In related news, Butler Shaffer is puzzled as to why gay-marriage advocates “want to have the state certify [their] relationships with others” as opposed to just “perform[ing their] own ceremony of marriage without getting the state’s approval.”
The answer, obviously, is that the state imposes special burdens on couples who don’t marry in the approved manner. If, for example, you want to be able to visit your hospitalised spouse, or want to marry a noncitizen and not worry about their being deported, only a governmentally approved marriage will do.
It may be asked why civil unions, rather than something explicitly called “marriage,” wouldn’t be good enough for such purposes. Of course most opponents of gay marriages oppose civil unions too; but in any case, words matter. Suppose that all government documents used the n-word to refer to blacks, but didn’t otherwise treat them differently from anyone else. Wouldn’t blacks still have a basis for complaint? (I owe this point to Jacob Levy.)
“The answer, obviously, is that the state imposes special burdens on couples who don’t marry in the approved manner. If, for example, you want to be able to visit your hospitalised spouse, or want to marry a noncitizen and not worry about their being deported, only a governmentally approved marriage will do.”
Agreed. As I pointed out in my LRC post State Monopolization of Marriage Eviscerates Private Contract, which relates a horrifying story of a gay woman denied access to her dying partner’s last moments in a hospital.
As for the rest: if, as in my comment on your other post, the civil union provided ALL the benefits of marriage, then I see no problem. After all “same-sex marriage” or “civil union” is not the n-word, and the word “marriage” has a meaning.
Take another gedankenexperiment. Suppose there are two parallel statutes, one for hetero-couples, one for any other couple. The provisions are the same. But in the caption of the statute, it’s described as “H-marriage unions”
In the other, as “other-marriage unions.”
Would this be a problem?
Yes, the word “marriage” has a meaning. The question is, what determines that meaning? If meaning were determined solely by historical usage, then we would have to say that there simply are no marriages in the u.s. today, since marriage traditionally involved the legal subordination of the wife to the husband (and this feature was formerly thought so essential that relationships lacking that feature were dismissed as non-marriages for that reason: see here and here). But the fact that we continue to use the word “marriage” for relationships in which husband and wife are legal equals shows that we do not take historical usage as binding; instead we think that past views about what was essential to marriage can be mistaken.
I think the reasons for extending the concept to relationships of legal equals are equally good reasons for extending it to same-sex relationships, and that the state’s refusal to use the term “marriage” derives from a lingering sense that same-sex relationships are inferior. Since I don’t think they’re inferior, I think the state’s usage is discriminatory. It’s not a rights-violation by itself, but if one regards the state as committed to giving equal protection, then it shouldn’t discriminate in a way that marks homosexuality as inferior. Such word use isn’t as bad as the n-word, perhaps, but it’s bad for similar reasons. (Indeed, even having separate forms at all — even if they’re neutrally named — seems to embody heteronormativity and a bogus “separate but equal” approach to equal protection. We don’t have different names for same-sex and opposite-sex contracts in other areas.)
I’m not saying we are stuck with the meaning. I’m just saying there is no sinister intent in using a reasonable meaning of a word, descriptively, in a law.
“I think the reasons for extending the concept to relationships of legal equals are equally good reasons for extending it to same-sex relationships, and that the state’s refusal to use the term “marriage” derives from a lingering sense that same-sex relationships are inferior.”
I think there may be some of this. But also because it’s different–and it is different. In many ways. Maybe not all of them relevant differences.
” Since I don’t think they’re inferior, I think the state’s usage is discriminatory.”
That’s why I’m asking if you would say this if the state gave exactly the same rights to gay couples but simply didn’t put the word “marriage” in the caption of the statute. Because then it’s like you are saying it’s a violation of rights for the state not to literally use the right label. It just seems a stretch. The real complaint is in the enforcement of the relationship.
Your argument is not illogical. And I concede with Hasnas we cannot always find an objective interpretation of these artificial laws. I just think, as a lawyer, that the equal protection argument is almost as ridiculous here as it was in Bush v. Gore. It’s just a makeweight argument. And as is the due process argument.
But, … who knows what these things mean, really.
I’m just glad for the ruling. But it will probably be overturned in about 18 months, and stayed in the meantime.
“It’s not a rights-violation by itself, but if one regards the state as committed to giving equal protection, then it shouldn’t discriminate in a way that marks homosexuality as inferior.”
this has an appeal, I agree. But it just seems problematic–after all you could say the same for polygamous unions, right? Why stamp them as inferior? And I still think original intent plays a significant role; and determining the reaction of people at the time of the ratification to your proposed interpretation, can be illuminating if not dispositive. to me, it is obvious the ratifiers would give your interpretation a big belly laugh. They didn’t think what they were construing meant this. Yes, you can ague that the words mean what they mean, even if the ratifiers were not quite aware of what they were ratifiying-but then as Hasnas argue,s words do not always just mean what they mean. And the argument that the Constitution was (say) really against slavery, has always seemed like a disingenuous activist trick to me.
No, I specifically said it wasn’t a rights-violation. I do think it’s a violation of the equal-protection clause, though.
You’re pushing against an open door — I already said in the other thread that polygamous unions have as much claim to be recognised as monogamous unions do.
But a big part of the reason that Spooner and John Hasnas disagree about that is that Spooner is a natural rights theorist thinks there’s an objectively ascertainable matter of fact about moral reality and so that terms like “just compensation” refer to something definite that people can be wrong about, just as terms like “gold” do (so that legislative references to gold don’t refer to iron pyrites even if the legislators themselves mistake their hoard of iron pyrites for gold), whereas John is a skeptic about natural rights theory (except in its ersatz Hayekian version). Since I agree with Spooner rather than John about natural rights, and I also agree (mostly) with Kripke and Putnam about objective reference, I find the antislavery interpretation of the Constitution fairly plausible.
Roderick, understood. Right, I should have said equal-protection violation, not rights-violation. But I don’t see how the word used in the caption here would cause a violation of equal protection nor that any of the Framers would have thought so (and I think original understanding is at least of some relevance and weight).
Re polygamy: I of course as a libertarian agree with you. But I think that this argument is even more of a stretch, showing the weakness of this type of interpretation of the EP clause.
Maybe I’m thinking too much like a lawyer. I know now the typical legal arguments are made about these matters, and from that viewpoint the arguments you are making–that slavery was “really” illegal, that equal protection means you have to cover polygamy if you cover hetero marriage–seem like non-serious tricks–attempts to smuggle in a libertarian argument as a legal one. Basically, assuming that the Constitution “is” “really” a libertarian document. Seems like wishful thinking to me.
That said, I’m all for *making* these arguments before the critters–and if it works, fine.
Well, have you read The Unconstitutionality of Slavery? Whatever criticisms might be made of it, it’s hard to say he wasn’t thinking like a lawyer.
Well, the more extreme libertarian interpretations (be they correct or incorrect) will almost certainly never work because no state functionary is likely to embrace sweeping, radical, across-the-board restrictions on state power. But the more moderate versions of such interpretations (again, be they correct or incorrect) have a better chance. Making arguments in court is not my preferred strategy for social change — I think working within the political means is of only limited utility — but unlike some of my agorist and voluntarist comrades I don’t reject all such efforts out of hand as worthless or Unclean.
Roderick: Yes, I’ve read Spooner. I was not persuaded at all. I can’t recall if he is arguing like a lawyer or if it’s just a cover for his abolitionist wishful thinking (I think in any case it’s cool that he was still against the Civil War). But I’ve seen this all the time in lawyers’ briefs filed with courts: even if it’s lawyerly, you can tell an argument that is simply going for a hail mary. I think it’s the same thing in all the arguments you are making.
Agreed completely, of course.
I don’t either. And just to be clear: I am all for making these arguments, and even being dishonest and pushing them in a libertarian direction if possible.
But this is more like acting on a stage: going thru the state’s hoops just to get a result. Fine by me. But a danger of this is self-delusion, that you internalize the lies and wishful thinking–the strategy comes to represent truth in your mind and the wisfhul thinking becomes undue optimism and leads to the rah rah stuff which leads to compromise and sell-outism and pragmatism. You can see it with the libertrian centralists–even the so-called “anarchist” ones are afraid to use anarchy to describe themselves; they seem to think challenging in the courts is the only legitimate option (hence Randy Barnett’s opposition to Woods’s nullification); and they take the rhetoric and arguments they have to use in front of state judges, and use it outside the court even when arguing with other libertarians (people like Sandefur and Gura, say).
I prefer to frankly admit the constitution is illegitimate and where it is in fact unlibertarian, even if at the edges, or in court we can use some tricks of the legal system, to push it in the right way at the margins.
Yeah, but I don’t accept the realist theory of reference because it supports a Spoonerite approach to constitutional interpretation; on the contrary, I was already a convert to the realist theory of reference before I’d given any thought to constitutional interpretation. So I don’t think my adherence to the realist theory of reference can be the result of libertarian wishful thinking (though it may of course be the result of some other confusion).
I agree with you, of course, that it’s a mistake to slide from “this is the right libertarian way to interpret the Constitution” to “we have a realistic chance of achieving liberty through the courts simply by trotting out our brilliant theory of interpretation.” It’s like the people who argue that income tax is illegal, on the basis of technical arguments I’ve never tried to follow too closely; even if it were to turn out that they’re right, their suggestion that arguing for this in court is likely to be a successful strategy is a non sequitur.
As one of my colleagues likes to say: “Philosophers always think that winning means having the best argument. But having the best argument gets you nowhere when you’re arguing with someone who can win by saying no.”
In California, domestic partners aren’t denied hospital visitation, I don’t think. The differences between domestic partnership and marriage seem pretty trivial, but I’m just looking at the wikipedia article.
Anyways, does this equal protection argument apply the same to multi-partner relationships? It seems like it does.
What about marrying vs. domestically-partnering a non-citizen?
Looks like nope.
Why has the Gay community tried to convince the religious right that their definition of marriage is wrong/should not be the legal definition? You can’t convince them like that, and it’s arrogant to think you should be able to. Why haven’t supporters of gay marriage just drop the term marriage for all government documents? Let everyone have civil unions for two people(yes that does exclude polygamy, although it makes it less of a jump to convince people to include contracts for 3), and let each individual decide what they want the term marriage to mean. You could also change all laws apply to the term marriage, say civil unions. It’s not hard, the argument over who has the right definition is done, and gets government out of the world marriage, thus preserving the sanctity of it. Everyone who doesn’t want to control everyone else wins.
Most of the folks I’ve encountered in the gay community (*) aren’t interested in convincing the religious right of much of anything. Even if that were desirable, it doesn’t seem especially likely. What they are interested in is convincing some other groups of people that the religious right’s specific religious beliefs about marriage shouldn’t be given privileged legal standing.
(*) At least, the activist end of it, which is the main region of the gay community I’ve spent time in.
Well, you ask “Why haven’t…?” but the strategy and tactics that you’re suggesting here have already been suggested over the past several years by a lot of different people who support gay marriage, as well as by people who oppose gay marriage from a gay liberationist standpoint. (See for example Alisa Solomon, Terry J. Allen, Steve Swayne, Marcus Line, Alexander Cockburn, Betsy Brown, etc.) There are liberal versions of this (e.g., Solomon’s article) which turn on separation of church and state and call for a lot of existing legal privileges to be transferred from religious to civil institutions; and there are radical versions of it (e.g., Brown’s article) that cal for a lot of existing legal privileges to be abolished, by devolving the rights from couples to individuals, or to private associations that might or might not have anything to do with sexual coupling (e.g., might apply to “Boston marriages” or to best friends or any number of other relationships).
I happen to agree with these authors, and I think that this approach, especially in its radical version, is a good idea. But you should also be aware that what you’re proposing is not a simple one-off reform, but a radical and fundamental rewriting of nearly all existing American law. That’s why I like the idea; but it shouldn’t be surprising that many people who have pressing immediate concerns (like being able to be with the love of your life in her dying moments, or not constantly living in fear of deportation) might end up looking for quick fixes that can piggyback on existing social norms and legal protections for married couples. I think that’s regrettable in some ways — I think the search for political quick fixes actually often retards progress, because of the way it bogs us down in interminable political fights. But I’m not puzzled as to why people do it, or particularly sympathetic to the claim that it’s motivated by a desire to control others. It’s generally motivated by people having very serious real-world problems and wanting not to be treated like shit by local or national authorities.
Isn’t there also something really wrong if a non-married heterosexual partner might be denied access to their dying partners last moments. Yes, I know they could have married, but that’s a pretty serious club to use to scare people into marrying. Not everyone chooses to.
What about if an extremely close friend is denied access to a dying person in their last moments? Why are hospitals doing this denying anyway?
Judge Walker essentially found that the state of California was being discriminatory in its discrimination and that they had to make its discrimination less discriminatory.
The state should not be handing out permits to be married.
It’s weird that many of those opposing gay marriage for religious reasons uphold the right of the state to approve of a marriage. So State > God? Curious. Also, the very organization that they view as having legitimate reasons for marriage licensing is responsible for destroying a large number of marriages through welfare state practices, regulations, and military adventures abroad.