01 December 2008

Fisking stupid arguments against marriage equality.

I keep reading the same tired arguments from the people who oppose the government's recognition of marriage when the participants are homosexuals:

1. The appropriate way to decide the issue is through the popular vote, majority rules.

2. Judges that recognize that homosexuals have the right to marry are "judicial activists," who "legislate from the bench."

3. Gay people already have the same rights as everybody else — to marry a person of the opposite sex.

4. Marriage is a religious institution.

5. Civil unions are just as good as marriage, and the government should grant civil unions and leave marriage to churches.

Every single one of these arguments is founded in a profound misunderstanding of Constitutional Law. And that isn't surprising, since one doesn't usually hear these arguments espoused by people who have actually studied Constitutional Law. These arguments aren't based on the Constitution or the law or the function of a republican form of government — they legalesque arguments based on what people feel is right and believe to be true. 

Fortunately, the law doesn’t generally work like that, which is a good thing. It’s also a good thing that the law doesn’t permit anybody who imagines they have a flair for engineering to design bridges and overpasses based on what they feel is right and they believe to be true. 

With that in mind, I'll address the arguments in turn.

1. The appropriate way to decide the issue is through the popular vote, majority rules.

The Declaration of Independence says, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Can it be disputed that marriage is among such inalienable fundamental rights that fall squarely within "the pursuit of Happiness"? 

Sure, that pursuit of happiness might include donating one's resources to security of one's beloved and the production of children. But legal marriage doesn't require that. It’s certainly possible to marry with a prenup that denies one's beloved a default share of one's assets. It’s also possible to marry though one is incapable or unwilling to propagate. The state does not busy itself invalidating marriages because they are insufficiently generous or fecund. The public commitment is itself the substance of the "pursuit of happiness" contemplated by marriage, even absent the sharing of resources or the production of children.

But the Declaration is a statement of principles that doesn’t have the force of law, so we need to look at another foundational document, the Constitution. It is not a list individual rights, but was constructed as a delimitation of the sovereign powers of the government, empowered by the people as a whole (as opposed to a monarch empowered “by the grace of God.”) The authors and signatories of the Constitution were well aware of the excesses of an unfettered sovereign who claimed the almighty’s imprimatur. They were determined to create a new form of government that did not subordinate the individual citizen to the whim of the individual sovereign. It was radical in the sense that it essentially ennobled all of us, but did not create a particular nobility, not even a nobility of the voting majority.

Despite the state of the laws of its day, the Constitution never says "not applicable to gays," for good reason. The Constitution was drafted with exquisite care by men of great foresight. Where they believed specifics and limits were necessary to carry out the Constitution’s purpose, they articulated them. Where they wanted the Constitution to have flexibility, they didn't use specifics. It's a very clever solution that permits both unswerving general principles and accommodation for societal growth and evolution.

Even where the Constitution does egregiously and explicitly discriminate in a very specific way, most of us have sufficiently evolved to conclude it is contrary to the very purpose of the Constitution for the state to regard anybody as something less than fully human. Blacks and Indians are indeed "equal." We are all equal under the law, and that is fundamental, constitutional, and until recently, pretty well-settled.

Fundamental rights are the inherent personal rights articulated and implied within, but not limited by, the foundational documents. Fundamental right apply to all citizens, despite the whims of the government or voting majority. That marriage is a fundamental right is not merely my personal opinion. The Supreme Court held in Loving v. Virginia that "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." 

Even assuming arguendo that phrase indicates the court's support for marriage based on the presumption of reproduction “for our survival,” it is worth noting that in the Loving case, the sheriff and deputies, acting on an anonymous tip, broke into their bedroom, shined a flashlight in the eyes of the sleeping couple, and demanded, "who is this woman you are sleeping with?" Mrs. Loving responded, "I am his wife," and pointed to their marriage certificate on the wall. The sheriff replied, "That's no good here."

Clearly the issue of the moment was not whether Mr. and Mrs. Loving had propagated a “mongrel race.” They were, at this point, childless. The problem, as far as the state was concerned, was that Lovings had violated the state's marriage law insofar as they married the partner of their choice, rather than a partner available by law. The Court struck down Virginia’s marriage law because the state had interfered with the exercise of the right to marry on the basis of bigotry, and the court found that justification flimsy.

Some argue that the Loving case should be construed narrowly to mean only that the state cannot limit one's spouse by race. Yet in Zabloki v. Redhail the Supreme Court, in striking down a state law that disqualified "deadbeat dads" from marriage, began from the proposition, "Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that 'critical examination' of the state interests advanced in support of the classification is required."

In English, they’re saying that the Constitution demands that if the state wants to interfere with the exercise of the right to marriage (here, in a way that has nothing to do with race), it better have a damn good reason. That a person don’t fulfill certain legal obligations is not good enough. Even an unwillingness to support the children one propagates is insufficient.

The state can’t apportion or deny fundamental rights on the basis, “we just don’t much like your kind,” “we’ve always done it that way,” or “for the Bible tells me so.” It’s unconstitutional to deny marriage to incarcerated felons, because the Supreme Court in deciding that issue essentially said, “Oh c’mon now, you’re just piling-on,” in Turner v. Safley

But people still argue it is constitutional to deny marriage to homosexuals because of the...perfectly legal things they do in their bedroom? Hell, the government doesn’t deny marriage to child-molesters or rapists despite the illegal things they do...wherever.

Some argue that the Supreme Court's marriage decisions should only be understood in the context of heterosexuality. In Zabloki, the Court said, "Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals...."

All individuals. Their words. 

While the state may, by presenting a very sound reason, limit an individual’s exercise of fundamental rights, there is also no Constitutional mechanism to vote them away on the whim of the majority. It doesn’t say anywhere in the Constitution something like, "the rights of the people shall be apportioned and denied by the will of the majority." Seriously. It doesn’t. You can check. There may presently be a “legal” way to do it, but the fact there is a law does not guarantee it’s Constitutional.

The right of marriage is both fundamental and inalienable. By its very nature it can’t be voted, legislated, or amended away because that concept offends the very principles of the Constitution. 

It surprises the “but, but, but — we’re a democracy, aren’t we? Shouldn’t the majority get their way?” folks to learn that we’re not a democracy, but a republic. They’ve said the words, “...and to the republic, for which it stands...” hundreds of times, but fail to notice.

It also comes as news that democracy was regarded with great suspicion by most of the founding luminaries who viewed it, not unfairly, as a polite term for “mob rule.” Much ink was spilled making the point that governance was properly the province of those selected for their understanding of the proper role of government as not only promoting the collective good, but restraining itself from meddling with individual freedoms. They recognized that a pure democracy will only act in the majority’s interests, but the interests of minorities are equally worthy of protection.

The fact that the public votes to make a law does not automatically render that law constitutional because it is the “will of the people.” If, for example, the majority voted to establish a state religion called the First United States Church, that would be unconstitutional, because it violates the First Amendment. Likewise, if the majority voted to deny Jews the ability to teach, that would also be unconstitutional.

Leaving the determination of a group's constitutional and civil rights to a popular vote is no different than permitting all the other patients in a hospital vote on what your diagnosis is, and what your treatment should be, notwithstanding the expertise of your attending physician. 

We follow the advice of our doctors because they have undergone the rigors of being trained to know more about diagnosis and treatment of maladies than we have, and because of that we can reasonably trust their judgment. It's the same reason we should respect a judge's reasonable and sound application of law to facts. This is not to say that a physician who would diagnose your skin condition as an manifestation of your "sinfulness" should be regarded as anymore legitimate than a judge that would apply Mosaic law to your case, rather than Constitutional law.

If the drywall guy in the next bed thinks my skin condition indicates leprosy, he's free to believe that. However, his belief doesn't somehow translate into my obligation to take Thalidomide. He may not understand or even care that my skin condition may be related to my pregnancy, and Thalidomide may be the worst possible drug that I could be given. It doesn't infringe on his beliefs or affect him an any substantial way if I ignore him, but it may grievously harm me if I must act in conformity to his beliefs.

2. Judges that recognize that homosexuals have the right to marry are "judicial activists," who "legislate from the bench."

There are several ways to make law in the United States. One of them is from the bench. The practice of judicial holdings having the force of law is called “common-law.” The United States is a “common-law” country. From inception, we adopted the common-law practice of England. Therefore, it is hardly improper or “activist” for a judge to make law — it is indeed their job. 

The practice of elected representative making law is called “legislation.” A judge can no more “legislate from the bench” than a congressman can decide a criminal or civil case.

Neither method of lawmaking is inherently superior to the other. It is the constitutional obligation of the judiciary to determine the constitutionality of all laws, however they are made, while a legislature can pass a law that overrules a common-law holding, provided that, if challenged, the law is found constitutional. 

“Judicial activism” would be a judge making a ruling in conformity to a personal belief that something like the Bible, or tradition, or legal precedent, was superior to the Constitution. In American law, nothing is superior to the Constitution.

3. Gay people already have the same rights as everybody else — to marry a person of the opposite sex.

In the Loving case, as well as many before it, the state argued that the white husband and black wife were not individually treated differently under the law so it did not offend the Equal Protection. Each was equally free to marry a person of the same race, and each was penalized equally for not marrying a person of the same race.

A broad reading of Loving would lead to the conclusion that the fundamental right to marry is empty without the right to marry the partner of one’s choice.

A narrow reading of Loving would lead to the conclusion that the fundamental right to marry means only that one is free to marry a person of any race, and opposite gender should be properly be presumed. This invites the question of whether the state is engaging in gender discrimination. 

If it is impermissible for the state to limit your choice of spouse based on race, why is it acceptable for the state to limit your choice of spouse based on gender? In Loving, the Court decided that the state had no business telling a black lady that she could not be a wife merely by virtue of a physical characteristic of her beloved. 

By limiting which gender one may marry, the state is again saying that women are incapable of being wives, and men are incapable of being husbands merely by virtue of a physical characteristic of their beloved. 

But even excluding the gender issue, in Loving, the Court held that the equivalency of opportunity to marry a person of the same race was not equal protection, and the state’s motives for limiting partners by race were unjustifiable. 

Bob Gay could take the opportunity to wed his colleague Sue Hetro. However, Bob has no opportunity to wed his beloved Steve McQueer. It’s absurd to suggest Bob’s unequal opportunity is somehow equal protection, when Mr. & Mrs. Loving’s purportedly “equal opportunities” weren’t. 

4. Marriage is a religious institution.

This argument is predicated on the notion that because clergy solemnize wedding ceremonies, marriage is religious. Obviously this ignores the fact that a couple may be just as legally married for having participated in a non-religious wedding ceremony solemnized by a municipal court judge.

The last sentence uttered by a clergyperson at a religious wedding ceremony is “By the power vested in my by the state of ________...” 

Wait — they got that power vested from where?

Applying the same logic of “marriage is a religious institution because clergy officiate,” then it would follow that if the state decided to vest the power to solemnize wedding ceremonies in ship captains, marriage would be a nautical institution.

The government “vests the power” to solemnize a marrige in clergy and judges to act as the state’s agent for the purpose of ensuring that some formalities have been met, such as ensuring that the proper license has been obtained. (In Missouri, a clergyman faces a $500 fine if s/he doesn’t.)

However, the insistence that marriage is religious invites the question of why the government is providing favorable treatment on the basis of a citizen’s participation in religion. 

That would be unconstitutional.

5. Civil unions are just as good as marriage, and the government should grant civil unions and leave marriage to churches.

Civil unions are not anywhere near “as good as marriage.” Prior to signing the so-called “Defense of Marriage Act” President Clinton asked the GAO to inventory the federal rights, benefits, privileges, and immunities afforded to married people. The GAO found 1,049 of them. 

Since a state’s civil union law affords none of the federal benefits of marriage and the feds regard the civilly unioned as legal strangers, none of those 1,049 apply. And some of those benes are pretty big — social security survivor’s benefits, government and military spousal benefits and pensions, child-support enforcement, favorable treatment under IRS law, immigration sponsorship, those kinds of things.

Civil unions are not portable. That is to say that if a couple married in state A, then moved to state B, even if they wouldn’t qualify to marry under B’s laws, B would still regard them as married. However, if a couple was unioned in state A, and even just vacationed in state B, B would not be obligated to regard the couple as anything but legal strangers.

“Leaving marriage to churches” is addressed in #4.

Whew. That was long, even for me.

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