonder what authority a federal judge would invoke to reach the breathtaking conclusion that not only is there no, even generalized desirability, other things being equal, for children to be raised by their biological parents, but in fact even to posit that this is irrational, in constitutional terms.
To overturn over two centuries of American state marriage law, millennia of social custom, and, most relevantly, the fresh verdict of the people of California that limiting marriage to one man and one woman serves a valid interest in supporting stable families and child rearing, one might expect this authority would be an express constitutional provision, or at least a long, established line of case law. Failing this, he might point to a prevailing consensus among other states showing that no or few other states had reached the conclusion that such a limitation could be rationally grounded.
Of course, there is no constitutional provision or long line of case law. Even if, in the desperate search for straws to clutch at, one wanted to count Lawrence as implicit support, the opinions of both Justice Kennedy and Justice O’Connor (concurring in the judgment) make clear they wish to stop short of endorsing such a right to same-sex marriage; hence, together with the three dissenters in Lawrence, one can say that the radical notion that it is irrational to favor opposite-sex couples for marriage recognition has never to this day commanded a majority of the Supreme Court. Similarly, there is no lopsided consensus among the states making California an anomaly. Indeed, the reverse is true: Forty-five states require marriage to be between a man and a woman, many having reaffirmed long-standing statutory law by recently adopted state-constitutional provisions to this effect. Three of the five states that now recognize same-sex marriage do so only because of state court constitutional interpretations that suffer from the same infirmities as Perry itself.
So what awesome authority does Walker invoke to overturn these long-held and recently reaffirmed judgments of the people? What authority is so weighty that the views of both long tradition and current democratic processes must be cast aside? The answer, it appears, is Professor Michael Lamb.
Lamb is a developmental psychologist at Cambridge University in England. When Judge Walker sweepingly rejects all of Proposition 8’s purported rationales with the assertion that “same-sex and opposite-sex parents are of equal quality,” he rests this assertion magisterially on paragraphs 69-73 of the opinion’s findings of fact. A look to these paragraphs finds that they all rely on statements by Lamb: “Children raised by gay and lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful, and well-adjusted”19; “children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male parent and a female parent does not increase the likelihood that a child will be well-adjusted”20. This may seem surprising to many of us who raise children and know intuitively the distinct and complementary roles played by mothers and fathers; however, we need not worry, because Lamb assures us that “the research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology”21.
That might be reassuring, except for the fact that, as recently as the 1980s, Lamb was publishing research that showed the exact opposite. Indeed, an earlier Lamb study concluded that “the data suggest that the differences between maternal and paternal behavior in their biological gender or sex roles” are more critical to healthy child development even than the degree of the parents’ involvement or paternal desire for involvement in infant care.
When pressed during cross-examination for an explanation of his change in position, Lamb said nonchalantly that his previous findings “have not been held up in subsequent research.” Lawyers for Proposition 8 may be forgiven for wondering whether any of the change in Lamb’s research from the 1980s to today might be due in part to the ascendance of pro-homosexual political influence, particularly in academia. Asked if scientists, universities, and journals were vulnerable to political pressure, Lamb, perhaps at his most candid, replied, “No one is hermetically sealed from politics.”22
None of this, of course, is to ridicule Professor Lamb. Assuredly academic views and the results of research change and evolve over time, and charity demands we assume Lamb was just saying what he believed at each time. This is most definitely, though, to take to task Judge Walker, for invoking a handful of academics, who admit that the research is constantly evolving, to trump the decisions of the democratic process. It is one thing to tell a popular majority that their will must be thwarted because it runs contrary to an express constitutional provision, or imperils the “scheme of ordered liberty” by infringing rights “deeply rooted in our nation’s history and tradition.” It is quite another thing to tell that popular majority its will must be thwarted, indeed that its whole expression is “irrational,” because it goes against a gaggle of academic theorists, or at any rate against what they say today before their views “evolve” again.
Proposition 8 has what is, for constitutional purposes at least, a sufficiently rational end. While it leaves intact numerous protections for same-sex couples through domestic-partnership laws, rights to adoption, inheritance, etc., it desires to give some special, largely symbolic, but still important status to a family unit that is in general likely to procreate and raise their own biological offspring. It wants to send a message that while other family structures are valuable and protected, a nuclear, biologically grounded family unit plays a special role, and is preferred as the norm for family units. Special rules of recognition and a unique legal framework are justified, among other reasons, by the spontaneous opportunities for procreation that inhere in the heterosexual form. Some level of special privileges for marriage are justified by the desire to incentivize procreation to take place in that form, especially where adequate, if not completely equal, alternatives such as domestic partnership are available for others.
(ii) Rationality of means: Does Proposition 8 advance traditional marriage?
It was reported that, early in the trial, Judge Walker asked counsel for Proposition 8 what harm it did to opposite-sex couples if marriage rights were allowed to same-sex couples. It’s the wrong question, at least under rational-basis review. If the government provides a tax credit to those who install energy-efficient equipment in their homes because it wants to incentivize energy efficiency, it does not avail homeowners who have not installed such equipment to demand the same credit, saying, “It’s not fair, we want the credit too, and in any event, how does giving it to us too harm those who did install the equipment?” It may be true that a given homeowner who installed the equipment is no worse off just because someone else gets the credit too. It may also be the case that the homeowner who has not installed the equipment does other things that are socially beneficial, and are worthy of subsidy or support through other programs. Both of these facts, however, are irrelevant, and in no way undercut the government’s right to incentivize a particular activity, at this time, that it believes meets a particular social need or confers a social benefit. The law looks not only at the specific effect on a given party, but also at what may likely come about on a dynamic and going-forward basis over the broader society because of the incentives put in place. It is clear that Judge Walker harbored a preconceived notion about the effect of same-sex marriage-recognition on traditional marriage from the beginning of the trial, and this showed itself throughout in a deliberately crabbed reading and callous rejection of proponents’ arguments on this aspect.
As an initial matter, we see that Walker’s rejection of proponents’ arguments involves his assertion that the measure “does not make it more likely that opposite-sex couples will marry and raise offspring biologically.” The supportive citations for his conclusion are to paragraphs 43, 46, and 51 of the findings of fact. All of the cited findings relate to testimony by various “experts” that sexual orientation and identity are immutable and that it is not a realistic option for gays and lesbians to marry a person of the opposite sex. This raises a serious question as to whether Judge Walker misunderstood the depth of proponents’ rationales. Perhaps it is true that if proponents were solely claiming that Proposition 8 would cajole homosexuals to marry members of the opposite sex and have children, that claim would be counter-indicated by the cited testimony. But that is not, or at least not all of, what proponents are arguing.
Yet further evidence of Walker’s misunderstanding of this point appears in his rejection of the third purported interest advanced by Proposition 8, that of promoting opposite-sex parenting over same-sex parenting. Walker writes:
To the extent California has an interest in encouraging sexual activity to occur within marriage (a debatable proposition in light of Lawrence, 539 US at 571) the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage. . . . To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.23
This passage is almost risible in its mischaracterization not only of proponents’ arguments, but also of the natural facts of reproduction. Obviously, proponents have no interest to see that same-sex sexual activity occur within marriage “to ensure that reproduction occurs in stable households.” As should be obvious to everyone accept Judge Walker, unlike heterosexual sexual activity, same-sex sexual activity has absolutely no connection with or bearing on reproduction. It may be true that, quite independently of proponents’ clearly expressed (and, as seen above, rational) purpose of promoting stable, biological (ergo opposite-sex) parenting, there is also an interest in seeing that any child rearing, even that flowing from adoption and technological means of conception, happens in a sufficiently stable environment. To this end, requiring such adoptions to be limited to married couples and domestic partners (including same-sex partners), may well be rational and desirable. But that is not the interest at issue in this passage of the opinion—the specific interest is in promoting biological (opposite-sex) parenting and seeing that it takes place in an especially stable framework. That rational goal is obviously not undercut at all by forcing homosexual (ergo non-reproductive) sexual activity to take place outside of marriage.
Given the unique and central role that opposite-sex couples play in biological reproduction and parenting, it is the long-term consequence for the institution of marriage for heterosexuals that is a main concern of proponents. Although he seems confused about this point in passages like that cited above, Walker elsewhere acknowledges this concern, and belittles it. Did proponents present no argumentation on the impact of weakening opposite-sex marriage as such?
Not exactly. Proponents presented expert testimony, including from David Blankenhorn, author of Fatherless America and The Future of Marriage, editor of four books on family structure and marriage, and editor or author of several publications on the subject. Specifically, Blankenhorn discussed the phenomenon of deinstitutionalization, whereby the stable patterns and rules surrounding an institution like marriage slowly change and erode the institution. It was Blankenhorn’s testimony that allowing same-sex marriage would undermine respect for the unique status of traditional marriage, and this could lead to further deinstitutionalization, including an increase in out-of-wedlock births, divorce, etc. Unlike the ready acceptance accorded the views of Michael Lamb and other plaintiff experts, Judge Walker minutely dissected Blankenhorn, spending over ten pages of his opinion critiquing his credentials, suitability as an expert witness, and actual testimony. He pointedly dismissed Blankenhorn’s opinion that same-sex marriage may be both a cause and a symptom of deinstitutionalization as “tautological.” A more objective and neutral (i.e. judicial) approach might have recognized that there is such a thing as a vicious cycle, wherein ideas such as same-sex marriage, together with other trends, could undermine respect for the unique role of traditional marriage as the exclusive framework for procreative intimacy and child-rearing, leading to an erosion of marriage’s unique legal status and practical benefits, which in turn encourages both an abandonment of marriage by those weakly committed to it, and to further social initiatives to progressively weaken its hold. Walker did refer to data from Massachusetts that showed “marriage and divorce” rates did not change significantly in Massachusetts in the four years after same-sex marriage was made legal compared with the four years before legalization24, but did not explain why it would be irrational for California voters to assume either that four years was not sufficient time for such a social impact to be fully manifested, or that demographic or other factors would make the Massachusetts data less than dispositive for California.
A popular majority might rationally determine that there is a risk certain social consequences would follow if marriage and biological reproduction were so definitively decoupled, as they surely would be, by a policy that says marriage, even at the most generalized society-wide level, has nothing to do with natural reproduction. Many, marginally committed to the institution of marriage, might see less of a point in ensuring that natural reproduction took place in marriage, since, after all, under the “new paradigm,” not only need not marriage and reproduction go hand in hand, but it is irrational even to structure marriage as if they should. With such a commitment to marriage goes also a commitment to biological two-parent child raising. This new paradigm, a rational public might think, would be more fuel thrown on the fire that is the current crisis of family-structure breakdown and out-of-wedlock births.
To be sure, these negative consequences would not befall every heterosexual couple. Those committed to traditional marriage, most of all the religiously grounded whom Walker sees as the source of nothing but discrimination and every obstacle to progress, will not be affected by whatever the state says about civil marriage. Indeed, this is precisely the point that underscores the valid, secular focus of proponents’ concerns. Strongly religious people have no need to have the civil law exclusively recognize their forms of marriages, as long as their marriages are recognized. They will find any so-called marriage recognized in civil law only as meaningful as comports with their moral sense; they will not have their own attachment to traditional marriage undercut one iota, nor their sense that sexual activity or procreation outside of such traditional marriage is immoral. Rather, it is those without a strong religious sense, for whom the imprimatur of the state sends, by default, a stronger message, or at least for whom its according of privileges and responsibilities guides behaviour to a greater degree, whose conduct will be affected by such fundamental shifts in the definition of marriage. Far from being undertaken with the interests of the religious in mind, it is most precisely for the valid secular goal of promoting the benefits of stable, biological two-parent family structures among the not so religious that Proposition 8 is amply rational.
How much of this Blankenhorn effectively brought out is unclear. We do know that Walker was not impressed at all, among other things finding Blankenhorn’s lack of a graduate degree in sociology, psychology, or anthropology a strong indictment. One is tempted to wonder whether, given the political partisanship of many such academic faculties, such a lack is necessarily fatal, or not even desirable. Nonetheless, it may well be conceded that Blankenhorn’s testimony was not sufficiently grounded in original, empirical research, and even that he was ambiguous and contradictory at points, without conceding that a democratic majority should have to pass “peer review” with academic elites in order to have a legislative finding deemed rational. Indeed, as Lamb’s self-contradiction with his earlier research shows, views around such complex subjects are highly nuanced, and are constantly evolving. The question is: Who gets to decide important social policy questions while these debates go on? The majority who passed Proposition 8 might be forgiven for thinking that in a democracy, the majority does, and need not secure an academic approval before enacting a social and political determination into law.
V. Perry as Judicial Usurpation
While Judge Walker must be given credit for Perry’s rhetorical flair and emotive invocation of the progress of racial and gender equality, it cannot be saved from the fact that it substitutes Walker’s own ipse dixit that the time for gender roles in marriage “has passed” for the stubborn reality that out of the fifty states, same-sex marriage has never been approved by a legislature free of judicial compulsion in forty-eight states25, and as of late has been rejected at every opportunity it has had to be considered in a popular referendum.
What basis is there to assert that the federal Constitution requires that the received and universal definition of marriage must be so radically altered? It is an alteration, to many a defacement, that as we have seen goes far deeper than any change worked by Loving or the abolition of coverture.
When the Loving Court invalidated anti-miscegenation statutes, it could point not only to the core purpose of the Civil War Amendments, but also to the fact that, as of the time of the decision, only 14 states retained such statutes, and many were not enforced. Even Roe, though unconvincing on this point, could invoke a fig leaf that it was responding to social trends rather than imposing them, by referring to some legislative efforts during the late 1960s and early 1970s to liberalize abortion law. By contrast, Walker must face the fact that not only do forty-five states prohibit same-sex marriage (and forty-eight would, but for other Perry-like judicial decisions), but that the recent trend is to reconfirm the traditional understanding of marriage and to react against the kind of change Perry is trying to impose.
From Maine to California, the people have never accepted same-sex marriage. Judge Walker dismissed Blankenhorn’s analysis as tautological for suggesting same-sex marriage is both a cause and an effect of deinstitutionalization; but how much more truly tautological is Walker himself for invoking a hoped-for but so far non-existent “passing” of society’s attachment to traditional marriage as a basis for destroying it by judicial fiat?
In sum, Perry can rightly be described as judicial usurpation because it substitutes for the expressed will of the people not a valid constitutional provision, not a right “implicit in the scheme of ordered liberty,” not even recognition of a larger, discernible national consensus, but rather the unsupported and demonstrably false belief of Judge Walker that for our society “the time has passed” for any rational significance to marriage being an institution between one man and one woman.
Since it is in the nature of unwarranted usurpations of power that they are not naturally self-limiting or self-correcting, it is important to understand the dangerous path on which Perry’s assumptions and logic set us.
VI. The Legal and Social Implications of Perry
Judge Walker intends that marriage be radically redefined to obliterate the heretofore constant understanding of it as a relationship between one man and one woman, and instead to be open to same-sex unions. Yet, ironically, he is careful to observe other historic characteristics that he seems content to let stand. Most notably, he recites without hint of controversy that “marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.” But surely the limitation of marriage to “two parties” is no less a retained historical characteristic, and no less an “arbitrary” one, than the limitation to opposite sexes. Indeed, Judge Walker’s voluminous findings of fact on the history of marriage in the United States oddly omit any reference to the real controversies over polygamy. A search of the entire opinion reveals only two uses of the word “polygamy,” one in a quote by proponents’ witness Blankenhorn, and one by Proposition 8 proponent and defendant-intervenor Hak-Shing William Tam, the latter pointing out historical connections between same-sex marriage and polygamy. Yet Walker serenely passes over this as if utterly irrelevant to the implications of the decision at hand, which, on a bit of reflection, one can see it is not.
Perry fundamentally faults Proposition 8 with “enacting a private moral view,” and concludes it is not constitutionally legitimate for moral disapproval alone to deny rights to gay men and lesbians. But what must he say then of the Supreme Court’s 1878 decision in Reynolds v. United States26, which in the course of upholding a criminal conviction for bigamy in the Utah Territory against constitutional challenge, felt it appropriate to observe that “polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African peoples.”27 This would seem to be, at its core, a “moral disapproval”—and a rather white, Eurocentric one—of polygamy, one that would have to fall as surely as Proposition 8. Indeed, it takes little imagination to envision the ringing language in some Perryesque decision a few years hence, comparing Justice Whyte’s comments on “odious polygamy” in Reynolds to Chief Justice Burger’s concurring language in Bowers v. Hardwick28, the 1986 case upholding a Georgia anti-sodomy law that was overruled in Lawrence, that sodomy was always condemned in Judeo-Christian civilization and that laws against it had “ancient roots.”29 Under the logic of Perry, with its findings of fact about the historic discrimination against homosexuals, how could polygamists not prevail? The historical discrimination, including physical violence and murder, against pre-reform Mormons is well documented. Doubtless today an open polygamist would be subjected to the same social disapproval and discrimination as would homosexuals, and surely more. If being a historically targeted minority is indeed an additional reason to subject discriminatory measures against a group to heightened scrutiny, as Walker says, how could anti-polygamy statutes not be subject to a searching review?
Continuing to borrow from Perry’s template, polygamists surely could find included among Michael Lamb’s colleagues a bevy of Cambridge anthropologists who could offer expert testimony on the social and practical advantages of polygamous child raising. After all, if it takes a village to raise a child, why not marry one? Perhaps Lee Badgett, an economist who testified for Proposition 8 opponents about the economic harms it inflicted on California, could be called by polygamists to testify on the economic benefits of polygamy. Especially given the current climate wherein two income earners in a household are increasingly the norm, Badgett could elaborate on the household efficiencies of multiple parents to share work and child-raising duties. Rather than tedious debates about whether two mothers are “equal in quality” to a mother and a father, why not play it safe and have two mothers and a father? This, polygamists would say, would be not only arguably equal in quality to the traditional two-parent household, but also mathematically provable to be even greater in quantity. Putting all of these findings together with the obvious burdening of their fundamental right to marry whom they want, how could aspiring polygamists not prevail on a constitutional challenge to anti-polygamy statutes? We can begin to see the path that Perry has put us on.
Let us stay for a moment (which is all it will be, if Perry is affirmed) with the construct of a two-party relationship. If, as Perry finds, marriage fundamentally only requires “two parties to give their free consent to form a relationship,” what possible reason could Judge Walker give to uphold restrictions against incest, at least among family members of the age of consent? The oft-cited rationale, for those keen to avoid suspicion of harboring a “moral” objection, is that incest can lead to genetic diseases. But surely this is no longer persuasive, given Perry’s complete divorce of marriage from procreation. It is illegitimate, Perry would say, to assume marriage is in contemplation of procreation, so objections to the genetic risks of incest would be irrelevant. Again, without much imagination needed, one can envision the long findings of fact of some Perryesque decision a few years hence detailing the venerable history of religious, and specifically Christian, condemnation of incest, all leading to the conclusion that laws against incest and incestuous marriage are grounded only on a “moral view” and therefore not valid under rational-basis review.
One is rightly sceptical of “slippery slope” arguments because they often prove too much. Yet, in the area of constitutional decision-making, the slippery slopes have usually been realized. Whether it is the right to contraception in Griswold leading to the right to abortion in Roe, leading to the almost complete constitutional protection of abortion on demand under Roe’s progeny, or the right to sodomy in Lawrence leading to the instant claim for same-sex marriage, leading to the next assertion of an unfettered right to marry one’s daughter or three of her friends, the slippery slope is not a mere rhetorical flourish. It should not surprise us that slippery slopes actually materialize in these cases since courts in constitutional decision-making, unlike legislatures or popular initiatives, have to at least try to be consistent in the application of legal doctrines once they are enunciated. Therefore Justice Scalia, sagely dismissing Justice Kennedy’s disclaimer in Lawrence, wrote, “this case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.”30
Now, to be sure, it is the contention and hope of Proposition 8 proponents that Justice Scalia was prematurely pessimistic in saying that Lawrence leads ineluctably to the affirmation of same-sex marriage. They contend, and the foregoing analysis would support their contention, that even if “moral disapproval” alone cannot support discrimination against same-sex marriage, there are entirely rational interests in favoring opposite-sex biological parenting as a norm that would support that discrimination. Notwithstanding Scalia’s concern that “even the sterile and the elderly are allowed to marry,” it should not be fatal under rational-basis analysis that the scheme allows some sterile opposite-sex couples to marry, since this categorical permission tracks the stated interest in procreation an overwhelming-enough proportion of the time to be amply rational, if not perfect. Having said all of this, however, if the principle were established that same-sex marriage cannot be constitutionally denied based only on “moral disapproval,” and furthermore that favoring of some general norm of biological opposite-sex parenting is not a valid grounds for denying same-sex marriage, then there would really be no basis for restrictions on any other kind of relationship being recognized by marriage. Nor, for that matter, could a state constitutionally prohibit incest, bigamy, prostitution, or many other “morals” offenses. If “consent” is really the key determinant, one begins to question how even forms of violent sexual or other physical practices might be restricted, or how illicit drug use can be banned, since an adult, informed consent to be harmed would trump any moral disapproval of such practices.
Interestingly, while Walker’s opinion makes a few references to the “intimate relationship” protected by marriage, his operative legal definition of what is constitutionally protected seems to be the right to come together to form a household for mutual support, and indeed, citing Lawrence, rebuffs the notion that marriage is “simply about the right to have sexual intercourse.” Yet, taking Walker at his word, it is hard to see how on this reading the privileges of marriage could be denied to other groups seeking to form a household for mutual support. Such groupings might be elderly siblings dependent on each other for support, a grown child with an elderly parent, or, for that matter, a group of three or more relations, or even just good friends, bound together by shared values and a commitment to care for each other through life. Could these groups persuasively be denied the benefits of marriage while same-sex homosexual couples enjoy them? Under what possible rationale—that the homosexual couples engage in homosexual sexual intimacy whereas the elderly siblings do not? Basing a distinction on this ground, beyond being deeply offensive to those who might have thought that a lifetime relationship of caring and support would be more critical a requirement than the practice of non-reproductive sex acts, would contradict Walker’s assurances that the expanded notion of marriage he is creating is not “simply about the right to have sexual intercourse.”
These entirely plausible examples serve to illustrate that, at least if “principle and logic” have anything to do with judicial decisions, Perry is putting us on a very slippery and direct slope to the end of marriage as we know it, exactly the danger articulated by the proponents of Proposition 8.
One has a sense that some opponents of same-sex marriage, if they thought Perry would be upheld and the gates had to open to same-sex marriage, might almost prefer to see it further extended to these other broad types of arrangements. The rationale might be something like the following. If expanded this broadly, marriage, or more to the point civil marriage, would cease to have any connotation of sexual relations; elderly siblings, multi-generational groupings, others whose relationships are clearly non-sexual, would be eligible as well. Better to have that, a mere protection of “association,” than a marriage scheme implying, however vaguely, sexual relations, that accepted same-sex couples and hence condoned homosexual activity. An expanded “civil association” would imply no endorsement of homosexuality per se, and would in effect cease to be considered “marriage.” Instead, this new institution would be “the thing people sign up for when they form a mutual-support structure, without any assumption of sexual intimacy, and they need certain inheritance, tax, insurance, or other benefits.” “Real marriage,” these people might say, would shed its dependence on the state for its social legitimacy and status, and return to being recognized in the traditional way through religious or other social-customary solemnizing. The openness of this “real marriage” to same-sex couples would be entirely controlled as a private and social matter by the relevant religious or social communities that solemnize it. The status and social dignity of marriage, delinked from recognition as such by law, would turn more on the size and prominence of the religious and social communities that recognized and honored particular types of marriage. Some smaller religious and social groups would almost surely recognize same-sex marriage, and to the extent status within that group is what matters most to its adherents, that would have to be sufficient. If it turned out that in such a scheme the great majority of Americans belong to religious or social communities that do not recognize same-sex unions as valid marriages within their world view, and consequently same-sex couples faced the denial of equal social “status” with opposite-sex couples in the broader society that Perry found constitutionally troubling, it would now only flow from the world views of these religious and social groups and their adherents, and hence, presumably, be totally beyond any legal or constitutional redress.
This whole line of thinking, of course, would be strikingly at odds with the arguments advanced by proponents of Proposition 8, who urge precisely that the state’s conferring of secular benefits on one-man-one-woman marriage serves the important function of incentivizing and strengthening those unions and the biological two-parent child raising they engender. Still, many such proponents, if forced to choose between one system that enshrines as a matter of policy that heterosexual, biologically based marriage and parenting have no marginal value whatsoever, and deserve not the slightest preference, over same-sex marriage, and another system that removed the state from the language of marriage entirely and left it to be defined socially by the prevailing opinions of religious and social groups, might well conclude that the latter system would be the lesser of two evils.
Just as interestingly, one senses, despite the undeniably more neutral and “secular” character of the latter system, that neither the partisans for same-sex marriage nor Judge Walker want such a new form of “real marriage” delinked from state recognition. Walker is at pains in his opinion to talk not in terms of destroying marriage, but of recognizing its “sacred” character, insisting only that this “sacredness” applies absolutely equally to homosexual and heterosexual unions.31 His findings of fact are replete with testimony of plaintiffs about how domestic partnership was inadequate for them because it could not confer the “social acceptance” and lacked the “status” of marriage.32 It is an interesting complaint, in light of the fact that elsewhere the opinion concedes, as it must, that California has given just about every tangible, legal benefit of marriage to domestic partnership, for which same-sex couples are eligible.
At a practical level, one can be amazed at Judge Walker’s obtuseness in not seeing that a good part of the “status” and “social acceptance” of marriage, among a majority of our people, come from its historic meaning and significance as a union of a man and a woman, the sanctuary of loving procreation of the next generation, necessary, as Chief Justice Warren recalled, “to our very existence and survival.” How could one think that one could change that and have marriage still be, and be seen to be, the same thing? Walker’s obtuseness in thinking that something so fundamental about marriage could be changed without any effect on the very symbolic power of marriage that homosexuals so covet would be matched only by his arrogance in thinking, if he indeed thinks, that a judicial fiat could make it so.
Beyond the practical matter of how feasible this project would be, however, the intended aim—to secure not just legal equality but social acceptance and affirmation of same-sex relationships as fully co-equal with traditional marriage—reveals that there is a far broader agenda at work here than mere equal rights to state recognition. As the foregoing analysis shows, state recognition alone cannot guarantee full equality. Ultimately social acceptance will turn not on the fact that homosexuals can legally get a marriage license, any more than acceptance for polygamists would if Perry were to take that next, logical step.
Above, Judge Walker is taken to task for arrogance in thinking his decision in Perry can change this social situation, but, as noted throughout, Judge Walker is a very intelligent man who understands how these things are done. He would be very arrogant and obtuse if he thought this decision, even if affirmed and applied to the entire Nation, would bring about social acceptance of same-sex marriage on its own. He almost surely does not think this. However, he knows that, like the many decisions he cites as precedent, this decision is but a step on a journey.
VII. Brave New World: Religion and Nature as Ultimate Objects of Perry’s Attack
The inability of civil-marriage “equality” to confer social status and acceptance flows from the fact that most Americans continue to believe that certain moral consequences flow from whether we live our lives according to norms of the common good given by a certain philosophical world view, or according to norms that impede that common good. If these world views did not exist, or if they had no power, there would be few norms against which to measure the morality of action, and hence little basis other than sheer “taste” on which to base any moral criticism; and, in this case, any honest reflection would have to conclude that the criticism was not properly even a moral criticism, but rather an arbitrary preference. Without world views, then, there would be no basis on which to morally object to homosexuality, and hence to deny the acceptance that might as a prima facie matter flow from its being accepted by the positive law of the state. There would also be no basis to morally object to bigamy, incest, bestiality, or, for that matter, racism, economic exploitation, or various other things that empirically “happen” in the world but are routinely criticized. In this situation, while a majority of Americans might still object to homosexuality on purely “taste” grounds—not finding it personally appealing—they would, if they were honest, have little more basis to deny status and dignity to same-sex marriage than to deny it to those who like chocolate ice cream rather than strawberry.
In parts, the Perry opinion appears to proceed as if we live in such a world without world views, as it spends significant time in the findings of fact establishing that sexual orientation is not a morally chosen path but rather simply an orientation that is given genetically, and over which there is little choice.33 This finding (putting aside the reliability of self-reported experiences of choice) would be a powerful argument if there were no world views, since then, the finding that an orientation is no different than a taste in ice cream would render it ergo not subject to moral criticism. It is likely the source of a good-faith confusion and surprise on the part of same-sex-marriage proponents, then, when a showing of the unchosen nature of sexual orientation does not lead more readily to the collapse of all moral objections to homosexuality and same-sex marriage. Why don’t these people see that I didn’t choose this orientation, and just accept me for what I am?
The reason such objections do not collapse, of course, is that there are world views, systems which inform a moral framework in which actions are not (always) value-free expressions of taste but (sometimes) represent morally significant choices. World views support a basis for identifying and prioritizing moral aspects of a “good” society, such as just levels of economic support, racial equality, or promotion of biological family unity, notwithstanding unchosen “tastes” that may object to some or all of these values. While a person may have unchosen genetic tendencies, for example, to prefer people of his own race, that fact will not stop a developed world view from articulating a vision of the common good that limits, to a degree, that person’s ability to act on his preferences. World views, in short, while acknowledging the unchosen and random aspects of taste, deny them the power to thwart any moral consensus around a normative public order.34
World views come from a variety of sources in our pluralistic society. In the world view of secular materialism, notions of the common good are highly generalized, avoiding specific substantive content of good and bad as much as possible, and indeed finding a maximum of choice a good in itself. In the secular-materialist world view, the substantive content of norms, or lack thereof, may approach that found in the complete absence of world views, since materialism generally seeks to avoid the identification of overarching meaning or purposes in the natural world. Identification of such “meaning” would implicitly suggest there is significance in metaphysical concepts like “purpose” that are, inherently, not material, obviously contradicting a rigorously materialist world view.
While it is beyond the scope of this analysis to consider the feasibility of a truly, completely materialist world view, divorced of any concept of purpose (and whether, if there were such a world view, it could support any moral norms at all, including ones that we likely would all agree are fundamental), suffice it to say that as relevant here, the more a world view begins to infer and detail metaphysical purpose in the natural order, the more likely it is that such a world view will move beyond the unchosen fact of “taste” or orientation from which no moral norms are articulable to the inference of more and more detailed moral norms against which the way we live our lives —i.e. our actions—is to be judged.
A detailed reading of Perry shows that Judge Walker completely understands this, and knows that his longer-term goal of attacking all social disapproval of homosexuality will not be achieved simply by showing that orientation is not chosen. It is true, as noted above, that in parts Perry appeals to the unchosen nature of sexual orientation as if that should win the day. That is because it is still worth filling the record with references to this unchosen nature of sexual orientation, as this assists a second short-term objective. To deal with the contingency that a reviewing court might not find that Proposition 8 fails a rational-basis analysis, it would be helpful to build a record that would support an alternative holding that homosexuals are a suspect class for Equal Protection purposes. A majority of the Supreme Court has not clearly signed up for this yet, and this kind of record could be helpful in getting them there, as an unchosen orientation could be argued to be more akin to status, like race, and thus entitled to stricter scrutiny when state discrimination based on sexual orientation is challenged under Equal Protection. However, this short-term goal by no means causes Walker to ignore the long-term goal, the goal not merely of changing laws, but of social and cultural transformation.
If it were only the short-term goal of legal equality at issue, one would expect the factual record to be filled with examples of past legal discrimination against homosexuals. In fairness, one could grant judicial notice of this, since there has been not only discrimination, but outright criminal prohibition of homosexual conduct, through much of the history of the nation prior to Lawrence. Perhaps, to the extent that Walker was making a point about how the right to marry would help remedy discrimination against homosexuals in accommodation, for example, detailing a history of how homosexuals have been subject to such discrimination would be completely understandable. Indeed, there are extensive findings on past legal discrimination. Yet Walker’s factual findings go beyond what would seem “rationally related” to showing secular discrimination against homosexuals.
In a telling part of the opinion, the finding of fact with the greatest number of sub-sections occurs under the headline, “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” 35 This finding goes at length, not through any single act of legally cognizable discrimination, but through the doctrines of the Catholic Church and major Protestant denominations that, in accordance with their Biblical and religious world views, find homosexual activity sinful. The Southern Baptist Convention (“Legalizing ‘same sex marriage” would convey societal approval of a homosexual lifestyle, which the Bible calls sinful”), the Vatican’s Congregation for the Doctrine of the Faith (“Sacred Scripture condemns homosexual acts as a serious depravity,” and “There are absolutely no grounds for considering homosexual unions to be ‘in any way similar or even remotely analogous to God’s plan for marriage and family”), the Evangelical Presbyterian Church (“homosexual practice is . . . a perversion of the sexual relationship as God intended it to be”), the Free Methodist Church (“Homosexual behaviour, as all sexual deviation, is a perversion of God’s created order”), the Orthodox Church of America (“homosexuality is to be approached as the result of humanity’s rebellion against God”), and the Lutheran Church-Missouri Synod (“The Lord teaches us through His Word that homosexuality is a sinful distortion of His desire that one man and one woman live together as husband and wife”) are all, in this finding of fact, complicit in the creation of a moral climate that does not tolerate homosexual conduct, and certainly not same-sex marriage. To make sure the appropriate inference is drawn, the finding of fact also notes political scientist Gary Segura for his testimony that “Religion is the chief obstacle for gay and lesbian political progress.”36
How exactly does this finding of fact advance the legal determination of whether the asserted bases of Proposition 8 meet or do not meet the rational-basis test? Possibly, though not persuasively, one might say that if Proposition 8 were challenged under the Establishment Clause as establishing a religious view of marriage, such quotes might be relevant if they showed that some specific finding in the preamble of the law tracked a specific religious tenet. For example, Justice Stevens, dissenting in Webster v. Reproductive Health Services37, thought that the preamble to the Missouri abortion statute upheld in that case should be invalid under the Establishment Clause for finding that “life begins at conception,” a purely “religious view” without secular basis.38 But of course, in Perry, there is no Establishment Clause challenge, and Proposition 8 on its face asserts secular interests for the limitation of marriage to a man and a woman, related to the promotion of opposite-sex, biological parenting, resulting stable family units, and the like. Moreover, the fact that individual voters may have based a vote for Proposition 8 on their religious beliefs is irrelevant. Even Justice Stevens, dissenting in Webster, noted that his conclusion “did not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions or on the fact that the legislators who voted to enact it may have been motivated by religious considerations.”39 And obviously so, lest we render constitutionally suspect a law prohibiting racial discrimination because some proponents may have been motivated by a religious view on “the equality of all people before God.”
So what exactly is the purpose of these extensive fact findings on the doctrinal tenets of major Christian groups against homosexuality? Read together with the findings that social acceptance, and not mere legal equality, is the object of plaintiffs, it becomes increasingly clear that the ground is being laid for an assault on the perceived obstacles to full acceptance of the homosexual lifestyle, which are two. First, as Walker already has quoted Segura to explain, is religion, and specifically the religious world view adopted by the above-quoted tenets that provide for a moral norm under which homosexual marriage would contravene the common good. Second, and closely aligned to it, is the natural fact that these world views interpret as counter-indicating homosexuality, namely, the sexual complementarity of man and woman.
Together, these two factors, nature and religion, form a powerful combination that, in Walker’s view, stands in the way of homosexual progress. The natural fact of sexual complementarity of man and woman is initially the more powerful hurdle because on its face it is scientific and secular. One can, quite legitimately, have no religious world view at all and rationally posit that biological, opposite-sex marriage and parenting are socially beneficial for the reasons discussed above. This then creates the first hurdle by justifying differential legal treatment of same-sex and opposite-sex marriage. The religious element, though at first seemingly the less powerful of the two because it does not play a direct legal role, plays an ultimately more important function by investing the natural fact of complementarity with purpose and metaphysical meaning, as only a developed world view can do. Whereas the secular same-sex marriage opponent would point to the physiological, developmental, and social benefits of opposite-sex marriage, the religious world view allows people to see the higher beauty and meaning of committed heterosexual married love. In this view, it is no mere accident that the very love of a man and woman, which leads them to consummate their emotional and spiritual closeness in physical intimacy, is tied by nature (to be clear, by the very functioning of the bodily organs involved) to the awesome power of bringing forth new life—rather, it is a deeper reflection of the design of the Creator that graciously allows that form of love to essentially cooperate with His own power of creation. Cooperate with and not copy to be sure, for no human power could approach the unique divine power of creation ex nihilo that brought the whole universe into being; but, nonetheless, by cooperating with this divine purpose through the very act of their marital intimacy, it endows their union with a meaning and fruitfulness and beauty to which mere sense-gratifying sex acts appear crude in comparison.
This world view is elaborated at some length to show why Walker may be right that it is a powerful hurdle to his real goal, and also that religion and nature, though at first seemingly two separate hurdles, are actually closely intertwined in the way that the one invests the other with meaning and leverages it for its resonance with people who experience it first hand through marriage and child rearing. As long as this and similar world views have power, there will remain the real likelihood that even if the civil law recognizes same-sex marriage, the result will not be instant status for same-sex marriage, but rather decreased status for the civil law.
There is nothing Walker can do about this in this decision. If he can bring about the change in civil law, he will certainly in his mind, and the minds of same-sex marriage advocates, have done his job admirably for today. But by laying the foundation for identifying the real enemies of full acceptance, he prepares the record for the cases that will surely follow. What will be their targets?
Again, the record gives ample clues. Recall Walker’s breathtaking finding that there is no rational reason to prefer biological parenting at all. This is summed up most succinctly in the findings used by Walker to support his legal conclusion that same-sex parents and opposite-sex parents are of equal quality. Again, it would be one thing to acknowledge that many homosexuals could be good parents, and in specific circumstances better than a specific natural biological parent. But Walker’s finding is that “the genetic relationship between a parent and a child is not related to a child’s adjustment outcome.”40 The whole presumption of the law that a biological father or mother has certain rights because of that biological relationship is now seriously undermined. If we can treat as unhelpful, or in any event irrelevant, the biological and genetic bond between parents and children, what reasons are there for legal custody to go by default to the biological parents? Since these bonds are irrelevant, and invoking family-court notions of “best interest of the child,” how far a step is it to envision a Perryesque opinion deciding that a better, more suitable, set of parents would deserve custody of a child, especially compared with a set of biological parents that were likely to “indoctrinate” the child in “anti-egalitarian” world views? This might seem an extreme and unrealistic concern, except that there are published views of authors like Richard Dawkins, and feminist legal scholars, advancing the notion that religious upbringing is a form of “child abuse.”
Besides using a breaking of the “biological bond” in this very direct and practical way to undercut the transmission of religious world views to children, there is a more far-reaching way in which this severance would hold out the glimmer of a perhaps decisive victory for the complete obliteration of gender roles. As noted above, the differentiated and complementary gender roles attending procreation and parenting are the “inconvenient truth” that lurks in the background to stymie the complete end to gender, and consequent obliteration of any discrimination, indeed any meaningful differentiation between same-sex and opposite-sex marriage. Yet how far would this go? If the elimination of any legal “preference” for biological relationship carries such an important victory for the marriage-equality and broader homosexual-acceptance agenda, might some consider it worthwhile, to bring it about, even to make all child rearing “egalitarian”? Since biological child raising even as a default position creates the one stubborn argument for favoring opposite-sex marriage, and at the same time allows the propagation of undesirable world views, why not eliminate it entirely? Already we have seen steps toward biological parenting being treated as a commodity: rent-a-womb surrogates, all manner of artificial conception, sperm and eggs sold on eBay for their eugenic qualities. If biological reproduction is recast as a commodity, commodities, like all commercial transactions, can be controlled by the state. Welcome to Brave New World.
Of course, we would expect many voices to speak out against such a trend, but, most likely, wouldn’t they be the very voices of the same world views that have proven so troublesome? There might be some old-time liberals, people who remember where eugenics really came from, and who actually read Brave New World. For the most part, though, we would expect opposition to come from religious world views, precisely because they have the strongest views on the importance of biological parenting not only for society, but also because of its metaphysical meaning.
If the continued, cogent expression of the religious world views proved an ongoing hurdle to homosexual acceptance, how long would Walker continue to promise reassuringly that no religious group would be required to recognize marriage for same-sex couples against their religious beliefs?41 We have already seen that the cause of homosexual acceptance will not readily brake for others’ First Amendment rights. Whether it was the so-called Human Rights Commission of the City of New York trying to force the Ancient Order of Hibernians, an Irish Catholic fraternal organization, against their will, to include an Irish GLBT float in their privately organized New York St. Patrick’s Day Parade, or a majority of the same Massachusetts Supreme Judicial Court that invented same-sex marriage in Goodridge having upheld Massachusetts’ attempt to compel a Boston St. Patrick’s Day Parade to do the same, the brigades of political correctness are not gentle when it comes to the free-speech or free-exercise rights of those who would stand in the way of progress. Fortunately, in both those cases, the federal courts admirably performed their role of vindicating constitutional rights, in the latter case by a unanimous decision of the U.S. Supreme Court overruling the Massachusetts SJC.42 But just as Lamb’s research could not be “sealed” from the evolving academic political power of the pro-homosexual agenda, how long will the federal courts, coming as they do from a law-school culture that is largely controlled by the same agenda, continue to apply those principles impartially? The U.S. Supreme Court’s 5-4 decision just last June in Christian Legal Society v. Martinez43 is hardly encouraging in this regard. Once the legal framework for traditional marriage, though supported by the people and amply rational, is thrown aside by judicial fiat, the next target will be the very world views and natural order of procreation itself that stand in the way of complete social affirmation of homosexuality and the obliteration of gender.
Perry aims a dagger at the heart of marriage as we know it. Taking it at its word and applying principles of consistency and logic, it cannot help but result in the expansion of marriage until it encompasses bigamy, incest, wider groupings of association, and finally loses its meaning. As regrettable as this would be, it might be preferable to a regime that insisted on a sacred marriage based on sexual intimacy, but did so in a way that tried to obliterate any distinction based on gender. What would follow would inevitably be a gradual delinking of marriage and intimacy from biological procreation, and the substitution of technological means and commercialized surrogacy for traditional biological mother-and-father-based families. Ultimately, the temptation would arise for the state to take over the role of assigning children to suitable “parents,” since biological ties would no longer be recognized as dispositive. The likelihood of this progression of events can be reduced by recognizing the rationality and validity of traditional one-man-one-woman marriage and defending it. Stopping the dangerous logic of Perry in its tracks is the place to start, ideally by judicial reversal, if necessary by other constitutional means.
1. Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996).
2. 704 F. Supp. 2d 921 (N.D. Cal. 2010). Citations in this article to the Findings of Fact (“FF”) and opinion in Perry are to the slip opinion, which can be easily accessed at https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf.
3. As of this writing, Perry is on review in the U.S. Court of Appeals for the Ninth Circuit, with oral argument having been heard on December 6, 2010, before Circuit Judges Reinhardt, Hawkins, and N. R. Smith. In addition to the constitutional merits, the appeal involves a complex Article III standing issue related to the right of Proposition 8’s proponents, as defendant-intervenors, to maintain the appeal, in light of the refusal of California officials to defend the measure. On January 4, 2011, the Ninth Circuit panel decided that its resolution of this federal standing question required a determination of whether California law would afford defendant-intervenors such a right, and certified such question to the Supreme Court of California. The appeal was stayed pending a response. On February 16, 2011, the Supreme Court of California voted unanimously to take up the certified question, and a hearing will likely be set for late 2011. The jurisprudential aspect of this article focuses on the substantive constitutional merits of Judge Walker’s Due Process and Equal Protection conclusions, and discussion of the appeal is omitted.
4. 798 N.E.2d 941 (Mass. 2003).
5. Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn, 2008); In Re Marriage Cases, 183 P.3d 384 (Cal. 2008); Varnum v. Brien 763 N.W.2d 862 (Iowa 2009). Even in the judicial arena, though, the majority of state and federal courts to consider the issue so far have upheld the constitutionality of the traditional limitation of marriage to one man and one woman and rejected any constitutional right of same-sex couples to be married. See, e.g., Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006); Andersen v. King County, 138 P.3d 963 (Wash. 2006); Conaway v. Deane, 932 A.2d 571 (Md. 2007); Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Standhardt v. Superior Court ex. rel County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003); Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)(upholding Nebraska state constitutional amendment limiting marriage to one man and one woman against federal constitutional challenge).
6. In Re Marriage Cases, supra.
7. As noted above, as of this writing, the Maryland Senate has approved the Civil Marriage Protection Act, which would recognize same-sex marriage; consideration has moved to the Maryland House of Delegates. If this Act is approved and signed by the Governor, then six rather than five states would recognize same-sex marriage, and three rather than two would have done so without judicial compulsion.
8. In contrast to Congressional attitudes in support of the Defense of Marriage Act, Congress passed amendments to the National Defense Authorization Act, signed into law by President Obama on December 22, 2010, that repealed the so-called “Don’t Ask, Don’t Tell” policy barring homosexuals from openly serving in the U.S. Armed Forces. While some have been puzzled by a perceived inconsistency between these positions, they should not be. As discussed at length, infra, Proposition 8 supporters reject the charge that their opposition to same-sex marriage connotes some “naked desire to harm” homosexuals, and rather assert that it is the unique aspect of marriage as cementing the biological family relationship that requires it be limited to opposite-sex couples. In this light, it should not be surprising that many who oppose same-sex marriage also oppose unnecessary and invidious discrimination against homosexuals, in contexts, such as the military or commercial workplace, where gender and sexual orientation simply may not have the relevance that they do in the context of promoting the stability of biological family units. By the same token, it is farfetched to suggest, as Attorney General Eric Holder does in his public statement explaining the decision to cease defending DOMA in court, that repeal of Don’t Ask Don’t Tell somehow changes the constitutional landscape for same-sex marriage, or in any way undercuts the overwhelming evidence cited in the text that same-sex marriage has never approached the status of a “fundamental right.”
9. 388 U.S. 1 (1967).
10. 539 U.S. 558 (2003).
11. Id. At 605.
12. 381 U.S. 479 (1965).
13. 388 U.S. at 12.
14. Loving, 388 U.S. at 12, citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
15. 410 U.S. 113 (1973).
16. See, Hernandez, 7 N.Y.3d at 359.
17. Perry, slip op at 127.
18. Accord, Citizens for Equal Protection v. Bruning, 455 F.3d at 868, and cases cited therein.
19. Perry, FF 70.
20. FF 71.
21. FF 70
22. Testimony from Day 5 of Perry Trial, as reported by New York Times blog at http://bayarea.blogs.nytimes.com/2010/01/15/same-sex-marriage-case-day-5-raising-children/
23. Perry, Slip Op. at 128 (emphasis added).
24. FF 55
25. Forty-seven states, should Maryland pass the Civil Marriage Protection Act.
26. 98 U.S. 145 (1878)
27. Id. At 164.
28. 478 U.S. 186 (1986).
29. Id. at 196.
30. Lawrence, 539 U.S. at 605.
31. Perry, slip op at 110, 114.
32. FF 52, slip op at 116.
33. E.g. FF 46, citing psychologist Gregory Harek: “Among gay men, 87 percent said that they experienced no or little choice about their sexual orientation.”
34. To be sure, an unchosen sexual orientation might do much to mitigate individual responsibility for certain actions. Many unchosen genetic predispositions may make it more objectively difficult for those with such genetic makeup to conform to norms that are, on a societal basis, most conducive to the common good. To this extent, unnecessary discrimination based on such actions may be wrongful, and attacks on persons based on the predisposition itself may be rightly seen as hateful. The point here, however, is that the unchosen nature of the predisposition vel non does not remove all of its consequences from any moral analysis, nor does it require that broader considerations of the public good be ignored when society considers which activities and lifestyles to promote.
35. FF 77.
36. FF 77(c).
37. 492 U.S. 490 (1989).
38. Id. at 566-67.
40. FF 73 (emphasis added).
41. See, FF 62.
42. See, Hurley, South Boston Allied War Veterans Council v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), reversing 418 Mass. 238, 636 N.E.2d 1293; New York County Board of Ancient Order of Hibernians v. Dinkins, 814 F. Supp 358 (S.D.N.Y, 1993).
43. 561 U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010).
Since the submission of this article in early March, several developments of note have occurred.
The Civil Marriage Protection Act which was passed by the Maryland Senate, see, note 7, supra, and which would, if passed, have made Maryland the sixth state to allow same-sex marriage, fell short of expected support in the Maryland House of Delegates. On March 11, the House of Delegates leadership conceded it could not pass and withdrew the Act from the floor in a major defeat for same-sex marriage advocates in that state. As most same-sex marriage supporters had assumed House support was even greater than that in the Maryland Senate, this result was quite surprising. Analysis suggested that African-American constituencies were particularly active in raising objections to the legislation with their elected delegates. In line with Section II, supra, these constituencies rejected the comparison of laws limiting marriage to a man and a woman to pre-Loving racial discrimination in marriage laws.
In April, a move by same-sex marriage supporters in Rhode Island to pass legislation in that state, legislation that Governor Lincoln Chafee had promised to sign, stalled due to lack of support in the legislature.
As of this writing, efforts are under way in New York to pass same-sex marriage legislation, which have the strong support of Governor Andrew Cuomo. New York’s Senate rejected similar legislation in 2009.
All of these developments show that same-sex marriage continues to be a politically heated issue that is being actively engaged by the democratic process. At the same time, with same-sex marriage having been rejected every time it was considered by popular referendum, and with still only two states that have legislatively adopted same-sex marriage free of judicial compulsion, Judge Walker’s assertion that “the time has passed” for traditional notions of marriage remains as spurious as ever.
On April 25, a motion was filed in the Perry litigation to vacate Judge Walker’s original decision. The motion is based on Judge Walker’s failure to recuse himself from the case in light of the fact that, as disclosed in interviews he gave in early April following his retirement from the federal bench, he had been in a ten-year same-sex relationship, and would stand to benefit directly from his ruling, in contravention of judicial ethics rules. The motion is under consideration as of this writing.
Post Script (2) (June 30, 2011)
Since the last Post Script was written in early May, a significant development has occurred with the signing into law of a same-sex marriage bill in New York on June 24. The bill was the object of intense lobbying down to the end of the legislative session, and passed the Republican-controlled New York Senate by a vote of 33-29 after four members of the Republican majority voted with all but one of the Democratic senators to support the bill. New York becomes the sixth state to enact same-sex marriage, and the third to do so without judicial compulsion.
While New York’s action clearly constitutes a significant victory for same-sex marriage advocates, it reaffirms in many respects the inappropriateness of judicial declarations of same-sex marriage as a constitutional right. As the Court of Appeals of New York reasoned in Hernandez v. Robles, rejecting a constitutional claim, the Legislature was better placed to make the compromises needed in addressing competing values and interests. The legislative bargaining process conditioned the extension of same-sex marriage rights on certain other issues, notably securing explicit exemptions and protections for religious bodies and affiliated entities that would not recognize same-sex marriage, a bargaining process that could not have taken place (at least so overtly) in the context of constitutional litigation.
To be clear, the author views as deeply flawed the main rationales relied on by the legislative proponents of the New York same-sex marriage bill. Statements such as that of Senator Mark Grisanti, one of the two defecting Republicans who were the difference between victory and defeat for the measure, that “as a lawyer” he could not even think of any legal rationale to limit marriage to a man and a woman, show only that he hasn’t thought about it that much, including even so far as his own state’s highest court’s opinion in Hernandez, cataloguing several reasonable bases a legislature might have for limiting marriage to opposite sex couples. Grisanti’s extensive statement explaining his vote also betrays a not uncommon logical infirmity: because he was raised a Catholic and hence to believe in marriage as only between a man and a woman, and because he comes to the Senate “not only as a Catholic, but as a lawyer”, he must ergo reject the religiously-based view as an unwarranted imposition of religion. The infirmity, of course, is that the religious view may yield a result which is also adequately and independently supported by the secular policy objective of linking full marriage benefits to couples likely to produce biological offspring, as discussed at length in Section IV(i), supra, and acknowledged in Hernandez. (For a more detailed discussion of the unfortunate frequency of Grisanti’s type of flawed reasoning, see, M.J. Franck, Religion, Reason and Same-Sex Marriage, in First Things, May 2011.)
Having said all of this, however, it is clear that the New York same-sex marriage bill has one decisive thing going for it that Perry lacks: it is not a judicial usurpation. How truly “democratic” it is has been questioned even by some supporters of the result, given the now well-documented roles of a cadre of super-rich Wall Street donors and back-room deals in pressuring key Senators. Nonetheless, the action has been taken by the people’s representatives, and, unlike in Perry, the matter has not been essentially withdrawn from the democratic process. The people of New York remain in principle free to monitor this experiment in social change, and keep, refine or terminate it as conditions seem to them to warrant.
Finally, it is worth noting the obvious: the fact that gay marriage can win a razor-thin victory in one of the Nation's most liberal states, and even there only with the immense financial and political backing of a super-wealthy pro-gay agenda plutocracy, lends little support to Judge Walker's task of finding gay marriage "deeply rooted in our Nation's traditions." Indeed, as the New York Times reported the Monday after the vote, the New York victory for gay marriage will prove difficult to replicate in other states. Those states most supportive of gay marriage have already taken action, and 30 states have taken recent action to cement one-man-one-woman marriage in their state constitutions. Even gay marriage activists have conceded this in one large neighboring state, abandoning efforts to achieve a legislative victory in New Jersey and opting this week for a state court litigation strategy instead. And the passage this week of a civil union law, rather than gay marriage, in Rhode Island, with even that measure supported only with very strong exemptions for religious organizations and affiliated institutions, illustrates how the issue of same-sex unions is a novel and democratically contested one, far from the status of a fundamental right which Judge Walker would confer on it, and far more appropriately addressed by the people whose support, after all, gay marriage advocates claim to have.
* * * * *
Thomas M. Clark, a former Notes Editor of the Columbia Law Review and judicial clerk on the U.S. Court of Appeals for the D.C. Circuit, is currently a corporate counsel in Tokyo, Japan, where he lives with his wife and four children.