Determining Standing

Marriage is a wonderful institution, but as they say, anyone committed to an institution ought to be. That’s a joke, or maybe it isn’t. People get divorced all the time, and remarry, often again and again, hoping to get it right. They seldom do, but they defend the institution anyway. Think of Newt Gingrich, married now to the mistress he acquired when he was married to his second wife, who had been his mistress when he was married to his first wife. The whole thing is a bit odd – but he blames it all on loving his country too much and thus not paying attention to the personal stuff, which he does pay attention to now, because he really believes in the institution of marriage – but not for gay folks. Then there’s Rush Limbaugh, now married four times with no children and telling America every single day on his wildly popular radio show that allowing gay folks to marry will destroy the institution of marriage, ruining it for everyone else, destroying the family – and think of the kids of course. Both of these guys love the institution in the abstract. The problem seems to be in the particulars. Of course Limbaugh did say drug use is destroying this country, and if people are violating the law by doing drugs, they “ought to be accused and they ought to be convicted and they ought to be sent up” – and then he was arrested for skirting the law to feed his own severe prescription-drug addiction. He accepted a plea deal and wasn’t sent up, and it didn’t hurt him much with his fans. Drugs are always evil, in the abstract, and marriage is always a wonderful institution, also in the abstract. In terms of social norms, and the public policies that support those norms, social conservatives are idealists. They love the Platonic Ideal of this and that – its manifestation in real life is just a poor shadow of the universal one true thing.

Some would say these people are hypocrites, hypocrites who have no standing to say anything about drug laws or marriage, but they would say they’re noble idealists, fighting the good fight for what is right and true, in spite of their own personal failings – but we’re all human and no one’s perfect. As for marriage, part of marriage has nothing to do with the universal ideal. Married couples get tax breaks from the government and there are advantages in estate planning, and there are assumed legal responsibilities and shared liabilities, which makes marriage an actual contract, in the legal sense. Prenuptial agreements are the equivalent to stop-loss clauses in any contract. None of that is very idealistic but there are pledges of mutual aid and comfort in all circumstances too, an understanding that the one will be there for the other no matter what – so love and honor and even obedience are also at the core of marriage. Additionally, the government recognizes that marriage brings stability to a society, tamping down the craziness, and thus they encourage it, mainly through the tax code. All religions believe that too – people should be married. It’s good for everyone. Putting the abstract ideal aside, the institution of marriage isn’t bad at all. It’s just hard to do right.

The question now is whether gays should be allowed to participate in the institution, whether they should be allowed to enter into such contracts, and whether that would add further stability to society or destabilize everything. The question is whether the state has a compelling interest in forbidding a certain class of citizens, who have all the others rights of citizens, from entering into this one particular form of contract. The argument is that men should not be allowed to marry men, and women should not be allowed to marry women, because that’s just not right – that’s not how things should be, and not how things ever were. This is the culture war of the sixties on steroids. As a matter of contract law, however, things aren’t that clear. Minors cannot enter into binding contracts – they’re not yet capable of understanding the actual irrevocable implications of signing on the dotted line – but we’re talking about fully responsible adults here, unless we’re saying they’re a special class of adults who have no right to access this part of civic life. At one time interracial couples didn’t have that right and then they did – in the late sixties the Supreme Court ruled that there was no rational basis to deny them access, as it were. Gay marriage could be seen the same way.

That is now what is before the Supreme Court – a day of arguments regarding the constitutionality of California’s Prop 8 – where the citizens of this state voted to make gay marriage illegal, after it had been legal for a few months. The question before the court is whether the right to enter into these essentially private contracts, with public benefits, can be stripped away by popular vote. Basic rights aren’t subject to popular vote – the inalienable rights mentioned in the first ten amendments to the constitution for example – and this seemed to be a case where a basic right was voted away. A second day of argument will be about a more limited question, whether Congress can withhold federal benefits from same-sex couples married in those states where it is legal. Some states say they’re married and the federal government says no they’re not. Which is it? Lower courts have said that the Defense of Marriage Act of 1996 is unconstitutional – you really can’t treat legally married gay couples differently from straight ones. Clinton’s clever Defense of Marriage Act makes no sense, and even Bill Clinton now says it was a terrible mistake, as does every Democrat who voted for the damned thing – but really, one must decide whose definition of marriage has standing here. That’s a puzzle.

No one is comfortable with any of this. The Obama administration has decided that the Defense of Marriage Act really is unconstitutional and has refused to defend it, even if, by law, they must administer it. When the Ninth Circuit declared California’s Prop 8 absolutely unconstitutional, the state had long ago refused to defend it. In both cases private parties defended these things, not the government – which was quite odd. Those in charge know a terrible idea when they see it – a big mistake – and now want to fix things. Private parties with deep pockets, and idealistic righteousness, and the Republicans, decided there had been no mistakes at all. Maybe so, but do they have standing in these matters? They’re bystanders, after all.

That led to an interesting first day in court:

A cautious and conflicted Supreme Court on Tuesday seemed wary of a broad constitutional finding on whether same-sex couples have the right to marry, and some justices indicated that it may be premature for them to intervene in a fast-moving, unsettled political environment.

Justice Anthony M. Kennedy, considered to be the pivotal vote on the issue, said the court was in “uncharted waters.” He questioned whether it should have even accepted the case…

There’s that, and an attempt to slow things down:

“You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?” Justice Samuel A. Alito Jr. asked. “We do not have the ability to see the future.”

Even Justice Sonia Sotomayor, whose questioning indicated that she was skeptical of the reasons proffered for why gay couples should not be allowed to marry, seemed to think that it might not be time for the court to make a bold decision.

“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked.

Still all this had to be argued:

Washington lawyer Charles J. Cooper is representing proponents of Proposition 8 in defending the law, since California officials have refused. He said the court should respect the decision of California voters, who faced the “agonizingly difficult question” of whether to protect traditional marriage after the state Supreme Court ruled that gay couples could wed.

Theodore B. Olson, representing two California couples who want to marry, wants Proposition 8 overturned. But he is also pushing the court to find that the Constitution demands that the fundamental right to marry be extended to same-sex couples nationwide.

And Solicitor General Donald B. Verrilli Jr., representing the Obama administration, is offering something of a middle ground. He said those states – fewer than 10 – that offer gay couples benefits such as civil unions must take the next step and offer marriage.

The administration’s position drew almost no interest from the justices. And from their comments, it was difficult to locate a majority of five for either of the other options.

Chief Justice Roberts just wanted to know whether the court might dispose of the case by finding that Cooper’s clients did not have the legal standing to bring it. Who was harmed? What the hell do they want anyway? But then Justice Kennedy worried that a decision that Cooper’s clients did not have standing to bring the case would encourage state officials to sort of sneer and not defend any citizen initiatives they disagreed with.

That’s possible, but the rest was clear enough:

The debate about whether marriage should be extended to same-sex couples revealed a familiar ideological divide on the court. Liberals such as Justice Elena Kagan seemed not to buy Cooper’s argument that the state’s interest in marriage was to foster responsible procreation and child-rearing.

“Suppose a state said that, ‘because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55,’ ” Kagan said. “Would that be constitutional?”

Cooper said one of the partners might still be fertile, and Justice Antonin Scalia made a joke about the late senator Strom Thurmond, who fathered a child while in his 70s.

Kagan also pressed Cooper on his arguments that extending marriage benefits to gay couples could hurt heterosexual couples. “How does this cause and effect work?” she asked.

“We don’t believe that’s the correct legal question before the court,” Cooper said. “The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage.”

Was that what this was about? The issue was Prop 8 out here, and Adam Liptak reports this:

Justices who appeared sympathetic to same-sex marriage indicated that there was no principled way to issue a ruling that could apply only in California or only in the nine states that have robust civil union or domestic partnership laws but withhold the word marriage. That appeared to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.

Nothing is ever easy, but some things are:

Justice Elena Kagan asked him how letting gay couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.

Mr. Cooper responded that “it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” The key to marriage, he said, is procreation.

That did not seem to satisfy several of the justices.

Justice Stephen G. Breyer asked Mr. Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said.

Justice Kagan asked whether the government could ban a man and a woman who are over 55 from marrying because they would not be able to have children. Mr. Cooper said the court could not constitutionally ban such marriages, but he said that was no reason to alter traditional definitions.

Kagan and Breyer smelled bullshit here, and Salon’s Irin Carmon digs deeper:

Even if the Supreme Court does decide to punt on the Proposition 8 case, today’s oral arguments again made something clear: Defenders of the marriage equality ban are very, very anxious about gender roles. And a majority of the Court may not be buying it.

Defenders of California’s ballot referendum banning gay marriage said today in court, and in their brief, that if marriage becomes a “genderless institution,” children will suffer, because gay people can’t procreate without help – or rather, because marriage evidently exists to sanctify the accidental baby-making of men and women, despite the fact that so many women and men making babies today are rejecting marriage.

Yes, this is their real argument.

Making it into a “what about the children” question sounds better than hating gay people for being gay, and it also sounds better than saying that men are intended for one thing and women for another. And yet that’s exactly the implication made clear before the Supreme Court.

This is the detail that Carmon notices:

Kennedy asked Charles Cooper, the lawyer defending Proposition 8, “Do you believe this can be treated as a gender-based classification?” He was talking about marriage. Kennedy added, “It’s a difficult question that I’ve been trying to wrestle with it.” Cooper said no, and that previous courts hadn’t found that marriage is a “gender-based classification.” Cooper naturally wouldn’t want to concede the point – gender-based discrimination is subject to a higher bar of scrutiny by the court – but he did say, “I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered [and] motherhood is gendered, it’s gendered in that sense.” That’s something of a tautology: Marriage is gendered because men are men, women are women, and that should be enough.

Cooper also wilted under Justice Sonia Sotomayor’s questioning of whether it would be justifiable to discriminate against gay people in a non-marriage context. He said it wouldn’t. “I don’t quite understand it,” Sotomayor said, having cornered him. “If you’re not dealing with this as a class question, then why would you say that the government is not free to discriminate against them?” In other words, Cooper has to justify why marriage is different, and his answer is because marriage is supposed to be for babies. (Or as he inauspiciously put it to Sotomayor, “Your Honor, that’s the essential thrust of our – our position, yes.”) In the absence of childbearing, Cooper said, society would “refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” This was viewed as self-evidently terrible.

Tell that to the much-married childless Rush Limbaugh, or to anyone who married for the mutual aid and comfort the one may have of the other, as it’s sometimes said. There’s much to be said for the emotional needs and desires of adults. And Carmon adds this:

You’re meant to infer that irresponsible sex between gay people is not the state’s concern, because no sad children would result, as they would inevitably from straight people fornicating. The fact that the link between sex and childbearing, and the link between marriage and childbearing, has already been severed for reasons that have nothing to do with gay people is left aside, except to note that when it happens, it is a bad thing: “Irresponsible procreation and childrearing – the all-too-frequent result of casual or transient sexual relationships between men and women – commonly results in hardships, costs, and other ills for children, parents, and society as a whole.” To paraphrase, heterosexual single parents are allegedly terrible for society, so gay people can’t get married. Why can’t everyone just stay in their place?

It is surely inconvenient for Cooper and his co-counsels to have to face the two newest members of the court, who one way or another have failed to fulfill their apparent female responsibility of procreation within marriage – Sotomayor is divorced, Kagan never married, and neither has children. (The third female justice, Ruth Bader Ginsburg, is not exactly known for her sympathy to arguments based on traditional sex roles.) Neither of these justices was ever likely to uphold a ban on gay marriage, but their questions helped get to the heart of the matter.

Indeed, one of the most ridiculous moments in the hearing occurred when Justice Elena Kagan sensibly pointed out that infertile people are allowed to marry all the time, provided they’re of the opposite gender.

It was all nonsense:

The argument isn’t about children; if it were, the welfare of the children of gays and lesbians would matter, regardless of how they came into the world. The argument is about what enforces the difference between men and women, and in a society where gender roles are up for grabs daily, biology suddenly looks like it’s all the “traditionalists” have left. Too bad for them, it isn’t much.

It isn’t much, but Alex Pareene hones in on something else:

Most popular opposition to same sex marriage is driven by simple homophobia. I’m sure opponents would disagree, but it seems like the rapid shift in public opinion on the question is evidence that the once-prevalent attitude that gays are weird and/or gross is dissipating as straight Americans get to know more and more out LGBT Americans.

“Gays are weird and/or gross,” though, is not a great legal argument, and right now the Supreme Court is deciding whether or not there is a good reason for the state to ban same-sex marriages while allowing opposite-sex marriages. So far the best that opponents of equality could come up with was “opposite marriage is just the way marriage has always been.” That falls apart when you compare the modern American institution of marriage to marriages as they’ve been practiced throughout human history, as anyone who has read a book called “the Bible” could tell you – so the opponents moved on to their current argument – the last, best argument for banning gay marriage – which is, basically, “for the children.”

Pareene is not impressed:

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite – opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I – Your Honor, that’s the essential thrust of our – our position, yes.

In other words, gay marriage is banned because the purpose of marriage, and the reason the state has an interest in involving itself with marriage, is to help ensure that as many children as possible are raised by their biological parents.

Leaving aside that allowing gay marriage doesn’t prevent the state from encouraging straight parents to wed, this argument is horrible – because it quickly becomes an argument for banning divorce, and for state-mandated shotgun weddings in the event of unplanned pregnancies. If the state restricts marriage to straight people to encourage them to raise children together, why would the state allow them to opt out of marriage but still have children?

Pareene had other ideas:

If the state is interested in ensuring the welfare of children, there are a lot of things it could do that would be much, much more effective than banning gay marriage. It could provide universal childcare for working people, for example. It could spend more on nutritional food in schools, hire more social workers and pay them a great deal more.

But if the argument is that we have to go back to the day when marriage was effectively something society forced couples to do in order to make sure their children had stable homes, that argument should be made more plainly. Don’t just protect Traditional Marriage, Supreme Court: Ban divorce!

That wasn’t on the docket, or maybe it was. Who knows? The California Supreme Court said same-sex marriage was legal, the voters of California then voted for Prop 8 that declared it would be now and forever totally illegal, a district court said yes it was illegal and then a circuit court said no, voting that it’s illegal is unconstitutional, so it is legal, and the state wouldn’t defend it, so others took it to the Supreme Court, but those others may not have standing in the matter at all – and now Californians are sixty-one percent in favor of gay marriage being legal so they’d like a do-over.

Is that clear? No? Fine – just think of it this way. Who is harmed by two men or two women entering into a private consensual contract that assures social stability? Yes, it is marriage, and that shifts the terms a bit, making it a slightly different institution, but then anyone committed to an institution ought to be. This is not only fair. It might be good for all of us.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Determining Standing

  1. Rick says:

    The one very obvious argument I see nowhere in any of this is the one that pertains to my wife and myself.

    If marriage is meant only for those who can and do procreate — and not for those who will merely adopt children, rather than churn them out like Homer’s doughnut machine — then my wife and I, who have two adopted kids, should probably not have been allowed to adopt, and moreover, should not even be allowed to stay married.

    But since, it seems to me, there might be a compelling societal interest in encouraging people to adopt parent-less children, my wife and I can be forgiven our transgression. In fact, the question of children in all of this is not whether a couple can biologically produce them, but whether the couple can raise them through to adulthood.

    But if so, then it could be argued that there is a compelling societal interest in encouraging anyone willing to adopt and raise children, even gay couples (since there’s apparently no demonstrable harm done in parents being gay) — in which case, instead of banning same-sex marriage, society (that is, the state) should be encouraging same-sex marriage.



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