Thursday, May 12, 2005

Can They Do That?

A Federal District Court in Nebraska (of all places) has just struck down the state's constitutional amendment defining marriage as between a man and a women. The amendment reads as follows: "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." The justification in the 43 page opinion was a hodge-podge of constitutional clauses, including the 1st amendment, the 14th amendment, and the anti-bill of attainder clause.

Eugene Volokh delivers a fairly comprehensive dismantling of the court's reasoning. I think he makes a compelling argument. The only possible flaw is how we interpret Romer v. Evans (and Volokh himself admits that he's not quite sure how to do it). Basically, what I think this whole deal comes down to is whether or not a state is allowed enact statutory language that it cannot place in its constitution (this puts aside, for the moment, whether or not gay marriage is constitutionally mandated--I think you can make a compelling case that it is, but that's another issue and not what the court ruled on).

For those of you who don't know, Romer stuck down a Colorado Constitutional amendment which prohibited any governmental agency in the whole state from passing or enforcing laws which gave homosexuals specific protections (for example, anti-discrimination laws). Presumably, it would have perfectly acceptable (from a constitutional perspective, anyway) for the state to have written statutory language that removed homosexuality from being a protected class in any pertinent Colorado laws. What seemed to offend the Supreme Court in that case was that the language was placed in the constitution, as a blanket bar against any law that might otherwise be passed to the benefit of homosexuals. The implication seems to be that state constitutions are held to tighter scrutiny than state laws--presumably because constitutions are far less amenable to the democratic process and effectively choke off continued political debate on the issues they address. Given that, state constitutional clauses which specifically target certain classes of citizens for legal disabilities are highly suspect, if not completely forbidden.

It is no accident that our constitution (with the not-so-minor exception of slavery) contains no language restricting the rights of specific groups of citizens, only defenses of them. Furthermore, the constitutional tradition has been virtually without pause one of rights expansion, moving from the bill of rights to the civil rights amendments. This is what Justice Harlan meant when he said "The constitution neither knows nor tolerates classes amongst citizens" (Plessy v. Ferguson (dissenting)). To be sure, the legislature makes classes amongst citizens all the time, and the court's have standards by which to evaluate them (rational basis, heightened review, strict scrutiny). But somehow placing those same differentiations into the constitution seems to be an abrogation of our democratic spirit, not its affirmation. The heart of a democratic system, above all else, is that it insures a political marketplace where all can plead their case. For the most part, the constitution should not be a trump card between competing value system but rather provide the baselines from which political debate can proceed. These principles include free speech, freedom of the press, and some measure of equality under the law. Of course, we can amend the federal constitution to say whatever we want--from excluding gays to mandating a free pie to every citizen to an immediate genocide. However, state constitutions are subordinate to the federal, and I think the very least the Guarantee Clause requires of the states is that their political processes remain open and recognizably democratic.

There are other problems with the amendment. The most glaring is that it is fatally vague. The second clause reads as follows: "The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." "Similar"? What the hell does that mean? The phrase could justify anything. From my perspective, the only way same-sex marriage restrictions might possibly be valid is if you can contract around them, that is, if all the relational rights (IE, visitation, second-parent adoption, inheritance, etc) can be granted by one gay partner to another by way of contract. However, to my eye that sort of contractual relationship is quite "similar" to a marriage (indeed, that is what it is blatantly trying to imitate). And the language of the amendment would seem to prohibit the state court's from enforcing those contracts (see Shelley v. Kraemer). At that point, the amendment seems almost perfectly analogous to the one in Romer; it utterly closes off any possibility for any legal protection for gays and gays alone--even via contract.

Other folks, such as Nixguy, are talking about the political implications of the ruling. He's probably right when he says that
"Leaving aside the rightness or wrongness, it can only be said that this issue is a godsend to the Republican Party and is killing the Democrats. One cannot consider that the Democrats are in full retreat across all aspects of American Democracy without considering that the issue of judges legislating from the bench has something to do with it."
Indeed, the GOP has done a brilliant job in exploiting voters' fears and prejudices against particular court cases affirming the rights of unpopular minorities (and given that many of the judges ruling in these cases are Republicans, the way they've managed to make it into a right/left issue is nothing short of remarkable). Personally, I find this to be morally appalling:
[A]fter the election, undoubtedly aided by the 11 states passing anti-gay marriage referendums, I found that the issue that most arose my ire was gay rights. Part of it was due to Andrew Sullivan's coverage of the reaction in the gay community. It wasn't resignation, or disappointment, or even anger. It was fear. They were genuinely afraid of the message being sent by the rest of the country. It was loud, resounding, and universal: We don't want you. You're not welcome here. You aren't part of the American community. That message seriously disturbs me. When America starts telling its vulnerable minorities that they aren't welcome, starts passing laws that seek to relegate disliked groups to legal, moral, and political inferiority, we have a problem. And I do believe that this problem ranks right with the war on terror as one of the great moral challenges of our times.

If the baseline for continued Democratic legitimacy in the 21st century is support for the war on terror, then the baseline for Republican moral legitimacy is support for gay rights. Unfortunately, I see far fewer Republicans rising to this challenge than Democrat's rising to theirs.

Just as some Democrats unethically tried to exploit anti-war sentiment to gain cheap electoral victories (at the expense of our national security), some (many) Republicans succeeded in exploiting America's rampant homophobia to push themselves into office (at the expense of the dignity and humanity of our fellow citizens). Politically, it was quite shrewd. However, part of being a responsible political party means not seizing every opportunity to demonize society's outcast for quick political gain. In doing so, the GOP forfeited any claim to moral legitimacy that it might have earned by its supposed "leadership" in the war on terror.

But I digress. The real problem with this whole debate is that the GOP decided it wants to substitute mob rule for constitutional rule. As Nixguy so helpfully demonstrates:
Last time I checked we lived in a Democracy and the way you win is by convincing 51% of the people that your view is the correct one. That is not how these people operate though. Their strategy is to get people sympathetic to their views in positions of power and then pass the laws they want as kings.

Perhaps Nixguy might want to check again. I can get 51, 60, or 90% of the people to tell Nixguy he can't speak anymore, but in America, he can quite legitimately tell me to go to hell. Why? Because Nixguy has certain rights, guaranteed by the constitution, and they are not subjected to a vote and depend on the outcome of no election (to paraphrase Justice Jackson). More pertinently, from our standpoint, 51% of the people cannot vote to deprive the vote of the other 49%. Such an action would not be "democratic" in any sense of the term, even though it garnered a majority. Put another way, the norms that enable democracy to function cannot themselves be subject to democratic elections. One can dispute whether or not the right to marry (or more broadly, intimate association, equality under the law, and/or privacy) is one of those (though the legal matter seems well-settled, see Loving v. Virginia). But when the judiciary interprets our constitution as mandating an equal dignity and protection for gay citizens as an essential part of a democratic system, I hardly think they are abdicating their legal responsibilities.

UPDATE: Amos Anon jumps into the fray, and then he does it again! The second post, moreover, seems to echo my belief that the constitution should consist of mostly procedural safeguards.

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