First Reactions on Perry

Here are my hasty reactions to a decision I’ve only partly read. I’m distracted by personal matters tonight, but I’ll probably update as the evening goes on.

One big loser in all this is David Blankenhorn. He appears richly to deserve it. Judge Walker rightly faulted him for likening committed same-sex couples’ parenting outcomes to those of single-parent families, and saying that because single-parent families show inferior outcomes, same-sex couples obviously do too. This is something I’ve complained about in the past, and it’s one of the many dirty tricks of the anti-SSM side.

Another is to say that because a given group shows inferior parenting outcomes, we must prohibit marriage to the entire group. If this premise were true, we would be forced to prohibit marriage — and a fortiori procreation — to the poor, which is obviously an absurd outcome. This too is at least hinted at so far — group outcomes are a lousy reason to deny individual due process.

One thing that becomes very, very clear in reading this decision is the utterly pathetic case the defense put up. Surely they could have done better. Because the evidentiary phase was essentially a debate between experts Nancy Cott and David Blankenhorn, it wasn’t even close. On appeal, new evidence won’t be allowed. This ship is going to sail to the supreme court with one side seriously listing.

I’ll have more in a while, but so far the decision is looking very, very good.

Update: Here’s one especially good bit:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.

Sounds like he read my bit about Hayek and immanent critique from earlier today. We’ve seen a refinement of the institution of marriage in terms of a cherished ideal — equality before the law. Well done.

Update II: Dale Carpenter is worried about the decision’s “judicial maximalism.” I’d call it hard bargaining, at the very least. But I do wonder, if either strict scrutiny or rational basis review were enough on their own, then one or the other must be mere dicta — unnecessary and without legal force — no? And whenever you find in terms of strict scrutiny, the rational basis review is unnecessary, because it’s already flunked on that test. Someone a bit better trained in the law might be able to tell me what I’m missing here, but I don’t think I’ve missed anything I’m aware of.

Update III: Here’s another bit of thinking from the opposition that just doesn’t hold water:

“Today’s ruling is clearly a disappointment. The judge’s invalidation of the votes of over seven million Californians violates binding legal precedent and short-circuits the democratic process.”

Unless you’re prepared to say that no referendum can ever be overturned by a judge, you’ll need to offer more than that. The United States is not and never has been a pure democracy, nor is our government one without limits. An important limit to government is fair play, which is what judges are there for. (Ht: Box Turtle Bulletin.)

Update IV: I know I’m replying more to replies than to the decision itself, but… to Orin Kerr: If permitting same-sex marriage is in itself too rapid a social change, how does one ever achieve same-sex marriage? Consider that marriage-lite or civil unions are both either invidious distinctions — separate but equal — or themselves too-rapid social change, and the question seems hard to answer. At some point, someone has to bite the bullet. It seems to me that on these grounds it might be inappropriate to enact same-sex marriage across the entire country, sure, but if so, Obamacare falls to the same reasoning, as does Medicare Part D, No Child Left Behind, Social Security privatization, school choice, a human life amendment, and plenty of other conservative (or liberal) desiderata.

We have states to serve as laboratories of social experiment, don’t we? If California is too large a laboratory — and perhaps it is — then the remedy is to break it up into two or more states, not to rule out same-sex marriage or any other non-procedural goal.

Please do be so kind as to share this post.
Share

55 thoughts on “First Reactions on Perry

  1. And if the voters come out in November, California could be a state with: same sex marriage, legal pot-smoking, and a Governor who killed predators. What state can top that?

    (Maybe Nevada)

      Quote  Link

    Report

  2. I hope that this will be the last of it.

    I rather suspect that they’ll figure out a way to make the first Circuit Court ruling that DOMA is unconstitutional happen around August/September of 2012.

      Quote  Link

    Report

  3. “Gender….restrictions were never part of the historical core of the institution of marriage.”

    I get the ‘marriage has evolved’ line of argument, but stating that gender was never part of the historical (as opposed to the modern) core conception of marriage is a pretty obvious misstatement, yes? I mean, it’s not like fifty years ago every dictionary in the English-speaking world wouldn’t have defined marriage in terms of gender.

      Quote  Link

    Report

      • @Jason Kuznicki, I’m afraid I still think that’s bogus as a historical claim about the institution of marriage – at least in Western civilization. History isn’t dispositive, of course. But I can’t imagine that this passage won’t be skewered endlessly by SSM opponents. Imo a much stronger argument is that we as a society have evolved past our previous prejudices and now recognize love, not biology, determines what constitutes marriage. The latter argument I can accept as logically consistent and somewhat persuasive; the historical claim is just intellectually dishonest if by ‘core’ we mean ‘core as understood by people throughout history’.

          Quote  Link

        Report

        • @John Henry,

          I still wouldn’t be so sure. Sex — or its total absence — was considered irrelevant to marriage in some high-profile cases as long ago as the nineteenth century. And what courts cared about was never so much the sex lives of the couple as the disposition of property and children. Adultery, impotence, or bigamy often could be grounds for divorce, in those states that granted divorce at all, but that was at the individual discretion of the couples involved, not the states.

            Quote  Link

          Report

          • @Jason Kuznicki, Ok…but if you asked the average person in 14th, 15th, 16th, 17th, 18th, 19th, early 20th centuries whether gender was a core part of marriage, I think the answer would be ‘yes’. I mean, for, what, roughly half of the United States today, the answer is still ‘yes’. I don’t really see how, without coming up with an elaborately selective and forced definition of ‘core’, you could claim otherwise.

              Quote  Link

            Report

            • @John Henry,

              If you asked people in the 14th, 15th, 16th, 17th, 18th, 19th, or early 20th centuries what “gender” was, you’d probably get — if you were lucky — the answer “it’s a part of grammar.”

              If you asked them whether sex was a part of marriage, they would probably tell you “sure, for the first few years.” After that, it’s property and household.

                Quote  Link

              Report

            • @John Henry, I don’t know how to take your claim seriously – do you really think recognition of the word ‘gender’ is the same as understanding the underlying concept? I’m fairly confident the fact of gender – if not the word – has been consistently recognized. As to what divorce courts cared about, I am not sure how that’s relevant. I am certain most divorce courts in the distant past (and occasionally even today) were concerned with dividing up property, rather than philosophizing on the fact that every couple that was divorcing consisted of one man and one woman. I am baffled that you take this as an argument that gender wasn’t considered part of the core understanding of marriage. With that, I’ll leave off – I am sure you are excited about the ruling, and it’s bad form to be so pedantic when someone is trying to enjoy something.

                Quote  Link

              Report

            • @John Henry,

              Oh no, it’s not pedantry. It’s more important to get the facts right than it is to celebrate a bunch of false facts, if that’s what we’re doing.

              What I mean to say is rather subtle, I admit. I mean that gender is a relatively new thing in our understanding. I take gender to mean the performance of male and female roles, not the existence of sexual differences. Mannish women and effeminate men were always allowed to marry, and while differences in genitalia were often considered in marriage qualifications, they were neither the purpose for which marriage was instituted nor necessarily a reason to dissolve a marriage so long as both partners were willing to continue it. Consent did far more to make a marriage, in any era, than genital conformity.

                Quote  Link

              Report

            • @John Henry, It seems to me we agree that most people now have a different conception about the importance of eros in marriage than was true historically. However, I don’t think that advances the ball much, if at all, in demonstrating that different genders (and the accompanying capacity to have children) weren’t understood to be part of the core of marriage. Consent, of course, was firmly insisted upon – particularly by ecclesiastical authorities – as a sine qua non for a valid marriage; but this was all against a backdrop that assumed marriage could only be between a man and a woman. We may have valid reasons to revise that view today, but I don’t think we have valid reasons to mis-characterize the historical record (and, deliberately or not, I think that the claim in the judicial opinion above is a mis-characterization of historical fact).

                Quote  Link

              Report

            • @John Henry, Saying that gender wasn’t part of the historical core just begs what that means. Jason says the historical core amounts to the purpose for which the institution was promulgated; John says it also comprises the restrictions in practice that characterized it. I tend to agree with Jason, but I’m not so confident in it that I would say I could call that a “fact,” though of course Walker made that finding not based on all evidence that he can find in the world, but rather what was presented at trial. Al the same, I (in my thoroughly inexpert opinion) do tend to think a number of the facts Judge Walker found are going to be met with more skepticism at appeal than findings of fact, from what I’m reading, I guess typically are. It just seems to me that it is in the nature of “deference” that in situations where deference is normally expected (especially from a higher authority), it doesn’t usually produce reliable outcomes to both rely on and test the limits of that expected deference. (And to be fair, I don’t know just how much Judge Walker does that here relative to the broader context, but my impression is that he indeed doing it somewhat. And on an issue of this profile, it seems likely a backlash would be more likely than on others. At the same time, I certainly see where it was perhaps his best option, since all of his arguments on the law are apparently certain to be reviewed.)

                Quote  Link

              Report

            • @John Henry, Jason says the historical core amounts to the purpose for which the institution was promulgated; John says it also comprises the restrictions in practice that characterized it.

              Oye. The distinction is not between the restrictions and the purposes. It is that the restrictions themselves are a strong and remarkably consistent statement about the purposes. Marriage was promulgated for multiple purposes, but one of those purposes was genital sexual complementarity and (what frequently accompanies such complementarity) children. It’s a fairly remarkable fact that gay marriage wasn’t an issue until the late 20th century; that fact requires an explanation beyond assertions that marriage was really only about property and consent, or that ‘gender’ wasn’t understood as a concept. If that was the explanation, then the absence of same sex marriage would be an amazing, haphazard coincidence; I think that’s ridiculous, personally. The reason why marriage was limited between men and women is because people actually thought that was one of the core requirements of marriage; it wasn’t an accident. Obviously, people no longer view different genders as a core requirement of marriage, but it is only common sense to acknowledge this was a change.

                Quote  Link

              Report

            • @John Henry, I understand what you are saying, but what you are saying is just what Jason is contesting. i didn’t mean to strongly take sides. I just tend to agree with Jason, because a) there are counterexamples, and b) these purposes, with the one exception of natural procreation using the sperm of the man and the ovum and womb of the woman marrying are still served by SSM, and there has always been adoption. So there is an argument that any limitation in the past was itself always discriminatory, not essential to the ourpose of the institution.

              But again, I’m not dismssing you argument entirely, because you can still say that, whatever their justifications, the restrictions were not coincidental to the institution, but instead characterize it. I don’t have a definite view on the question. My point was that taking things like that as fact has what I expect to be a fairly high potential blowback factor in terms of the usual expectation of deference to findings of fact at appeal, with this Supreme Court.

                Quote  Link

              Report

  4. ““Today’s ruling is clearly a disappointment. The judge’s invalidation of the votes of over seven million Californians violates binding legal precedent and short-circuits the democratic process.”

    Crikey. This argument gets pulled out every single time a statute or piece of legislation or referendum gets overturned. That fact alone basically disproves this line of attack. But it’d be nice if proponents of an overturned law at some point just didn’t even bother with it and instead tried to actually put forward something original that actually requires people to consider it seriously.

      Quote  Link

    Report

    • @Mark Thompson, It’s not a legal, policy, or moral argument, it’s a political ation; they do every time because it is effective in the ends they have for it; and they really aren’t trying to prove or make any other argument beyond. The arguments in court (where they got pummeled) are what matters – what gets said on the courthouse steps is pure politics.

        Quote  Link

      Report

      • @Michael Drew, Yeah, I know. It’s just that it’s a political argument that frankly bores me to tears because it’s so predictable and substance-free. It would surprise me if it has any effect on what anyone thinks (even in terms of further inflaming the passions of those who agree with the speaker). It’s a Mad Libs for the defenders of unconstitutional laws set.

          Quote  Link

        Report

  5. I’m still amazed that what has been constitutional for over 200 years in this country can be magically ruled unconstitutional by our robed masters. Of course this has always been about results. Neither side really cares about means so long as they get their way. The silliness continues.

      Quote  Link

    Report

        • @M.Z.,

          Predictability in the long term is only maintained by the ability to adapt in the short term. Given that no one’s current marriage is in any sense changed by Perry, I find even the short-term unpredictability here to be minimal.

            Quote  Link

          Report

        • @M.Z.,

          Well 200 years ago was 1810. Chances are it would have been constitutional back then. Of course so was slavery. Hey lookie there 200 years ago married women didn’t even have property rights. Whoa it looks like someone radically change the countries understanding of marriage before, seems to have turned out pretty good though. They also couldn’t vote.

          Equal protection and due process did not exist until the 14th amendment which was ratified in 1868. This amendment didn’t get around to doing the heavy lifting in ending segregation until 1954.
          Then the 14th managed to do even more heavy lifting in loving v. virginia(1967).

          And would you believe that this overturned a precedent set in Pace v. Alabama (1883)

          So it appears that sometimes rights are a long time in coming.

          I will leave you with a few choice bits of information and a wikipedia link.

          “Ignoring United States Supreme Court precedent, Carrico cited as authority the Virginia Supreme Court’s own decision in Naim v. Naim (1955), also arguing that the case at hand was not a violation of the Fourteenth Amendment Equal Protection Clause because both the white and the non-white spouse were punished equally for the crime of miscegenation, an argument similar to that made by the United States Supreme Court in 1883 in Pace v. Alabama.”

          “Prior to Loving v. Virginia, there were several cases on the subject of race-mixing. In Pace v. Alabama (1883), the Supreme Court ruled that the conviction of an Alabama couple for interracial sex, affirmed on appeal by the Alabama Supreme Court, did not violate the Fourteenth Amendment. Interracial extramarital sex was deemed a felony, whereas extramarital sex (“adultery or fornication”) was only a misdemeanor. On appeal, the United States Supreme Court ruled that the criminalization of interracial sex was not a violation of the equal protection clause because whites and non-whites were punished in equal measure for the offense of engaging in interracial sex. The court did not need to affirm the constitutionality of the ban on interracial marriage that was also part of Alabama’s anti-miscegenation law, since the plaintiff, Mr. Pace, had chosen not to appeal that section of the law. After Pace v. Alabama, the constitutionality of anti-miscegenation laws banning marriage and sex between whites and non-whites remained unchallenged until the 1920s.”

          So I offer my condolences to you and your new found feelings of oppression. Good luck finding a new country more suitable to your freedom to restrict the rights of others. I hear Iran is nice this time of year.

            Quote  Link

          Report

        • @M.Z.,

          One consistent hallmark going back to the Founding era of this country is that judges typically struck down laws that were aimed to benefit or burden one class of individuals at the expense or to the benefit of everyone else. Howard Gillman’s book The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence covers this in detail.

          This also applies to modern 14th Amendment cases as well from the Warren Court cases to cases that addressed laws that were passed with only animus towards gays in mind (i.e Romer v Evans and Lawrence v Texas).

          Of course, that’s not the consistence you seem to have in mind. Maybe Buck v Bell is more up your alley.

            Quote  Link

          Report

  6. M.Z.,

    So your argument is that discrimination is legitimate if we continue it long enough?

    My wife and I were discussing the case last night. Neither of us can figure out any way in which banning same-sex marriage protects our opposite-sex marriage, or on what legal grounds a government can deny homosexuals the right that she and I exercised–the right to marry one’s beloved.

      Quote  Link

    Report

  7. Bob,

    I would say that the above statement is accurate. The doctrine of incorporation has its roots in the debates that took place during the drafting and ratification process. It’s no secret that people knew of the Barron ruling and were looking to remedy that.

    Personally, I think the PorI and Due Process Clauses cover greater ground than the enumerated rights in the Bill of Rights, which is all incorporation really covers (only recently has the 2nd Amendment been brought into the fold), but that’s a whole other discussion.

      Quote  Link

    Report

    • @Dave, I’m lost.

      “The doctrine of incorporation has its roots in the debates that took place during the drafting and ratification process.” Ratification of what? The Constitution? Bill of Rights?

      “It’s no secret that people knew of the Barron ruling and were looking to remedy that.” Who are these “people,” (post 1833) and what are they attempting to “remedy?”

        Quote  Link

      Report

Leave a Reply

Your email address will not be published. Required fields are marked *