My marriage will always be better than your marriage

[muckefuck]

I haven't read extensively the commentary on the legal decision, but my initial impression is that Judge Walker may have overreached, leading to a possible bitter reversal later. I hope I'm wrong, so, you know, hurrah and everything, but I guess we'll see.

In any case, reading some of the dissenting opinions on Perry v. Schwarzenegger has got me wondering: Would it be constitutionally allowable to create a sort of "supermarriage" to satisfy those conservatives for whom the rational basis of civil marriage is reproduction first and foremost? Call it by whatever name you like--"moral union" or "reproductive partnership"--and write into the description that participants can only be one man and one woman with the intention of conceiving children. Additional restrictions could be included (say, along the lines of covenant marriage) in order to bring it closer to the ideal of religious marriage espoused by most Christian sects, but no extra privileges beyond those directly relevant to supporting the conception and nurture of children--if, indeed, even those.

Seems to me everybody wins: Those who believe that their intimate partnership just isn't special enough unless they can statutarily bar moral deviants from obtaining the same contract get what they want, and everybody else can have marriage.

Comments

[lhn.livejournal.com]

I don't think it really works from either direction. It presents the same separate-but-(un)equal problems as creating civil unions that give all the same privileges but can't be called marriages does. Are people fighting for same-sex marriage really going to be generally okay with creating a new Marriage First Class that they're barred from? Add in the straight couples who will find themselves excluded from the Real Deal.

For opponents, it still carries the same symbolic freight of diluting marriage of what they perceive as its unique meaning. As far as they're concerned, they had "marriage" first-- why would they agree to be the ones to give it up in favor of a seven-syllable phrase with no historical or religious resonance?

(Whether it's constitutional depends on the details-- it can't have an overt religious component, but it wouldn't necessarily have to. But it'd have to be done on the state level unless the feds want to do another power grab, so you'd get up to fifty-one different forms of supermarriage which could then be tested in the courts.)

I don't really see this as getting enough traction to affect the outcomes of the various referenda-- and certainly not quickly enough to make the court battle moot. And once the Supreme Court has ruled-- assuming it grants cert after the inevitable 9th Circuit appeal, but that seems likely-- the impetus for a compromise will likely be vastly reduced on one side or the other.

[cpratt.livejournal.com]

my initial impression is that Judge Walker may have overreached

You've read the decision itself?

[bunj.livejournal.com]

That sort of thing has already been suggested, only the names are "civil union" and "marriage." Plenty in the "traditional marriage" camp have no trouble with civil unions which have all of the legal benefits of marriage without the name. However, this compromise has been rejected (and rightly so, in my opinion) by most in the same-sex camp. There's something about the word "marriage" which both camps want to define their own way. I don't think "moral union" will go over any better than "civil union" did.

[muckefuck.livejournal.com]

Yep, I have. And I question whether the highest court in the land is really willing to go along with a decision which boldly declares that same-sex couples have a "fundamental right" to marry each other in part because gender distinctions are effectively obsolete. I think that will strike them as trying to alter the social consensus by judicial fiat.

Dale Carpenter over at the Volokh Conspiracy articulates some of the concerns that he and I share.

[muckefuck.livejournal.com]

No, it hasn't been tried, because the requirements for "marriage" (i.e. being opposite-sex and not too closely related by blood) are different than the requirements for the kind of more-exclusive compact that I'm proposing (and that the archconservative defenders of "traditional marriage" say they want).

[mlr.livejournal.com]

Why would introducing a 'supermarriage' category be any different than the status quo before Prop 8? Isn't the issue that marriage (and ALL that it confers) should be available to any couple regardless of sexual orientation?

I see someone else had the same thought.

[muckefuck.livejournal.com]

Were millions of heterosexuals up in arms when the category of "covenant marriage" was created? Did they scream and rant that the effect was an inexcusable deprecation of their marriage bonds?

[bunj.livejournal.com]

Some may want something that restrictive, but I don't think that the majority of those defending traditional marriage do. I think they want marriage to remain the way they define it: one man, one woman, and the option to conceive children. I just think your compromise will please no one. The fundamental problem is that both sides want to define what marriage is. Neither side will be happy with any other term.

[mlr.livejournal.com]

I had never heard this term before. It sounds to me like a religionist's definition of marraige trying to sneak in the back door.

[muckefuck.livejournal.com]

Precisely. Read up on it (link provided above) and come back to the discussion.

[lhn.livejournal.com]

They don't have to be up in arms, they just have to not support it. As has happened in 47 states since Louisiana first passed covenant marriage.

(And, of course, anything that's intended to facilitate same-sex marriage is going to get a lot more and more vocal attention than the covenant marriage movement ever did.)

[lhn.livejournal.com]

While there's obviously a religious undercurrent, the main thrust seems to have been to try to do something to reduce the divorce rate. To their credit, they tried to work on both ends of the problem, requiring counseling before marriage as well as before divorce, in addition to bringing back the idea of divorce for grounds.

Given that the number of people who went for it is tiny (2% of marriages in Louisiana, a quarter of one percent in Arizona) and self-selected, the effect on the overall divorce rate is probably impossible to isolate from noise.

But clearly it didn't capture the imagination even of religious conservatives. If it had hit some critical mass, it may be that more people would care, though it's hard to be sure.

[pklexton.livejournal.com]

I disagree. If there was overreach, it was in bringing the case in the first place. I think Walker did an excellent job of positioning the case as well as possible for appellate review. An appeals court is unlikely to be affected by overreach on the law - they'll just narrow or reverse the legal analysis to what they think the right answer is. What Walker did that was so impressive was his use of the factual record - which is what the appeals court can't touch. He actually made out a case for saying a ban on same sex marriage fails a rational relationship test - the lowest legal standard, but a very high bar from a factual perspective. The appeals court might say he applied the law to the facts incorrectly, but those are some awesome findings of fact, which in most cases cannot be reversed by an appellate court - they can only send the case back for retrial based on a different standard.

I don't get the argument for the covenant marriage analogy. To me it sounds like "OK, you all can use the 'whites only' drinking fountain, but we're going to create the super-white super-deluxe drinking fountain that is only available to Aryans."

[muckefuck.livejournal.com]

There's not really any appropriate racial analogy because there are no significant biological differences between races, and thus no functional difference between members of these races and/or pairings of them.

[pklexton.livejournal.com]

And yet, it was precisely because of the perceived differences between the races that for centuries interracial marriage was barred, until the Supreme Court (following some legislatures) decided that racial differences (such as they are) would no longer be legally meaningful. Once you decide that marriage is allowed for people who are not intending to procreate, I don't see what legally cognizable difference there should be between a same-sex and an opposite sex pairing - other than the perceived inherent moral superiority of heterosexuals, which - hopefully - we can decide is a notion that deserves no legal recognition whatsoever (indeed it deserves the opposite), just like racial superiority.

I don't know how many conservative heterosexuals would be satisfied with your solution - but I suspect very few. Their point seems to be that gays need to be excluded from using the word marriage. Period.

The problem I have with Dale Carpenter's view, as I understand it, is that it he denies any sort of fundamental right in this sphere. I understand his view is that gays should be able to marry, but they need to convince voters and legislatures, not activist courts. That's not a fundamental civil right, then. Just a simple right that could be taken away by a simple majority following demagogic fear-mongering politicians, like it was in California. In effect, not a right, but a privilege. That's why we have a Bill of Rights and independent courts with the power of judicial review: in certain spheres a minority needs to be protected from the majority.

I used to be among those who were reluctant to see this as a fundamental right. After all, I can't imagine our Founding Fathers intending a fundamental right of same sex marriage, and there are good common sense folk who bear us no ill will but *just aren't comfortable going quite that far.* But I really think about the issues discussed in Walker's opinion, I feel compelled to agree that - once you strip away the bigotry - there is no legitimate basis left for the distinction. Our Founding Fathers held a lot of beliefs that we reject today, because - like scientific progress - sometimes it takes time for people to figure stuff out, like which beliefs from our tribal past no longer stand up to reason.

I say kudos to Walker for having the guts to write this opinion. I fully suspect that his position will be narrowed, if not ultimately overturned, as it winds its way through the appellate process. Politically this is perhaps too big a pill for the Court to swallow, and too threatening to its legitimacy (that is whatever legitimacy it has left after Bush v. Gore and Citizens United). But from the perspective of reason and legal analysis, I think he reached the right result.

[lhn.livejournal.com]

On the other hand, it's arguable that the amendment process is the proper venue for establishing basic rights that we believe the Founders missed. That's how we enshrined, e.g., a fundamental right not to be enslaved into the Constitution, after the Founders created a system that permitted slavery. (The process also required a horrific civil war, but hopefully that's not on the table this time around.)

We still needed the courts and the legislature to act (a century late) to fully enforce the right of African-Americans to vote, etc. But the right itself wasn't decided into existence by the courts simply because judges believed it should be there.

Of course, it should have been written into the Constitution from the beginning. But since it wasn't, it had to be explicitly fixed. A Constitution that can always be reinterpreted to give the result the interpreter wants without changes to the text is essentially meaningless.

And after all, is a simple majority of justices, unconstrained by anything but their own opinions, really that safe a guard for fundamental rights? A Supreme Court majority decided Dred Scott, after all. There's a particular danger that if a result is shoved into an electorate that regularly and vocally makes clear it's not ready for it, it may last only as long as it takes for the opposition to pack the court with five justices who agree with them.

(Even if it doesn't work, the effort could bring us the sort of generation-long culture war, hardening of attitudes, and reduction of court nominations to litmus tests we got from, e.g., Roe v. Wade, which strikes me as less than desirable.)

That said, the case is on its way, and the Supreme Court will do what the Supreme Court will do-- we don't get a vote, by design. :-) So we'll see how it goes.

[pklexton.livejournal.com]

The amendment process is the proper process for amending the Constituion. Courts interpret the Constitution, including the Bill of Rights, and thereby create new constitutional rights all the time - such as the recent example in the Citizens United case in which the ("activist"?) Court said corporations have the same rights as human beings under the 1st amendment. Those rights can't be undone by popular vote or by Congress - they can only be outdone by a later Court, or a later amendment that says the Court got it wrong. We already have an Equal Protection Clause. The question is what does it mean. (For some reason it is still arguable whether gays have the same rights as straights; as far as I can tell because we are regarded as morally inferior.) And the Reconstruction Amendments aren't a great precedent; they were ratified while the South was under military occupation - as you say, hopefully not on the table this time.

The Constitution will always be reinterpreted as long as we have judicial review, which has been with us since almost the beginning. To say that that means the interpreter can reinterpret the Constitution to say anything the interepreter wants unconstrained by anything but their own opinions is a gross misrepresentation of Constitutional law, a "straw man" argument. The question is what are the parameters of the proper exercise of that power, not that the power doesn't or shouldn't exist. If the Court pushes things too far, there is always the threat of a court packing, a refusal by other branches of the government to enforce their rulings, or even revolution. This in reality does constrain the court, even though they always talk as though their decisions are arrived at by reason, concepts of justice and precedent.

[mollyc-q.livejournal.com]

This hetero found "Covenant Marriage" to be yet another attempt by some arch-conservative Christians to attain legal recognition for their self-importance and reinforce a notion of "rightful" explicit Christian dominance in the formulation of American law. Mir and I concur.

And as Ihn points out it never took off, Covenant Marriage was on radar but never really made the pressing political agenda because at about the same time DOMA became the primary policy push in those circles and stomping on other people is apparently an easier sell than complicating family law state by state by creating "tiers of legitimacy." I have to wonder if any marriage that needs stricter provisions is a good idea, or more to the point what it says about the two people who feel they need strict legal disincentive to divorce before they even get married.