My thoughts, succinctly, on California Proposition 8

Civil marriage isn’t a right — not for anyone; it’s a privilege. If the sovereign determines that it is in its best interest to permit any or all sorts of marriage, or to proscribe any or all, it has that right. Whether or not I like it, our nation is, ostensibly, one wherein power lies, ultimately, with the people. In numerous referendum cases, the Ohio Supreme Court relied on just this notion, recognizing that the people being sovereign, if they wish to reclaim some legislative power from their delegates, then this is their prerogative. That’s how things worked in California, and Proposition 8, insofar as it is an exercise of legislative power belonging to the people, is a good thing, whether or not I agree with, or even care about, the decision. To proclaim that “civil marriage is a civil right” is dishonestly to muddle a very clear-cut issue: It ain’t a right.

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11 Responses

  1. You’re right. Civil marriage is not a civil right, and civil unions have all the privileges of marriage in California already. So what’s all the fuss?

    I’ve been collecting pictures of these disagreeing faces during the protests, including the defacing of the LA Temple. The pictures generally portrayed in the news are tame in comparison, even though all these are out there…they’re not widely circulated.

    http://beetlebabee.wordpress.com/2008/11/06/pride-predjudice-prop8-rage/

    We all had the chance to vote. I’m glad I did, but now to see the side which claimed tolerance and love participate in this kind of bigotry is pretty sobering. The mask just fell off.

  2. Marriage may or may not be a right. But the fact that it has endured as an institution for millennia across all cultures and religions strongly indicates something fundamentally human about “love & marriage”. Civil marriage may be a relatively new phenomenon, but has a society ever denied its entire population the ability to marry? Also, you might be interested in Article 16 of the Universal Declaration of Human Rights.

    Also, you fail to acknowledge that there is more to American law than majority rule. The Constitution provides several safeguards to protect minorities. Even ignoring the ambiguous 9th Amendment, denying homosexuals the right to marry seems an obvious violation of equal protection. After all, the marriage right, in America, is not about the right simply to “be married”, but all the various legal protections that accompany marriage. What is the rational basis for denying an entire group of consenting adults these legal protections (bearing in mind that intent or ability to reproduce is not a requirement for marriage)?

  3. Mark,

    Thanks for your thoughts.

    1. I have no interest in considering the Universal Declaration of Human Rights. Regardless of the United States’ being party to it, I don’t recognize it as having jurisdiction superior to that of the United States Constitution and the decisions of the United States government, acting on behalf of the people. Even if we allow for Article 16’s relevance, it’s language is, I believe, ambiguous. One can read “Men and women [ . . . ] have the right to marry and to found a family” so as to believe that, particularly in the light of absence of any reference to sexual orientation, it means “Men and women [ . . . ] have the right to marry women and men and to found a traditional family.” You can certainly make a cogent defense of the article’s being read in a way that allows for social changes vis–à-vis homosexuality and the acceptance thereof, but I’m free to disagree.

    2. “But the fact that it has endured as an institution for millennia across all cultures and religions strongly indicates something fundamentally human about “love & marriage”.

    Well, yes, it has — heterosexual marriage has. And if Hobbes is right, being at war if fundamentally human; that doesn’t make it right. I realize that this isn’t a particularly strong argument, but I’m not convinced that yours is, either.

    3. You’re quite right to call me out for taking an all too democratic perspective; I recognize, and am thankful for, safeguards against the tyranny of the majority. However, I cannot agree with your assertion that “denying homosexuals the right to marry seems an obvious violation of equal protection.” I’ve already noted that I don’t believe that it is a right. If it is, then you’re right; but if marriage, as I contend, is a privilege, then there’s no equal protection to be violated. if you’re right, then I’m on board with an Equal Protection Clause challenge. But so long as marriage is deemed to be a privilege (regardless of the legal protections), which the law seems to suggest — we must obtain marriage licenses and be of a certain age; we cannot marry people who are closely related to us –, I think that majority rule more than suffices to permit or to prohibit gay marriage.

  4. Who said the Declaration of Human Rights has jurisdiction over the Constitution? But it does show that the global community, including the US, considers marriage a right.

    It has been for heterosexual couples, but why not change it? Compare it to the vote: Marriage, like the vote, is a good thing. It was a good thing even when denied to certain classes of people, but it’s better when everyone can participate. We have universal franchise and interracial marriage, so why not gay marriage?

    Under equal protection, it doesn’t matter whether marriage is a right or privilege. The federal government (and states) cannot expand or restrict the freedom of a class of people unless the classification is reasonably related to a legitimate state interest. So, for instance, the legislature can require that all vehicles weighing over 6 tons must have anti-lock brakes, but it cannot require that all red and blue vehicles must do the same. What is the legitimate state interest in denying marriage only to homosexuals?

  5. I apologize: I didn’t mean to suggest that you, or anyone, had claimed that the UDHR supersedes the Constitution, although I suspect that we could find a few Americans who believe just as much. I simply meant that if the Constitution says nothing about issue Y and the UDHR, or document X, calls it a right, that document X says something means nothing to me, even if the United States were a signatory.

    Even if, as you contend, the United States, by being party to the UDHR, considers (or at least considered under the Roosevelts and Truman), again, the Constitution, rather than the UDHR, is the law of the land, and it is conspicuously free of any discussion of marriage — rights, privileges, or regulations. Perhaps it is problematic that such lack of consistency exists, and perhaps it ought to be resolved, but so long as the inconsistency prevails, so to must the absence of language in the law of the land.

    Again, the language in Article 16 is sufficiently vague as to make difficult defending the claim that the UDHR explicitly promotes this viewpoint vis-à-vis gay marriage.

    Moreover, this is a declaration of human rights. The language, though conveying a very fundamental thing, at the same time adds to the complexity. These rights are “human rights” (however we might define them); they are not, though, civil rights, as defined by the document. They might be so additionally, but this is not promoted expressly by the text.

    I may have a human right “to manifest [my] religion or belief in teaching, practice, worship and observance”, but that doesn’t mean that I have the civil right to smoke peyote.

    “It has been for heterosexual couples, but why not change it? Compare it to the vote: Marriage, like the vote, is a good thing. It was a good thing even when denied to certain classes of people, but it’s better when everyone can participate. We have universal franchise and interracial marriage, so why not gay marriage?”

    Well, first, I’m going to have to disagree with the broad statement that the vote is, necessarily, a good thing. More important though, why is marriage a good thing? Is what makes it a good thing important enough to justify extending the right to homosexuals? Does a reasonable relationship or essential nexus exist to justify extending the privilege of marriage — making it a right — simply because it’s a good thing?

    “Under equal protection, it doesn’t matter whether marriage is a right or privilege. The federal government (and states) cannot expand or restrict the freedom of a class of people unless the classification is reasonably related to a legitimate state interest.”

    I have to disagree with this interpretation. I admit that I’m not enough of a Constitutional scholar that I’ve kept up with EPC decisions fastidiously, but I know that most civil rights legislation in the last two-plus decades has occurred under the auspices of the broader commerce clause. What I can say about the EPC clause, itself, as in the text of the Fourteenth Amendment, is that it does not protect a gay person’s purported right to marry:

    “nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”

    If the law in a State doesn’t expressly permit gay marriage, I don’t see how Equal Protection helps the gay marriage cause here. To say that the EPC, at least from a strict constructionist perspective (Even harder, I suspect, from an originalist reading of the Constitution.), is relevant is to reframe it not as Equal Protection of the laws but rewriting of the laws to create equality.

    “What is the legitimate state interest in denying marriage only to homosexuals?”

    I have no idea; thus my general disinterest in the campaigns for and against gay marriage qua social issue. (I am, I think I’ve elucidated, concerned with it insofar as it is a Constitutional issue.)

  6. You may want to reread the Supremacy Clause. The Constitution may be the most supreme law of the land, but it is not the only supreme law of the land.

    It’s important to remember that the result and benefit of marriage is not just that society recognizes a couple as married, but also that the government grants legal benefits and protections to the couple. It is plainly more than a designation of marital status.

    The Supreme Court does not need the Commerce Clause to invalidate state legislation that denies equal protection of its laws. Equal Protection and Due Process apply directly to the states, and a state may not deny legal protections (in this case, those granted by marriage) to a class of individuals (homosexuals) unless that classification is reasonably related to a legitimate state interest.

    So, unless the denial of the benefits and protections and marriage only to homosexuals bears a reasonable relation to a legitimate state interest, the denial is unconstitutional.

    If there is no legitimate state interest, how can we support the exclusion of marital protections to this class of people?

  7. Mark, I apologize: I have a lot on my plate today, so I don’t have the time to respond thoroughly yet.

    I do want to make one quick comment regarding your suggesting that I reread Supremacy Clause, though.

    The UDHR may be a part of international law and a fundamental document of the UN, but it is not a treaty. Ergo, it lacks standing as part of the supreme Law of the land pursuant to Article VI, Clause 2. Or so it seems to me.

    More later, I promise. I’ve enjoyed this conversation.

  8. No worries.

    My only point re: the Supremacy Clause is that this kind of inquiry doesn’t end with the Constitution, although you’re right that the UDHR is not a treaty.

    It might be a useful guide, though, for navigating the great question mark that is the Ninth Amendment, shedding a certain light upon those rights Americans and the global community considers fundamental.

    Another quick note on the peyote reference: Federal law, and many state laws, do provide an exemption for Native American religious use of peyote. But it is vital that the general ban on peyote reasonably serves the legitimate state interest in preventing the widespread use and abuse of psychoactive drugs. The Native American religious exception is also reasonable, given that the use of peyote has a long connection, culturally and spiritually, only with Native American religious tradition.

    Again: What state interest legitimately confers marriage benefits and protections to heterosexuals, but denies them to homosexuals? My position is that the interest is no more substantial than the one which moved certain states to deny marriage benefits and protections to interracial couples, and that the classification therefore denies homosexual couples equal protection of the laws.

  9. I should have been clearer and more diligent in my reference to Smith; you’re quite right in your rejoinder.

    You make a fair point about the potential usefulness of the UDHR w/r/t the Ninth Amendment; however, I’m not sure how comfortable I am with rooting legislation or jurisprudence on what the global, rather than American, community considers to be fundamental.

    I’m not sure that any legitimate state interest exists in conferring benefits on heterosexuals and denying them to homosexuals. However, I remain unconvinced — and probably, I suspect, shall — that equal protection is relevant if we don’t first establish that marriage is a right, rather than a privilege. In theory, I think it certainly remains viewed as a privilege; the practical, general understanding, though, is much hazier, leaning, I think, toward right.

    Here’s a post on the subject at the GW Patriot‘s web-log: http://thegwpatriot.blogspot.com/2008/11/everyone-is-wrong-about-gay-marriage.html

  10. No need to establish that marriage is a right. THAT is irrelevant to the equal protection question (you’ll notice no mention of “rights” in the Equal Protection Clause, but you do find “privileges”).

    For instance, it would be unconstitutional for a state to decide that women, simply because they are women, can’t drive cars. Driving is a privilege, not a right, but once the state grants the privilege, it may not then deny it to a group without some legitimate reason or overriding state interest.

    This is because everyone has a right to equal protection of the laws. Equality before the law. By outlawing gay marriage, gay couples are denied the protections granted to straight couples. Thus, the law treats the relationships differently, but with no coherent justification. The regulations mentioned in the blog article you provided are all supported by legitimate state interests. That is not the case here.

  11. I’m not quite ready to concede, but you make a pretty damn good point about the use of “privileges”, rather than “rights” in the EPC. Touché, sir.

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