Would A Rose By Any Other Name Smell As Sweet?

How much weight can the definition of one word carry? Well, when that word is marriage and its meaning vigorously disputed, a hell of a lot.

Should marriage exclusively be between a man and a woman or simply between oneself and a person of one’s choosing, irrespective of gender? Is it for the purpose of intimacy and procreation or only intimacy? These are questions, by now, probably etched into the mind of anyone with even a passing interest in the institution of marriage. The corresponding answers are pregnant with fears on both side of the coin and in just under 90 days the California Supreme Court will give us their answers, and likely allay the fears of one of those sides.

Last Tuesday the court heard the oral arguments (which you can watch here), from opposing parties, including the State of California (arguing to uphold the ban on same-sex marriage), and the City and County of San Francisco (one of the plaintiffs). This is the latest and most significant round of a legal battle that began four years ago when the court invalidated an order by Mayor Gavin Newsom allowing same sex marriage in San Francisco. To say the decision is eagerly awaited would be something of an understatement; as well as possibly allowing homosexual couples to marry the result may also herald a major row between the California electorate and its judiciary arm of government.

In California, gone are the days of “are homosexual couples suitable parents?” or “should homosexual couples, in a committed relationship, be afforded the same rights as married heterosexual couples?” Currently gay and lesbian couples can access the same tangible state rights as married couples, such as property rights and adoption rights, but only under the banner of a ‘civil union’ and not a marriage, (although federal law still prohibits some rights being afforded under the Defense of Marriage Act signed by none other than Bill Clinton). In this sense the argument is rooted in the question of whether limited access to the symbolism of marriage alone translates as an affront to equality. Put simply, does the State, by withholding the label, discriminate against homosexuals?

Some no doubt sense more than a whiff of ‘separate but equal’ here and I absolutely agree. Lets recall that the grounds for ‘separate but equal’ under the Jim Crow laws were that blacks had access to the same quality of services as whites but denied affirmation of equality, the very same ethos presently denying gays and lesbians the right to be judged as married.

It could of course be argued that because – unlike blacks during Jim Crow – gay and lesbian couples do have equivalent services and rights they shouldn’t be complaining: that whereas Jim Crow served to marginalize blacks the current California laws actually empower gays and lesbians. And in fact this was the line of argument that Senior Assistant GeneraAttorney General Christopher Krueger adopted when the plaintiffs cited a decision from the court in 1948 striking down a ban on inter-racial marriage.

Perez v. Sharp
held that marriage is a fundamental right and should not be withheld on the basis of prejudice. What we can take from the Perez decision then is that marriage previously had been restricted because of prejudice and prejudice only. It doesn’t take a leap of the imagination to substitute that reasoning for the current situation.

However, in defending the current status-quo Krueger argued that in Perez “there was marriage or nothing”, implying that gays and lesbians have far more than nothing, they have equal rights. But this is a weak argument as Krueger skirts around the meaning of Perez: that marriage is a fundamental right presumably bearing all of its entitlements to its holders including the label. Moreover, I believe that, contrary to Krueger’s opinion, it is because gays and lesbians are afforded the same rights as heterosexual couples that we should use the word marriage. The old adage should prove true: If a bird looks like a duck, swims like a duck and quacks like a duck, then it’s probably a duck.

Now, despite the congruency of this analogy, the acceptance of recognizing the Perez case as a precedent would have a huge impact beyond the realm of marriage and raises some difficult questions for the justices. The decision will have significant import not only for gays and lesbians but also for California law and government. In addition to the law having to recognize sexual orientation as a classification in the same regard as race and gender for the first time, the quandary at the forefront of the justices’ minds is the decision of whether or not to overturn the will of the Californian people.

In 2000, under prop.22, Californians overwhelmingly voted to define marriage as a union between a man and a woman. The purpose of which was three-fold. First it re-affirmed a change of wording in the California Civil Code, which was calibrated, tellingly, only in 1977. It also served as a referendum on gay marriage and gave voice to the majority of Californians who believe gay marriage should be banned. Most importantly though, it took advantage of the unique power of initiatives in California, making it very difficult to overturn.

In order to overturn an initiative in California you can do one of three things: you can take it back to the ballot box, the State Legislature can create a law contrary to the outcome (which legislators did for gay marriage in 2005, only for Schwarzenegger to veto the bill), or if deemed to be unconstitutional, the State Supreme Court can overturn it. This is the conundrum before the justices. If the governor and the popular majority have stamped their authority on the subject, shouldn’t they too respect those opinions?

The palpability of this problem was evident in Tuesday’s arguments prompting more than one judge to comment on the evolution of equality, a concept based on the idea that everyone will come around eventually and thus encouraging judicial restraint. Justice Werdegar articulated this view most simply:

“Why is this the moment of truth as opposed to 10 years from now?” Werdegar asked.

Although not inextricably, this idea is tied to the heavy boot of tradition; society is not quite ready for such a significant paradigm shift because of the entrenched traditional values of the majority.

Krueger argued as such saying that, “it’s not irrational to maintain the definition of marriage that has stood the test of time.”

Although courts are often deferential to tradition, majority opinion and the legislature, the judiciary ‘s obligation is to adhere to the constitution and intervene when the other institutions have failed to provide equal protection for a particular group. The question for the court then is not whether or not we should wait for the political process to resolve the issue, as it eventually will, but it is whether there is a need for constitutional protection. The answer is undoubtedly yes just as it was in Perez v. Sharp.

In her argument against deferring to the concept of the evolution of equality San Francisco Chief Deputy City Attorney Therese M. Stewart said it best:

“The concept of equality does evolve, but just because society doesn’t see something as unequal until a given time, that doesn’t mean it wasn’t always unequal or unjust. It just means we were blind to it.”

I wonder how blind we will be come June.


~ by oddlyamerican on March 9, 2008.

6 Responses to “Would A Rose By Any Other Name Smell As Sweet?”

  1. It is not quit clear to me why so many right-wing conservatives are completely against gay marriage. They are essentially trying to convince people that mutually respectful relationships are not beneficial to the couple or the society around them. In addition, Democrats that favor civil unions over marriage rights are opening the door to straight couples entering into civil unions so that they can get the benefits alloted, without actually getting married. Civil unions, then , will actually lower the overall marriage rate. Who is to stop two straight “friends” from filing for a civil union in order to get work-related benefits in a state. Legalizing gay marriage would raise the overall marriage rates and civil unions would lower it. This is perhaps the goal of both political parties. Civil unions means no access to Social Security, whereas marriage does give access.

    I’m a legally married gay man in Massachusetts, and because there is no federal recognition of our marriage, we will not contribute to the bankruptcy of Social Security because we will not have access to the money that we pay for legally married straight couples who tap into the Social Security Benefits of his/her spouse. Civil Unions may have nothing to do with gay rights, but rather may be a way of keeping money available in Social Security.

  2. jos76 – It’s a good point you raise about the loop-hole that could be exploited. Who knows, the case in California might eventually go all the way to the Supreme Court, where I believe the 14th amendement should prevail, putting rest to all of this. Maybe then you and your partner would be eligible to access Social Security as you grow old. I firmly believe the Constitution protects this right.

    As for opponents to gay marriage, I often hear from progressives as well as conservatives that making it legal would provide the grounds to legalize polygamy. I will write more in-depth on this argument in the future, but for now I will defer to the idea of equality: by entering into an agreement whereby one person has more than one husband or wife, the individual stature, and thus the equality of the multiple wives or hubands, is seriously compromised.

  3. Marriage is a basic civil right that should be attainable by all Americans if they choose. For the truth about gay marriage check out our trailer. Produced to educate & defuse the controversy it has a way of opening closed minds & provides some sanity on the issue: http://www.OUTTAKEonline.com

  4. If I understand correctly, your argument that the judiciary should make a decision in favour of gay marriage – in the face of a majority public which is against it – rests on the concept that this judiciary has a responsibility under the constitution to protect the equal rights of a particular group.

    Taken in isolation, however, this argument fails to be viable. There are numerous examples in society where particular groups are discriminated against legislatively every day, including against the young, the old, the mentally ill, the differently abled, migrants (legal), the list goes on and on. Why, for example, may a young 18 year old American vote, go to war, kill people, give birth – but not buy a beer? Or what about appropriate education for disabled children?

    As the district attorney said, we are all blind to numerous examples of inequality every day. As time goes on, we may become blind to new inequalities, or if we are lucky, have more revealed to us.

    Making a decision in favour of gay marriage will require the judiciary to ponder not just the question of equality but also the present and likely future state of societal values. You are asking them to make a decision which says that in essense the majority is misguided, and will in time come to see the error of its ways.

    I find this interesting on a philosophical and legal basis. This idea that the judiciary is given the power to negate the decision of the majority. That democracy is not the be all and end all. Perhaps you say that the constitution is a higher form of democracy – but the constitution has been amended numerous times. Anyway just a thought to ponder. When the majority are fools, should democracy be upheld? I know that this question has been pondered many times, but I don’t think anyone has come up with a satisfactory answer yet….

    Of course you know Liam that I support gay marriage whole heartedly. It’s wonderful to see people wanting to embrace an institution which many heterosexuals treat with disdain – an institution which I happen to think an important and wonderful one, just not one I would choose for myself!

  5. You’re absolutely right that my argument raises the question of democracy. Why should these justices, who are not democratically elected, make a decision that runs in the opposite direction of an overwhelming majority? As you say this is interesting on both a philosophical and legal basis.

    However, the function of the US separation of powers is to provide a comprehensive system of checks and balances. With regards to the judiciary we have an arm of government that is obliged to disregard politics, protect the constitution and revere precedent.

    Throughout the course of US history there have been times where this function has proven invaluable in extending democracy to a disenfranchised minority at the expense of the majority. Brown v. Board of Education being one of the more famous cases. In these cases the term ‘tyranny of the majority’ is of great relevance.

    Consistent to this tradition of the law protecting democratic values we now have another case testing the role of the judiciary.

    Here we have a case where the justices have to do their job i.e. interpret the constitution and respect precedent. In this particular case there is an tremendous need to respect both in the face of common rejection. And so be it if provokes more cases to be heard on the grounds of equality. That’s democracy right?

    The true virtue of law is that it is already there, we just need to interpret it correctly. Now you could say that how I interpret it is quite different to how you would interpret it, although here it is quite clear where the law should stand. It really is the majesty of democracy when we can have reason prevail over tradition and culture.

  6. Nice Site layout. Keep up the good work. Looking forward to reading more from you.

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