The Circuit Court Ruling on Proposition 8
A three-judge panel of the Ninth Circuit Court of Appeals has ruled that California’s ban on same-sex marriage — enacted in 2008 in a popular vote on Proposition 8 — violates the constitutional right to equal protection. The court’s decision upheld a 2010 decision by former Judge R. Vaughn Walker, a Reagan-Bush appointee, that found marriage to be a fundamental right protected by the Constitution, and that the proposition “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Proponents of Proposition 8 will likely appeal the decision either to the full Ninth Circuit or directly to the Supreme Court.
The American Foundation for Equal Rights is the sponsor of the case, Perry v. Brown (originally Perry v. Schwarzenegger). Cato Institute chairman Robert A. Levy is co-chairman of AFER’s Advisory Board. He and co-chair John Podesta wrote in the Washington Post in 2010:
Nearly a century after the 14th Amendment was ratified in 1868, the Supreme Court unanimously affirmed that “marriage is one of the ‘basic civil rights of man.’ ” That 1967 case, Loving v. Virginia, ended bans on interracial marriage in the 16 states that still had such laws.
Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law…. The principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.
Levy and Podesta, along with AFER’s lawyers Ted Olson and David Boies, spoke at this Cato Institute forum. And Levy also wrote about the case in this New York Daily News column.
In this 7-minute video Levy, Podesta, Olson, and Boies make the case for equality in marriage law:
Gay Marriage in New York
In the Wall Street Journal today, Cato senior fellow Walter Olson praises the New York legislature both for passing a marriage equality bill and for including guarantees of religious freedom in the bill:
For those of us who support same-sex marriage and also consider ourselves to be right of center, there were special reasons to take satisfaction in last Friday’s vote in Albany. New York expanded its marriage law not under court order but after deliberation by elected lawmakers with the signature of an elected governor. Of the key group of affluent New Yorkers said to have pushed the campaign for the bill, many self-identify as conservative or libertarian. A GOP-run state Senate gave the measure its approval….
To their credit, New York lawmakers devoted much attention to the drafting of exemptions to protect churches and religious organizations from being charged with bias for declining to assist in same-sex marriages. Exemptions of this sort are sometimes dismissed as a mere sop to placate opponents. But in fact they’re worth supporting in their own right—and an important recognition that pluralism and liberty can and should advance together as allies….
Critics have charged that same-sex marriage will constrict the free workings of religious institutions and violate the conscience of individuals who act on religious scruples. Many of the examples they give are by now familiar….
Observe, however, that it isn’t the legal status of same-sex marriage that keeps generating these troublesome cases; it’s plain old discrimination law. Thus New York’s highest court ordered Yeshiva University, an Orthodox Jewish institution, to let same-sex couples into its married-student housing. But that ruling happened a decade ago and had nothing to do with last week’s vote in Albany. In the case of the wedding photographer ordered not to act on her scruples, New Mexico didn’t then and doesn’t now recognize same-sex marriage. While some of these rulings are to be deplored as infringements on individual liberty, they’re not consequences of the state of marriage law itself.
Also: Cato’s forum on the legal challenge to California’s Proposition 8, featuring Ted Olson, David Boies, John Podesta, and Robert Levy. And an earlier forum on gays and conservatism featuring Andrew Sullivan, Maggie Gallagher, and British Cabinet minister Nick Herbert.
Marriage and the Courts
In today’s Britannica column, I write about yesterday’s 44th anniversary of the Supreme Court’s Loving decision and its relevance to the current Perry v. Schwarzenegger (now actually Perry v. Brown) case. It includes videos from Cato’s recent forum, from the American Foundation for Equal Rights, and from the 1967 ABC News report on the Supreme Court decision. You really should watch that one.
I also note some of the objections to the Perry case:
When it comes to the Perry v. Schwarzenegger case, there are legitimate federalist and democratic objections. One might say that marriage law has always been a matter for the states, and it should stay that way. Let the people of each state decide what marriage will be in their state. Leave the federal courts out of it. Federalism is an important basis for liberty, and that’s a strong argument. There’s also a discomfiting argument that a Supreme Court decision striking down bans on gay marriage is undemocratic, that it would be better to let the political process work through the issue. Some people, even supporters of gay marriage, warn that a court decision could be another Roe v. Wade, with decades of cultural war over an imposed decision.
For a response, read the column.
The Constitutional Case for Marriage Equality
On June 12, 1967, the U.S. Supreme Court struck down bans on interracial marriage in more than a dozen states in the case of Loving v. Virginia. Today, the highest court in the United States may soon take on the issue of marriage equality for gay and lesbian relationships. Attorneys David Boies and Theodore B. Olson are hoping the case of Perry v. Schwarzenegger will further establish marriage as a fundamental right of citizenship. Also featured are John Podesta, President of the Center for American Progress, Cato Institute Chairman Robert A. Levy and Cato Executive Vice President David Boaz.
Watch the full event from which many clips were pulled here and Robert A. Levy’s presentation here.
Progress toward Marriage Equality
The Gallup Poll reports today, “For the first time in Gallup’s tracking of the issue, a majority of Americans (53%) believe same-sex marriage should be recognized by the law as valid, with the same rights as traditional marriages.”
Here’s the history of Gallup’s polling on the issue:
Gallup notes that the shift results from a substantial increase in support among Democrats and independents in the past year, but support among Republicans didn’t budge from 28 percent. The most striking number, though, is that support among young people 18-34 soared from 54 to 70 percent, mostly reflecting a shift among men, who are now almost as supportive as women.
The new poll comes just two days after Cato’s forum, “The Case for Marriage Equality: Perry v. Schwarzenegger,” featuring the prominent lawyers David Boies and Theodore Olson, who represent the plaintiffs in a lawsuit seeking to strike down California’s Proposition 8. Find video of the event here. The event also featured Robert A. Levy of the Cato Institute and John Podesta of the Center for American Progress, co-chairs of the advisory board of the American Foundation for Equal Rights, sponsor of the lawsuit. Read their Washington Post op-ed on the case.
Wednesday Links
- Next up for marriage equality: Perry v. Schwarzenegger. Please join us at 12:00 p.m. Eastern today as co-counsels for the plaintiffs Theodore Olson and John Boies join Center for American Progress president John Podesta and Cato chairman Robert A. Levy for a panel discussion on marriage equality, exploring legal and moral questions dating back to the landmark 1967 Loving v. Virginia decision that ended state bans on interracial marriage. If you cannot join us here at Cato, please tune in to watch a live stream of the event.
- “Republicans have an opportunity for a much more important debate, which will frame the election campaign next year.”
- In President Obama’s next speech, Cato director of foreign policy studies Christopher Preble hopes “that the president reaffirms the importance of peaceful regime change from within, not American-sponsored regime change from without.”
- What will former Massachusetts governor Mitt Romney’s next position on health care be?
- Like cleanliness next to godliness, so is democracy next to tyranny.
- The U.S. hit the debt limit–what’s next?
New Polls Show Support for Civil Liberties
At the Britannica Blog I write:
Many commentators have seen a shift to the right in American politics over the past two years — the reaction to spending, bailouts, and Obamacare; the rise in conservative self-identification in polls; the 2010 elections. But there’s another trend going on as well. I described it in 2009 as a “civil liberties surge.” And this week there’s new evidence.
A new study from the Pew Research Center for the People & the Press finds long-term growth in support for legal abortion, gun rights, marijuana legalization, and gay marriage.
The graphs on all these topics from Pew are pretty impressive, as is another one from the General Social Survey included in the Britannica post. I go on to note:
These new poll results should be no surprise. Part of the American project for more than 200 years has been extending the promises of the Declaration of Independence — life, liberty, and the pursuit of happiness — to more and more people. America is a country fundamentally shaped by libertarian values and attitudes. In their book It Didn’t Happen Here: Why Socialism Failed in the United States, Seymour Martin Lipset and Gary Marx write, “The American ideology, stemming from the [American] Revolution, can be subsumed in five words: antistatism, laissez-faire, individualism, populism, and egalitarianism.” If Herbert McClosky and John Zaller are right that “[t]he principle here is that every person is free to act as he pleases, so long as his exercise of freedom does not violate the equal rights of others,” then marriage equality and marijuana freedom are only a matter of time.
And none of these socially liberal results challenge the general perception of a conservative trend, as long as that trend is understood as a reaction to bailouts, takeovers, and other elements of “big government.” Americans continue to tell pollsters they prefer “smaller government with fewer services” to “larger government with more services.”
Romney and Huckabee, What a Choice
You know you’re really wrong when Mike Huckabee can call you out. But that’s the situation Mitt Romney finds himself in, as Michael Cannon points out below. Huckabee says Romney’s government-run health care plan with an individual mandate is a bad idea, Romney says he’s still proud of his plan, which is totally different from President Obama’s government-run health care plan with an individual mandate. But really, what can he do? In 17 years of seeking high political office, he is known for two things: changing his position on a surprisingly large number of issues, and his Massachusetts health care program. Which was of course the forerunner of Obamacare, as Michael Cannon and I pointed out in the video that Michael linked. So Romney is still defending a position I think we’ve already refuted.
Meanwhile, in speeches and interviews this week, Mike Huckabee continues to make the untenable connection between gay marriage and family breakdown that I discussed two weeks ago in the Los Angeles Times. Huckabee told reporters:
Huckabee opposes gay marriage on the grounds that, according to him, it destroys traditional families.
“There is a quantified impact of broken families,” Huckabee said. “[There is a] $300 billion dad deficit in America every year…that’s the amount of money that we spend as taxpayers to pick up the pieces because dads are derelict in their duties.”
But what’s the connection? As I wrote:
One thing gay couples are not doing is filling the world with fatherless children. Indeed, it’s hard to imagine that allowing more people to make the emotional and financial commitments of marriage could cause family breakdown or welfare spending….
Social conservatives point to a real problem and then offer phony solutions.
But you won’t find your keys on the thoroughfare if you dropped them in the alley, and you won’t reduce the costs of social breakdown by keeping gays unmarried and preventing them from adopting orphans.
One might add that, as Huckabee knows very well, rates of divorce and unwed motherhood soared decades before anyone started agitating for gay marriage.
If Huckabee and Romney are the Republican frontrunners, President Obama must be sleeping well these days.
Krauthammer Misreads History
Charles Krauthammer calls same-sex marriage “the most radical redefinition of marriage in human history.” Really? Some might say that ending “till death do us part” was more radical. And maybe ending the requirement that the bride promise to “love, honor, and obey.” And how about the end of polygamy? Polygamy was probably the most common marital system in the broad sweep of human history, but now it is virtually unknown in the Western world; indeed, ahistorical conservatives warn that allowing two people of the same sex to make a vow of marriage could lead to polygamy.
More currently, I would suggest that the truly radical redefinition of marriage is the revolution over the past generation in the idea that people should marry before they cohabit or have children. Barely a generation ago cohabitation simply wasn’t acceptable; now it is just assumed. Out-of-wedlock pregnancy is celebrated on the cover of People and no one seems to much care. In 2009, for the first time, more 25- to 34-year-olds were unmarried than married. A writer as smart as Krauthammer should be able to see that that gay liberation and gay marriage are a product, not a cause, of the unprecedented redefinition of sex, marriage, and childrearing.
But like socially conservative politicians, Krauthammer is not about to confront his friends, colleagues, and fans by denouncing that radical redefinition of marriage. Sensing discomfort with rapid social changes, he shouts “Look over there!”
Reducing the incidence of unwed motherhood, divorce, fatherlessness, welfare, and crime would be good for society. But it’s not easy to figure out what to do. That’s why social conservatives point to a real problem and then offer phony solutions.
What Do Social Conservatives Want?
Social conservatives talk about real problems but offer irrelevant solutions. They act like the man who searched for his keys under the streetlight because the light was better there.
Social conservatives tend to talk about issues like abortion and gay rights, stem-cell research and the role of religion “in the public square”: “Those who would have us ignore the battle being fought over life, marriage and religious liberty have forgotten the lessons of history,” said Rep. Mike Pence (R-Ind.) at the Values Voter Summit.
But what is the case for social conservatism that they’ve been making at the summit and in recent interviews?
- Mike Huckabee: “We need to understand there is a direct correlation between the stability of families and the stability of our economy…. The real reason we have poverty is we have a breakdown of the basic family structure.”
- Jim DeMint: ”It’s impossible to be a fiscal conservative unless you’re a social conservative because of the high cost of a dysfunctional society.”
- Rick Santorum: “We can have no economic freedom unless we have good, virtuous moral people inspired by their faith.”
Those are reasonable concerns, but they have little or no relationship to abortion or gay marriage. Abortion may be a moral crime, but it isn’t the cause of high government spending or intergenerational poverty. And gay people making the emotional and financial commitments of marriage is not the cause of family breakdown or welfare spending.
When Huckabee says that “a breakdown of the basic family structure” is causing poverty — and thus a demand for higher government spending — he knows that he’s really talking about unwed motherhood, divorce, children growing up without fathers, and the resulting high rates of welfare usage and crime. Those also make up the “high cost of a dysfunctional society” that worries DeMint.
But take a look at the key issues of the chief social-conservative group, the Family Research Council — 7 papers on abortion and stem cells, 5 on gays and gay marriage, 1 on divorce. Nothing much has changed since 1994, when I wrote in the New York Times:
The Family Research Council, the leading “family values” group, is similarly obsessed. In the most recent index of its publications, the two categories with the most listing are “Homosexual” and “Homosexual in the Military” — a total of 34 items (plus four on AIDS). The organization has shown some interest in parenthood — nine items on family structure, 13 on parenthood and six on teen pregnancy — yet there are more items on homosexuality than on all of those issues combined. There was no listing for divorce. (Would it be unfair to point out that there are two items on “Parents’ Rights” and none on “Parents’ Responsibilities”?)
Back then, conservatives still defended sodomy laws, as Santorum continued to do as late as 2003. These days, after the 2003 Supreme Court decision striking down such laws, most have moved on (though not the Montana and Texas Republican parties). Now they just campaign against gays in the military, gays adopting children, and gays getting married.
Why all the focus on issues that would do nothing to solve the problems of “breakdown of the basic family structure” and “the high cost of a dysfunctional society”? Well, solving the problems of divorce and unwed motherhood is hard. And lots of Republican and conservative voters have been divorced. A constitutional amendment to ban divorce wouldn’t go over very well with even the social-conservative constituency. Far better to pick on a small group, a group not perceived to be part of the Republican constituency, and blame them for social breakdown and its associated costs.
But you won’t find your keys on Main Street if you dropped them on Green Street, and you won’t reduce the costs of social breakdown by keeping gays unmarried and not letting them adopt orphans.
Cal Thomas Fulminates against Freedom
Cal Thomas, who bills himself as “America’s #1 nationally syndicated columnist,” rose to fame as the vice president of Jerry Falwell’s Moral Majority in its heyday, though you won’t find that fact in any of his official biographies. But you could figure it out by reading his columns. In his latest, on the California gay marriage decision, he ranges from factual inaccuracy to a revelation of just how reactionary and authoritarian he really is, to a really striking biblical citation.
He starts by denouncing the “decision by a single, openly gay federal judge.” Not true. Judge Vaughn Walker may be gay, but he has never said so. And Salon magazine demonstrates that any such “evidence” is extraordinarily thin. So this is an extraordinary statement by a man who calls himself a journalist of 40 years’ standing. Not to mention an offensive suggestion that gay people shouldn’t serve as judges. Thomas went so far as to call former attorney general Ed Meese, who recommended Walker to President Ronald Reagan, to ask how such a thing could have happened, and Meese assures him, “There was absolutely no knowledge, rumor or suspicion” of Vaughn Walker being a homosexual at the time of his nomination by Ronald Reagan. Well, thank God. You’d hate to think that Ronald Reagan would have put an accomplished Republican lawyer on the federal bench if he’d been a homosexual.
Thomas goes on to complain that this (not) “openly gay federal judge” has struck down “the will of 7 million Californians.” Well, yes. Of course, 6.4 million Californians voted the other way, so I guess on net he struck down the will of 600,000 Californians. And that’s what judges do when they strike down unconstitutional laws. The Supreme Court in Brown v. Board and Loving v. Virginia “struck down the will of tens of millions of Americans.” Libertarians and conservatives asked the Court in the Kelo case to strike down the duly enacted eminent-domain laws of Connecticut.
California’s Gay Marriage Ban Lacks a Rational Basis
I haven’t even begun to dig into Judge Walker’s 138-page (!) opinion that strikes down Proposition 8 on both due process and equal protection grounds, but here are three key excerpts. First, the conclusion that government lacks a “rational basis” for preventing same-sex couples from marrying:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.
Then the equal protection conclusion:
Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
And finally the due process conclusion:
As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” [citation omitted] Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
In short, the court found none of the government’s asserted interests — including tradition, moving slowly on social change, and promoting different-sex parenting — to be “legitimate.” This is obviously a big deal and will be appealed – and no gay marriages will be allowed until the appellate process will have run its course (most likely up to the Supreme Court). Currently, same-sex couples can only legally wed in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.
Cato’s chairman Bob Levy, also co-chair of the advisory board to the American Foundation for Equal Rights (which sponsored the suit) had this to say:
The principle of equality before the law transcends the left-right divide that so often defines issues in this country. Today, people from across that divide came together to fight a law that cut to the very core of our nation’s character. Prop. 8 attempted to deny people an indispensable right vested in all Americans. This Judge and this Court bravely confronted wrongful discrimination and came down on the right side – defending and enforcing equal protection, as demanded by the Constitution.
I too think this was the correct decision — reserving, of course, the right to criticize parts once I’ve done more than skim it — though I fear it will poison our politics in a way not seen from a legal decision since Roe v. Wade. Roe v. Wade is not what today’s ruling should be compared to, however — both because this was only one district judge and because Roe v. Wade was a tortured fabrication of constitutional law that no legitimate constitutional scholar really defends (not even Justice Ruth Bader Ginsburg). I would liken it more to one more step in the civil rights movement, giving all Americans equality under the law. If you want a court case to compare it to, try Loving v. Virginia (which struck down bans on interracial marriage).
I should also add that this all could have been averted if government just got out of the marriage business entirely: have civil unions for whoever wants them — which would be a contractual basket of rights not unlike business partnerships – and let religious and other private institutions confer whatever sacraments they want. If the state provides the institution of marriage, however, it has to provide it to all people.
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