Good article in the NYT today about the oral argument before the California Supreme Court in the California same-sex marriage case.
This is really an “m-word” case — California already has a pretty robust domestic partnership law. But as Mr. Obama has been reminding us, words do matter. Here’s my favorite part of the article:
“Domestic partnership and marriage are not equal,” Ms. Stewart [attorney for the city and county of of San Francisco] said. “Words matter. Names matter.”
The Supreme Court here was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The United States Supreme Court did not follow suit until 1967.
Ms. Stewart asked whether giving interracial couples the same rights under a different name — “say we called it transracial unions instead of marriage,” she said — would have satisfied the state Constitution in 1948.
Several of the justices seemed receptive to the analogy. Chief Justice Ronald M. George, seen by many here as the swing vote on a closely divided court, paused three times during the argument to quote from the Perez decision.
“The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” Chief Justice George said at one point, quoting a passage from the Perez decision by Justice Roger J. Traynor, who would go on to become chief justice of the court.
Well, we do recognize legitimate restrictions on that right. None of us, I think, would argue against prohibitions that prevent you from marrying a 14 year-old, or your first cousin, or your 14-year old first cousin (sorry, Jerry Lee). There are compelling, legitimate state interests at stake. But what’s the compelling rationale for restricting marriage to members of the opposite sex? According to the article, here’s what the State of California came up with:
But the lawyers for the governor and the attorney general agreed on the government interests that they said justified reserving the term marriage for heterosexual unions: tradition and the will of the majority.
Tradition and the will of the majority? I don’t think that’s gonna cut it — and I know, as a matter of constitutional law, that it shouldn’t.
Controlling Authority 
As I recall, “tradition and will of majority” specifically didn’t cut it as compelling state interests in Romer v. Evans.
I like how, after Mathew D. Staver “gave a vigorous presentation on the importance of marriage to society in general and to children in particular.” Justice Ming W. Chin asked the lawyer for San Francisco “Did he just make your argument for you?”
One more thing: Perez v. Sharp was an important case, not just because it was the key stepping-stone to Loving, but it was the first time social constructionist arguments about race were heard and (partially) accepted by a State Supreme Court. The ideas of Franz Boas and some of his students shaped the petitioner’s legal strategy. Historian Peggy Pascoe has a great article about miscegenation law and racial ideology where she discusses this case (in Sex, Love, Race: Crossing Boundaries in North American History, 1999, ed. Hodes)
Brain — Thanks for the cite to Peggy Pascoe — I found one of her articles on miscegenation laws on the web — very interesting.
This is an interesting and important topic. It would be such a dramatic change if the California Supreme Court struck down the current law. But then what would happen politically, both within California and nationally?
Within California, I couldn’t say. Nationally, as the article points out, the Massachusetts decision in 2003 became a national issue, and probably hurt Sen. Kerry, since it was his home state, and reinforced the “Massachusetts = Liberal” bogeyman for the right. This time, I’m not so sure. Both Clinton and Obama have disowned the same-sex marriage issue, saying that they support domestic partnership laws that would give rights similar to marriage to same-sex couples, but want to keep the word “marriage” for heterosexual partnerships. In other words, gays and lesbians can have everything heterosexuals can have, except dignity. A real profile in courage, huh? I still like Obama, but I wonder whether all those people singing “Yes we can” realize how badly he’s caved in on an issue of basic civil rights.
So, I ask this question all the time and never get a good answer: How come we don’t challenge the legal restriction on marrying a man. So, here is the argument: I (a woman) have a constitutionally protected right to marry a man. Jeff (a man) does not enjoy that right. Why doesn’t Jeff make an equal protection argument that he is being denied equal protection in violation of the 14th amendment? Then, the obligation is on the government ot prove a compelling state interest in denying him the right to marry a man — we don’t have to talk abotu 14 year old cousins — You, Jeff, simply want the same right I enjoy (but you can’t have Eric).
And, the further beauty of this argument is that the history of the 14th amendment sex claims demonstrates that when men sue and ask for something women have (like social security benefits) the claim is usually successful.
If you are interested, here’s a link to a site that links to all of the briefs, including the numerous amicus briefs.
http://www.nclrights.org/site/PageServer?pagename=issue_marriage_ca_briefs
The main briefs, of course, focus on California’s state constitution, as federal courts have the last word on the federal constitution, and no one thinks that the Supremes are going to give the 14th Amendment the interpretation you suggest, no matter how logical it may seem. (And the counterargument, of course, is that a man seeking to marry another man is not asserting the same right as a woman seeking to marry a man — he’s seeking the right to marry someone of the same sex, while the woman is asserting the right to marry someone of the opposite sex. And the law equally forbids men and women from marrying persons of the opposite sex. So your argument is really just a semantic loop, and it also excludes lesbians, unless you think that it is also the case that when women sue under the 14th Amendment for something that men have (like the right to marry women), the claim is usually successful. And this seems to be an issue that affects more lesbians than gay men — 9 out of the 15 couples who are plaintiffs in the California cases are women. So, LB, I am forced to conclude that you are shamefully insensitive to the rights of your sisters.)
But, look at the amicus briefs. Well I have a job, so I only had time to look at one, but the NAACP Legal Defense Fund does make a 14th Amendment argument. And I think its pretty compelling. Loving v. Virginia isn’t a case about marrying among any race you want, it’s a case about marrying whomever you want.
I did not mean to exclude sapphistic love (that should get the blog a LOT of hits) – I thought they could sue later.
And what is law if not semantics?
What is law if not semantics? Even I’m not that cynical. And they let you near impressionable undergraduates? I tremble for the future of our republic.
They could sue later? How much later? And on what grounds? Here’s the problem with your argument — men as a class aren’t affected by the same-sex marriage ban. Just a few. The ones who might want to marry other men. (We have a classification for that group of men. We call them gays.) So it really isn’t sex discrimination — it’s discrimination against another, identifiable class. And even if it was sex discrimination, gender is not as suspect a classification under the 14th amendment as race. Classifications based on sex are subject only to intermediate scrutiny, not the same strict scrutiny as racial classifications.
A better, more honest, less semantic equal protection argument, it seems to me, is that it’s not men who are being discriminated against, or women, it’s gays and lesbians. And while the Supreme Court has not given suspect classification protection to gay men and women, the equal protection argument is that there are no legitimate grounds for discrimination in the area of marriage, and so same-sex marriage bans cannot meet the “rational basis” test that is employed for non-suspect classifications. Justice O’Connor relied on the rational basis test in her concurrence in Lawrence v. Texas, although she made it clear that she thought there was a rational basis for discrimination regarding marriage. The equal protection argument is almost certainly a loser before today’s Supreme Court, but the Massachusetts Supreme Court bought it under the analogous state constitutional provision, and maybe the California court will, too.
Since I’m not as educated in the law as LB and Jeff, my comments are based on my biases! Common sense tells me that the law has no right to tell us whom we can or cannot marry; and if religion were truly separated from law-making, this would be a non issue. Of course, God is everywhere, even on our money….
LB — I should say that your argument would work if anyone (male or female)could marry a woman, but only women could marry men. That would be closer to sex discrimination.