A Win for Equality and Justice

So Proposition 8 in California has, at least for now, been overturned. The decision is being appealed, and will surely end up in the Supreme Court. The summer of the 14th Amendment continues.

The decision itself is fascinating, and Vaughn Walker's careful reasoning is a joy to read. For one thing, he demolishes the idea that the "yes" vote on Proposition 8 represents in any meaningful way "the will of the people." He unpacks how Protect Marriage financed and managed the messaging, and that it was, for all purposes, a religious movement. Whether this has any significance as a finding in law I don't know, but it makes Jeff Sessions, for example, look like a cheat and a liar as he pouts that the decision is "an example of a judge feeling that they know better than the people". The passage of Prop 8 is, in fact, an example of how special interests can buy election outcomes. It says nothing at all about where we are as a "people" on this question. If you want to know that, consult Nate Silver, not the results of the vote on Proposition 8. Silver shows that changing demographics - the aging of America mainly - and shifting opinions will make same-sex marriage the law of the land in a matter of years. Proposition 8 is a burp, a historical bubble.

Further, Walker argues that deeply held "moral" opinions - whether they represent the majority or not - should not guide our law and policy, if they subvert the Constitution. Walker writes: "Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law." Under state and federal law, what matters is the Constitutional test, not the unanimity of opinion or its situatedness in dearly loved moral or religious traditions.

Further "California, like every other state, has never required that individuals entering a marriage be willing or able to procreate." So the idea that marriage is an institution formulated to produce and raise children is a thought raised merely to advance an argument against gay marriage, but it has no basis in law or in our "tradition and history." This last point is important, since, as you might recall, Samuel Alito based his decision in McDonald v Chicago on the idea that Americans have a "history and tradition," of shooting holes in each other to protect our home and possessions.

Walker goes on to dismantle another proposal offered by Proposition 8 supporters by dragging in anti-miscegenation laws. He reviews that: "Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry." Those laws were once justified as being "naturally-based and God’s plan just being put into positive law," the same argument advanced all along by Protect Marriage and supporters of Proposition 8. Walker points out, though, that "Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967." These laws were swept away because, in the words of the Supreme Court's decision in Loving v Virginia, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State."

If that is true of race-based marriage restrictions, it is surely true for sex-based restrictions. Discrimination and bias and "invidious" opinions cannot be the basis of policy in a society that celebrates equality.

The next step Walker takes is even more applause-worthy. He says: "Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family." However, "currently, the state’s assignment of marital roles is gender-neutral. [B]oth spouses are obligated to support one another, but they are not obligated to one another with a specific emphasis on one spouse being the provider and the other being the dependent. The legal status of a wife has changed. Her legal personality is no longer merged in that of her husband." Fascinatingly, Walker offers an opinion on the equality of men and women in a judgment about the equality of same-sex and traditional marriage. He not only frees gays and lesbians from the chains of "invidious" opinion, but forcefully reinforces the equality between men and women in a society where that idea is still too uncertainly established.

Piece by piece, Walker concludes, marriage under law doesn't serve as a union for procreation, or as a foundation for the reproduction of certain religious traditions, or as a cooperative arrangement permitting men and women to respectively perform distinctive economic functions. Marriage, in our day and age, has legal and institution value (since inheritance and social welfare benefits have become interrelated with marriage) and psychological and health benefits - married people, studies show, live longer and are happier.

So the supporters of Proposition 8 are essentially left to argue that the benefits of marriage should be denied to same-sex couples merely because of invidious biases situated in supporters' religious traditions. This entire campaign is about their hatred of gays and lesbians, and nothing more. And the state has no interest in withholding the social and individual benefits of marriage from gays and lesbians merely because one part of our society hates them.