Tuesday, May 20, 2008
Thoughts on the California SSM Decision - Updated
Whatever else it was, the California Supreme Court's decision on same-sex marriage was a blow against compromise.
California had already enacted in 2003 a domestic partnership law that offered same-sex couples virtually all the rights and benefits available to married couples under state law. Practically the only difference between a domestic partnership and a marriage, as far as state law had anything to say about the matter, was the single word, "marriage."
Indeed, the main defense of existing marriage laws offered by the state of California was precisely that for all practical purposes, California same-sex couples already possessed the right of marriage under state law. What was at stake was only a word, not a thing.
That sounds more than fair-minded! Yet I think you can see why this argument did not impress the court.
Here is the state of California offering what purports to be exactly the same deal under two different names to two different sets of citizens.
The more the state insists that the distinction between the two deals is meaningless, the more the courts are bound to wonder why the distinction exists at all - and to suspect that what underlies the distinction is not some rational purpose, but irrational prejudice and animus.
The California holding carries a warning to states (and wavering politicians) all over the country: The middle ground on this issue is rapidly disappearing. The further you extend civil unions or domestic partnerships, the more rights guaranteed by those unions and partnerships, the more we will question why civil unions and domestic partnerships exist at all.
Many have criticized the quality of the legal reasoning applied by the California court. (Here's a blogpost from a left-of-center commentator who gives the decision very poor marks.) But however intellectually dodgy, the case carries a strong psychological logic:
The closer a state comes to accepting same-sex marriage, the harder it becomes to justify refusing to take the final step.
Which suggests that the California precedent is going to be very powerful with all those states that offer marital civil unions: New Jersey, Connecticut, and Vermont.
Now of course California same-sex couples are not regarded as married in most other states, or under federal law. Far from clarifying and simplifying the rights of same-sex couples, the California decision has only confused them for years (maybe decades) to come.
The day is not far off when a Massachusetts same-sex couple will find themselves unmarried, remarried, unmarried again, remarried once more, half a dozen times as they drive south on I-95 from Boston to Washington.
California same-sex couples will be married under state income tax law but not under federal, will be entitled to spousal immunities if charged under state criminal law but not federal, will have one set of rights in contract cases but a different set under bankruptcy ... and on and on.
This is obviously not sustainable. Unlike, say, abortion rights, marriage is peculiarly badly suited to a federalist solution. The California decision settles very little - it sets the stage only for a more protracted national legal and political controversy.
We now have two states with same-sex marriage, one of them the most populous state in the country. Unlike Massachusetts, California's same-sex marriage right is not restricted only to state residents. Barring a voter initiative to overturn the California ruling, we can expect California registrars soon to be issuing hundreds of same-sex marriage licenses, each of them a tangle of conflict-of-laws problems.
I say "hundreds" because recent experience in Canada and Europe suggests that for all the passion roused by same-sex marriage as an abstract issue, surprisingly few people will make use of it as a concrete right. In the second half of 2007, for example, the Canadian province of Ontario (population: more than 12 million) issued zero same-sex marriage licenses - even though these licenses now arrive with the full array of marriage rights under both provincial and federal law.
But you only need a few licenses (strictly speaking, just 1) to generate a lawsuit - and the lawsuits will follow.
Some state courts that have been reluctant to impose same-sex marriage on their own states will happily accept out-of-state same-sex marriages as valid. (New York for example.)
And you can count on an Obama administration to look for opportunities to bend the Defense of Marriage Act (which Obama himself has said he would wish to repeal) and extend federal recognition as well where it can.
California settles nothing.
Precisely because the California decision invites further controversy, many commentators see it as a gift to John McCain. Here at last is an issue that will mobilize the social right to vote in November!
The "gift" theory rests on the apparent experience of 2004, when a clutch of anti-SSM ballot initiatives is credited with bringing conservatives to the polls, especially in the all-important state of Ohio. But did that really happen?
Take a look at this chart, especially page 15. While the presence of same-sex marriage initiatives was associated with higher voter turnout in 2004, it was not associated with a higher conservative vote. In only nine states did Bush's share of the vote increase less between 2000 and 2004 than it did in Ohio. And of those nine states, two others also had same-sex marriage initiatives, Montana and Oregon.
Is there any reason to imagine that the issue of same-sex marriage might help John McCain more in the anti-Republican year of 2008 than (the very little amount) it helped George W. Bush in the pro-Republican year of 2004? I can't think of any.
TO BE CONTINUED
05/20 07:26 AM