Filling In The Gap

Talking heads and pundits on news shows are interesting and all, but there's no substitute for studying an original source and making up one's own mind. I've now finished reading all 138 pages of Judge Walker's opinion in Perry v. Schwarzenegger, in which he found Proposition 8 to be unconstitutional. As a lawyer of some years' experience, I found it exhaustively researched, thorough, logical, solidly grounded in evidence, and compelling in its legal conclusions. Anybody who rants about it being the illegitimate agenda-driven power grab of a biased judge is either ignorant or uninformed or blinded to intellectual honesty by their own preconceptions. Such people would usually rather sling ad hominem attacks than educate themselves about details and deal with the merits.

All that said, I'm now going to make a confession. I've always had one concern with the equal rights argument for marriage equality, especially under Loving v. Virginia, the U.S. Supreme Court case which held that laws against mixed race marriages were unconstitutional. Loving clearly said the Constitution establishes a fundamental right to marry. However, marriage equality opponents have consistently pointed out that that statement assumed a male/female marital structure. They agree there's a fundamental right to that model of marriage, but only that, because when Loving was handed down, no other definition of marriage was contemplated. Arguably, then, Loving doesn't even apply to a "redefined" model of marriage as between two men or two women, because that's not a "marriage" under Loving. If that argument is accepted, the equal rights-based argument for marriage equality is noticeably weakened. This implication has troubled me for some time. I knew something was missing in the analysis but I just couldn't put my finger on it.

Thank you, Judge Walker, for supplying the missing piece. As you read on, note that he refers to evidence presented in trial for each conclusion (I've left out the reference notes for ease of reading). This is not the uncontrolled usurpation of power by a radical petty tyrant; it is the reasoned weighing of arguments and evidence presented by both sides and the drawing of conclusions therefrom. Here's what he said:

"The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction.

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

[Now, here's the money quote that supplies the missing piece to the argument about Loving just above]

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. 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. Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

And there you have it, ladies and gentlemen. Loving's declaration that marriage is a fundamental right does apply to same-sex couples because the legal nature of spouses' marital roles has evolved since that time, such that we no longer draw legal distinctions based on the gender of each spouse. Since we no longer do that--a result even most defenders of "traditional marriage" would surely favor and have probably reflected in their own lives--there's no longer any legal justification for saying that gender must nevertheless be preserved as the ultimate determining factor for admission to civil marriage in which the roles and responsibilities of each spouse are legally indistinguishable. Put succinctly, the evolution's already done. All we're doing now is recognizing and labeling it.

And women who oppose marriage equality had better recognize that it's the inevitable result of their being freed from past gender-based legal restrictions that would have been imposed on them as part of their marital role if their older sisters hadn't fought so vigorously to throw off those restrictions. If they are intellectual consistent and want to "preserve traditional marriage," then they'd better be prepared to take up those restrictions again, go backward in time, and sign over all their legal rights to their husbands because that used to be part of "traditional marriage" too. Any takers? (Crickets chirping). Didn't think so.

I recognize that this is a bit of legal wonkery that most normal people wouldn't have lost much sleep over. That's fine. But this is my blog so I get to say what I want, right? Of course right. (Public plaudits to the first commenter who identifies the Broadway musical to which I've just alluded.)

Cross your fingers that tomorrow Judge Walker will deny the stay and that the 9th Circuit and SCOTUS will do the same. And in case you hadn't heard, it now appears this thing might not make it to the Supreme Court after all, for legal procedural reasons I find fascinating and which will no doubt have Mags Gallagher and the NOM crowd squealing like stuck piglets. Watch this space for further developments.