Federal Judge Vaughn Walker has ruled in the case of Perry v. Schwarzenegger that Proposition 8, approved by the people of California and restricting marriage in that state to being between a man and a women, violates the Equal Protection Clause (14th Amendment) of the US Constitution.
This raises the question: how best to balance the stated desire of the people of California—to adhere to a long-held tradition about marriage—against the decision of a single federal judge in California that the traditional man/woman restriction of marriage can be safely jettisoned, and in fact must be jettisoned, in order to preserve gay rights? Is this a case of judicial activism run amok, or is it a desirable and timely extension of basic rights to a group that has been deprived of them for too long?
I don’t write much about gay marriage, because I am not clear in my mind on what is the best thing to do about it. Both sides have a great deal of merit, IMHO. So it helps me to look at this case in a more narrow legal sense, as an issue of whether the judge was correct under the law to extend the Equal Protection Clause to cover gay marriages as follows:
“The Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review”¦”¦.excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” Walker wrote in his 136-page decision. He suggested that opponents of same-sex marriage had few arguments to bolster their position beyond the claim that marriage is traditionally between men and women, and there are few historical precedents for allowing homosexual unions.
Let’s take a look at the relevant words in the Equal Protection Clause, passed shortly after the Civil War to invalidate the so-called Black Codes, which were attempts by some of the defeated southern states to deprive the newly-freed black slaves of their rights and make of them second-class citizens:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Slowly but surely, in a series of cases that were brought before the Supreme Court over many decades, the Clause was used to expand the rights of blacks, first to have juries that were not totally white, then to be allowed into public places like theaters, modes of transportation, inns, and the like. The expansion of the Clause was dealt a temporary blow by Plessy v. Ferguson, which established “separate but equal,” but was overruled in 1954 by Brown v. Brown of Education.
Later rulings beyond Brown expanded the Clause still further to encompass the prohibition of discrimination on the basis of sex, which was determined to dictate what was called intermediate scrutiny: that is, such a law was to be considered unconstitutional unless it is “substantially related” to an “important government interest.” Laws that involve possible discrimination on some basis other than race or sex are subject to a different standard: the rational-basis test, which means that such a law is presumed to be constitutional as long as it is “reasonably related” to a “legitimate government interest.” Here at last we recognize a version of the language used by Judge Walker in the Prop 8 case; when he said the prohibition on same sex marriage is “not rationally related to a legitimate state interest,” he is using the rational-basis test.
And that is where we stand. Judge Walker thinks Prop 8 fails the rational basis test. But excellent arguments can be made to the contrary (although from what I read, the arguments made in the present case by the side defending Prop 8 were poorly presented). The Supreme Court (or five out of nine of the Justices, which is all it takes to render a decision) may buy those arguments, unlike Judge Walker.
The way some of those arguments might go would be that the right to marry is not absolute and that there are still several allowable restrictions (such as the laws against incest, for example), that the state has long had an interest in regulating marriage, that it is (and always has been) an essential quality of marriage that it be between a man and a woman, and that a state also has a compelling interest in allowing its citizens to vote to determine the rules about marriage as long as they do not obviously violate the Equal Protection Clause, and that there should be a very high standard of proof necessary to prove discrimination to the degree that it would invalidate such a law passed by its citizens on a matter that is not as clearly protected by the 14th Amendment (not race and not sex, but sexual orientation, as in this case).
In some ways, the very strangest statement Judge Walker made was this one:
Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.
Judge Walker may not like it or approve of Proposition 8. He may even think it clearly violates the Equal Protection Clause, and he may want to overturn it. But the fact is that such gender restrictions were a tremendously central part of the historical core of the institution of marriage. They go back thousands of years, to Genesis (and even earlier). Although the following quote is religious, it is also a huge and central part of the historical and cultural core of the institution of marriage in our culture:
The man said,
“This is now bone of my bones
and flesh of my flesh;
she shall be called ”˜woman,’
for she was taken out of man.”
24 For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.
The judge relies on social science testimony presented during the trial to justify his ruling that throwing out this idea doesn’t really matter, and won’t matter in the future. But social science research and its vagaries are a very shaky foundation on which to rest such a striking and basic change in an institution central to our lives.
[NOTE: Some interesting and related questions are discussed here, here, and here.]