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Thursday, August 5, 2010

Deconstructing Marriage

Yesterday I made the point that Chief US District Judge Vaughn Walker, who declared California Prop. 8 to violate the U.S. Constitution, was trying a bit too hard to insulate his decison on appeal by engaging in fact finding and credibility determinations on what essentially are legal issues.

A similar view from Orin Kerr, writing at The Volokh Conspiracy:

The question is, how much will those factual findings matter on appeal?

If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize ... that ... Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

The fact finding sought to establish that there is no legitimate societal difference between traditional marriage and gay marriage. In doing so, the Judge examined individual aspects of a marriage, and based on the testimony he credited, determined that there were no substantial differences, hence, no legitimate state interest in maintaining a distinction.

These fact findings have heartened people like Dahlia Lithwick who writes:
It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work.
There is a certain lack of reality to Judge Walker's fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society.

The problem for supporters of the decision is that it is doubtful the majority of Justices on the U.S. Supreme Court will engage in such a deconstructionist approach.

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  1. First, let’s start with what I thought was the lamest part of the ruling: there is a fundamental right to marry (regardless of gender of the other). I put the second part in parenthesis, because the first part is the really laughable part. Um, no, there is no fundamental right to marry. I am not a fan of proposals to get the states out of the marriage business altogether, but if the libertarians who propose this got their way, nothing in the constitution would stop them from refusing to recognize any marriage at all.

    Second, yeah, those “facts” were pretty stunning. Like he declared that gay marriage will not harm straight marriage. Um, that is an opinion, not a fact. Now the judge can reasonably say this, depending on what the evidence showed:

    1) The brief period in Cali, in which gay marriage was legal, did not appreciably weaken straight marriage.

    2) Straight marriage has not been weakened in states where gay marriage has been legal.

    3) there is no evidence that the long term effects of gay marriage will include a weakening of straight marriage.

    But you cannot predict the future and claim it is a fact.

    Likewise he states that being gay is definitely not a choice. And you can’t convince a gay person not to be gay. Look at page 74.

    So apparently as a matter of law, bisexuality doesn’t exist.

    Heck, not just that, but as a matter of science.

    I think this is a good time to bring up a simple point. The judge should not have sat in the case at all. You and I both know that the code of judicial code says that a judge should step aside when their impartiality can reasonably be questioned. You don’t have to say for certain he is biased, just that there would be a question.

    So the real headline would be this. “Gay Judge rules that there is a constitutional right to gay marriage.” Is it reasonable to question his impartiality?

    A lot of people dismissed that concern, but look, the judge himself said it. This law denied to a large class of people the ability to marry anyone they are likely to want to marry. This discrimination operated as much on the judge himself as on the plaintiffs, and I don’t see how it could ever be unreasonable to question whether he can be impartial.

    I mean let me personalize the issue. I am white and my wife is not. Do you think I could ever be neutral if I was called on to determine the legality of interracial marriage? I think I could, but I would never say to anyone it was unreasonable to question my impartiality on the subject. I mean, heck, technically I am questioning my own impartiality by saying I only think I could be neutral.

    So on the theoretical level cast doubt on his fitness to serve has been cast. Then read back on my initial points. The claim that the states have to recognize any marriage at all is laughable on its face. The claim that a prediction of the future is a fact is laughable. The claim that being gay is definitely not a choice is laughable. And that is really the tip of the iceberg on this POS ruling. Now when a person whose impartiality is reasonably questioned puts out a highly questionable ruling, isn’t it fair to wonder if the reason why the ruling stinks is because he actually was non impartial.

    He shouldn’t have sat on this case, period.

  2. Well whether or not Kagan is on the panel when the SCOTUS hears it, should make no difference. In her hearings she said she saw no constitutional right to single sex marriage.

    Oh, you say in her hearings Sotomayor said she supported the argument that the 2d amendment permitted citizens to have guns and then months later didn't?

  3. Why would a straight judge be perceived as less biased than a gay judge in ruling on the constitutionality of gay marriage?

  4. "in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society."

    I hate this argument. Marriage has been an institution historically in flux. In medieval times, it was NOT an institution of love, but used by the elite for political and business purposes (e.g., King of X-land marries his daughter to the King of Y-land to firm up a treaty). This was the norm for commoners, too, let's say if Family 1 wanted help with their farm from Family 2...they'd marry someone off.

    The Church at that time said that "love" was not the primary rationale for marriage (though its existence in marriage was "admirable")

    During that time, private citizens were married if they solely said so (no proof or ceremony or legality required).

    "Marriage for love" gained popularity as a notion in the 19th century. There were many, though, trying to stop "marriage by fascination" and instead arguing for a return to marriage as a negotiation between two families.

    And it was only until the late 19th century did states start to get in the "marriage" business.

    (and no need to get into the argument of interracial marriage now, we all know the history of that).

    So can we please cut this nonsense of how marriage is an unchanging institution from time immemorial? It has changed over the years and is doing so again. I haven't seen any of the jurisdictions around the world that allow gay marriage collapse.

  5. maggot

    um, because the gay judge is deciding whether he can marry anyone he is likely to marry.

    Patterico took up this issue, and i think is visibly struggling with it. But i think he lays out the concern very well:

    > One could argue that a gay judge deciding this case is no different than a heterosexual judge deciding the case. But I think that argument misses the mark. With this decision (at least once the stay is lifted), Judge Vaughn Walker now has the right to marry another man, if he wishes. This is a right he did not have in California before yesterday. The rights of a heterosexual judge would not have changed.


    But he later acknowledges doubts as to the final resolution, so i think you can properly say he is working it out, in real time, on his blog.

  6. btw, cf, kagan is not going to decide this issue. Justice Kennedy is.

    This is kennedy's constitution and we are just living under it.

  7. A.W. is spot on here. This will all come down to how Justice Kennedy views this issue. If he views it broadly, he will fit it under the analysis from Lawrence v. Texas, and California's same-sex marriage ban will be toast. If he decides it narrowly, he will find that Lawrence only applies in criminal cases, not in cases where the government is recognizing status or providing benefits. Then the district court ruling will be reversed and California's law will be restored. It's that simple.

  8. A.W.

    So if a straight judge has nothing personally at stake with a ruling (family, the society, the defense of marriage), what exactly was the point of Proposition 8 again?

  9. Legal wrangling aside, if two adults have built a life together they have a right to protect what they built and to protect, make life and death decisons and care for one another.What's next are we going to remove civil rights protecting against discrimination based on ethnicity, religion and color.Maybe we shouldn't have laws protecting the disabled. Because people are different does not mean they are any less human and any less entitled to their humanity and their human rights. To decide that someone is less worthy of society's protection for any reason smacks of Nazism.

  10. It is the role of a jury to be the trier of facts, not the judge. The only indisputable fact is that the amendment passed. The court should have either allowed this case to go to trial and leave the fact finding to the jury or it should have dismissed this at the summary. Marriage is a state matter not a federal question as the constitution presently stands.
    The California AG ought to be impeached and removed from office for failing to defend this matter. Whether or not he personally agrees with the proposition is irrelevant, millions of qualified California voters expressed their support for this measure and voted for it. It is his job to defend state law and the state’s constitution in the courts his personal beliefs notwithstanding. As for the judge in this matter, he to should be impeached and removed for his highhandedness, as an example to the rest of the judiciary who fancy themselves as legislators.
    I believe that gays ought to be able to get married, but this is a political process and should be done at the ballot box and not by highhanded judges who deem to know better than the voters and invent rights that are nowhere to be found in the constitution. Another approach would be to push for the ratification of the Equal Rights Amendment in the various state legislatures, a political process, and that amendment would incorporate the right to same sex marriage.

  11. Any idea how long it will take for this case to get to the Supreme Court? I've heard that it could be years.

  12. modulo

    the truth? The reason why californians passed it is moral opposition. And lawrence's declaration that this is insufficient in and of itself is one of the stupidest parts of the decision.

  13. Let me expand on the subject of common morality in law a little.

    We do ban relationships based on nothing more than common morality.

    For instance, many incorrectly believe that the ban on incest is about preventing children with recessive genes. If you read the statutes, you will learn that many states also ban relationships between people related by marriage (as in, step brothers and step sisters) or by adoption. That is in many states Greg Brady cannot marry Marsha Brady, and to go to Different Strokes as a metaphor, Willis can’t marry Kim, because Kim’s father adopted Willis as his son. In both cases, Greg and Marsha, Kim and Willis, the people are genetic strangers to each other, presenting no greater danger of bringing out recessive genes, but not only to we say they can’t marry, but we also say they can’t even have sex. And if they do, we will throw them in prison.

    And no one seriously questions the constitutionality of that.

    Of course in academic circles we dress it up. Oh, no, we would never be so provincial to say that we morally disapprove of sleeping with your adopted daughter. No, we just feel that it is psychologically unhealthy. But that strikes me as a difference without a distinction. And it doesn’t matter, anyway. If those relationships can be forbidden because we feel they are psychologically unhealthy, then why can’t the people of California say that gay relationships are psychologically unhealthy, too?

    That is why I keep tossing out the example of gay incest, to make you think about what the ban on incest is REALLY about.

  14. "The California AG ought to be impeached and removed from office for failing to defend this matter. Whether or not he personally agrees with the proposition is irrelevant"

    Maybe I'm being cynical, but I suspect the main concern of the California AG is how any particular action would impact his gubernatorial run.

  15. So how far will it go? It seems to me that those who practice polygamy for religious reasons have a much stronger legal argument. It will be interesting to see if a polygamous family will go to San Francisco, and attempt to become legally married. By using the same reasoning as used by the judge, how can they possibly be denied legal marriage? It is interesting to see how they have had legal successes despite facing a large degree of religious bigotry.


  16. Dan McLaughlin points out some circular thinking by Judge Walker. From Judge Walker's decision: ". . . while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, …the record reflects that marriage is a culturally superior status compared to a domestic partnership…. proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”

    McLaughlin: "Suddenly the “social meaning” and “cultural meaning” and “status” of marriage is not irrelevant, but essential. This is what economists call free riding: traditional marriage gains social and cultural significance by long experience and association with moral, religious and cultural norms – and yet it is constitutionally improper to deny the same status to an institution that doesn’t comply with those norms. Judge Walker puts the culture on one side of the scale while lifting it off the other . . . "

    So let's think about whether the "social meaning" or "cultural meaning" of marriage will automatically apply in the same way to same-sex marriages, or if same-sex marriage will change those meanings: Gay married men in Massachusetts are reportedly far less likely to value sexual exclusivity than are heterosexual married couples. Beyond issues of pregnancy, there are characteristics of male sexuality which make the desire for more than one partner entirely understandable. And they are often able to maintain a strong emotional connection with one person while having sex with others. But the monogamous model for heterosexual marriage is more likely to result in a stable home environment for children than a model in which either the man or woman feels little social pressure to remain faithful sexually. And a recent poll indicated that Americans still highly value the ideal of sexual fidelity in marriage.

    So . . . should gay married men insist that people should think that THEIR infidelity is just as bad as HETEROSEXUAL infidelity? Or will they expect different social and cultural meanings to be attached to their unions when it comes to their sex lives? On the other hand, will heterosexual couples be expected to accept Andrew Sullivan's view that gays have a lot to teach straights about not being so uptight about sexual fidelity? Who gets to decide what the future social and cultural meanings of marriage are if moral, religious and cultural norms cannot be considered?