A New Year's Reprise

You can't beat a winning combination: a boy and his dog, peanut butter and jelly, and a fruit and his fly.

Yes, Anderson Cooper and Kathy Griffin will be ringing in the new year on CNN again. Just to remind those of you who didn't catch last year's hilarity, check it out below:

Key moments:

2:40—Kathy: Is [Britney Spears] still hot to guys? Anderson: I, well, uh...

4:55—Newsbabe holds up pic of Anderson's face on a popcicle stick, alluding to this magazine cover:

Check your local listings for all the fabulosity!

Update: and they didn't disappoint. Check out this little gem:

Black Gay is Beautiful*

It's been a while since I watched this, but I couldn't let Jon Stewart's takedown of Mike Huckabee go by without comment:

The Daily Show With Jon StewartM - Th 11p / 10c

Mike Huckabee Pt. 2

Barack Obama Interview
John McCain Interview

Sarah Palin Video
Funny Election Video

Specifically, I want to talk about the colloquy starting around 3:40 of the clip, where Jon Stewart says:

Religion is far more of a choice than homosexuality . . . talk about a lifestyle choice! That is absolutely a choice. That is absolutely a choice. Gay people don't choose to be gay.

On one hand, Jon's absolutely right. Being attracted to someone of the same sex is not a choice. However, I find the statement "it's not a choice" to be profoundly disempowering. The statement is a plea for mercy rather than a demand for respect. It implies that gays would be straight if they could, but they can't, so you should take pity on them. I think that this post makes the argument better than I can:

The case for/against gay marriage is hung-up on this idea of choice—i.e. we should frown on gay marriage because it's a deviant lifestyle. Or we shouldn't frown on it because it isn't a lifestyle, it's a biological fact. This is where the comparisons with race come in. But I always hated this argument. Whenever people say, "You should not discriminate against people because they didn't chose to be black," I hear the mild tones of wild liberal condescension.

Implicit in that logic is a kind of judgment, the notion that if I could choose, I obviously would choose to be white. But what if I just like being black? What if I could choose and would still choose black? Ditto for homosexuality. So what if you do choose to be gay? I understand that a lot of the science says you don't, but why do we accept this implicit idea that heterosexuality is, necessarily, what everyone would chose?

I'm not trying to minimize the bias and trauma that must come from being out, but a basic extension of humanity, a belief that those who aren't like me actually are like me, says that to be gay has to be more than coping with living beneath the boot of the ignorant. It's always about more than getting your ass kicked, no? What if you actually love the "more than?" What if it is who you are and what you choose?

Don't get me wrong, I'm not trying to say that it isn't important to educate the public that orientation is an inborn characteristic. I think that people who realize the immutability of orientation are more likely to support gay rights. However, as true empowerment, sexual orientation must be viewed through a different prism than just whether it's a choice or not. Rather, the question is whether one's identity, choice or not, is worthy of respect. In that way, orientation needs to be viewed as religion is viewed. Religion is subject to heightened scrutiny by the legal system not because it is immutable, but rather because it is an integral part of one's identity and "it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment." In other words, even if it were a choice, it would be a legitimate choice to make.

* This is not to say that Black isn't beautiful--it is.

No matter how good your Christmas presents are...

They will never match these. My personal favorite:

Strauss v. Horton, part IV: Why Footnote Four still matters

In a previous post, I asserted that while a fundamental right could be abrogated by constitutional initiative, a constitutional initiative that seeks to legislate against a suspect class would not be valid. I provided little explanation and said all would be explained on Friday. Well, it's Friday, and here's your explanation.

The test for determining whether a constitutional initiative is valid is whether it alters the fundamental structures of government. This not only refers to the allocation of powers between the branches of government and the allocation of powers between federal and state government (to the extent that state constitutional law can determine that—see Raven v. Deukmejian), but also the fundamental principles of republican government. One of these principles is that there should be protection of the rights of the minority against the majority. This protection is necessary to protect the integrity of the democratic process. Its foundational nature is expressed in footnote four of the U.S. Supreme Court's decision in United States v. Carolene Products Co. (footnotes omitted):

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

This footnote set the standard for heightened scrutiny of government legislation in the modern judiciary. The Court identifies three subjects of heightened scrutiny: substantive Constitutional rights, restrictions on the political process, and class legislation dealing with race, religion, or "discrete and insular" minorities that do not have the power to protect themselves through regular political processes. The difference between fundamental rights and suspect class status is the difference between the first paragraph and the third paragraph of Footnote Four. Constitutional rights are the people's substantive guarantees of freedom against oppressive legislation. They apply equally to all people. The Court gave these rights special status because of their inclusion within the Constitution. Suspect class status, on the other hand, is a protection not of a substantive rights, but the very integrity of the political system itself. Professor Jack Balkin explains:

According to the logic of the footnote, certain groups are shut out of the democratic process, relegated to the periphery. They are, to use Professor Brilmayer's expression, "insider-outsiders"—persons subject to the power of the political community yet excluded from participation within it . . . . Stone's very choice of words in the third paragraph—"discreteness and insularity"—connote the sense of being closed off from the political process, and (from a less sympathetic standpoint) excluded as impurities that are falsely believed to threaten a homogeneous body politic. Because the majority seeks to keep itself pure, it excludes the pariah from the political bargaining table, banishes the scapegoat to the periphery.

When a court declares a group to be a suspect class, it isn't saying that the class deserves more substantive rights than another class. Rather the court acknowledges that this is a group entitled to higher procedural protection in the political process. Because this class has outsider status based on their perceived otherness rather than any concrete evidence of relevant difference, they are vulnerable to legislation against them and lack political power to protect their rights through the political process. Therefore, any attempt to legislate against them as a class is subject to a more rigorous procedure: a showing of a compelling government objective and that the legislation is narrowly tailored to accomplish that objective.

Suspect class status is a procedural protection designed to protect the functioning of our republican system of government. Any attempt to legislate against a suspect class by means of constitutional initiative would amount to a change in the fundamental structure of government, and would be invalid.

Because it's Christmas

No substantive post today. Instead, enjoy these videos, compiled courtesy of Andrew Sullivan:

A classic to start things out:

Just in case you hadn't had enough sugar this Christmas:

When I was growing up I heard rumors about this, but I never really believed it existed.

Your daily LOLcat:

And because no video montage would be complete without him:

Broccoflute

The name says it all:

Strauss v. Horton, part III: Oregon Trail Edition

A lawsuit is very much like a game—there are players, referees, rules, tactics, strategies, and rewards. It appears from The State's brief in Strauss v. Horton,¹ the case determining the validity of Prop 8, that their game of choice is Oregon Trail. rather than go for an argument that is established by text and case law, the State has decided to blaze a new path.

The State's analysis of the validity of Prop 8 begins with the question of whether Prop 8 constitutes a revision of the California Constitution. It correctly articulates the standard for a revision as whether the provision "can be characterized as a change in the fundamental structure or foundational powers of California Government" (p. 28). It then undertakes a thorough and useful analysis of the relevant case law and concludes that Prop 8 is not a revision. The State gives two reasons for that conclusion: first, it argues that there is ample precedent for overturning fundamental rights through the initiative process. Second, the State argues that to rule that provisions against suspect classes are not subject to the initiative process would require the court to look outside of the four corners of the provision to determine its validity. It states that "If a court is confronted with an initiative addressing a right not yet deemed fundamental or a classification not yet deemed suspect, that court would find it extremely difficult to prevent the electorate from voting on the initiative or to invalidate the initiative post-election." (pp. 44-45). The court, therefore, would be limited under Petitioners' theory to those rights and suspect classes that are clearly defined by prior case law. The State concludes that "such a rule raises the possibility that the judiciary might appear to insulate its rulings from the initiative process by deeming certain rights as fundamental or certain classifications as suspect rather than deciding constitutional questions on narrower grounds." (p. 45).

The first argument is true, for what it's worth. I have never found the fundamental rights argument all that convincing in the first place. Fundamental rights are extrapolated from Constitutional common law, and just as legislation can amend the common law, so constitutional amendments should be able to amend constitutional common law.

The State's second argument is very sophisticated, but ultimately wrong. Limiting the court to suspect classes that are already declared is not a flaw in Petitioners' argument—it's the basis of the argument. As I mentioned earlier, the question on a revision is whether there is a change in the fundamental structure of the government. The relationship between government and the people is a part of that fundamental structure. While amending the constitution to legislate against a suspect class is a fundamental change in the structure of government,² there can be no change in the government's relationship with a class of people if legislation against that class is not already constitutionally suspect. In other words, you can't take away something that a person never had in the first place.³

Additionally, the argument that Petitioners' test would lead to the "appearance" of making rulings on broader grounds than necessary strikes me as disingenuous. This is not a real legal argument; it is a political one. However, what the argument likely means is that the Petitioners' test incentivizes broader constitutional holdings. Again, this is a feature, not a bug. Judicial minimalism is not constitutionally required, and in many circumstances, it is undesirable because it leaves the state of constitutional law unsettled. To the extent that the State is right (and I think that the effect would be marginal at best), this seems like it encourages the Court to actually interpret the state constitution and provide guidance to lower courts.

The State continues in its analysis by looking at the question of separation of powers. The state concludes as I did that the only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision, and that it isn't a very good argument. But this analysis is what makes their final argument so puzzling. The State spends 25 pages arguing that even if Proposition 8 is an amendment, that the court should strike it down because it abrogates fundamental rights without a compelling interest. In the next 25 pages of argument, nowhere does the state give any textual basis for the court's authority to strike down an amendment to the constitution on those grounds. Rather, it argues that rights protected by Article 1 of the California Constitution have a privileged status and were intended to be inalienable by the framers. Further, the initiative process was not intended to apply to article 1 rights. As a result, the court should only allow an amendment to article 1 protections when that amendment would survive strict scrutiny.

This test is as unsupported by existing case law and the text of the constitution as it is unnecessarily confusing. It would be the legal equivalent of traveling from Los Angeles to San Fransisco by going through Denver, if there were no roads connecting Los Angeles and Denver. First, the idea that there are extratextual limits on how a constitution can be amended goes against the principle of separation of powers and constitutional government. This interpretation would give the court not only the power to interpret the constitution, but also to prevent the people or the legislative branch from amending that document. It also implies that the courts have access to a higher, unwritten and unamendable law that supercedes the constitution, an unacceptable conclusion. Because the constitution is the supreme law of the state, the only legitimate restrictions on the amendment process are procedural. Procedures must be within the text and must be clearly expressed.

The State's argument is doubly mystifying because all of its arguments fit so well onto the amendment/revision framework. The very fact that the revision/amendment distinction exists is evidence that the framers wanted some changes to be subject to more than a majority vote. That the framers described Article 1 rights as inalienable is also evidence of their special status. Therefore, it would make sense to argue that these provisions, read in tandem, require restrictions to article 1 rights to go through the revision process rather than the amendment process. Rather than argue the application and extension of a clearly established procedure for overturning prop 8, the State decided to play their own version of Oregon Trail. It shouldn't be surprised when their argument dies of cholera.

--------

1. I covered the Petitioner's argument here and discussed some of the political pressures regarding the decision here.

2. But didn't I just say that fundamental rights could be changed by initiative? The distinction is something that requires its own post. Tune in on Friday.

3. Am I saying that if Prop 8 was enacted before in re Marriage Cases that it would have been legitimate under the California constitution? Yes, I am.

If you need a last-minute Christmas gift

...I can't help. However, if you want to be irresistible for your New Year's Eve party, you have two options:

A: Hamburger-scented body spray (not kidding, click the link and prepare to be horrified); or

Urban Humanity. Check out their clothing designs for your next night out. A few examples:

If only in my dreams...

Just a reminder to keep the troops in your thoughts and prayers this holiday season.

Here I sit, broken hearted...

While i was Christmas shopping, I noticed something that I hadn't seen in a while: bathroom graffiti.

This would be no big thing for most people, but I hadn't seen any for quite a while. BYU naturally erased any graffiti that appeared on bathroom walls immediately. However, when I was doing my undergrad, I had the opportunity to see many a stall covered with graffiti. From classic poems to offers of goods and services to political debates, bathroom stalls were always a source of entertainment and fascination to me.

Apparently I'm not the only one. Latrinalia (apparently bathroom graffiti has a technical name—who knew?) has been studied by anthropologists and archaeologists. apparently graffiti has been found in restrooms in Pompeii, and the content of that graffiti was basically the same as it is now. In fact, the Romans used to revere Venus Cloacina as goddess of the Roman sewers—prayers to her were in the form of rhymed verses.

I had a college professor who, only half-jokingly, said that bathroom graffiti was a cradle of true democracy. He likened it to the graffiti on the Berlin Wall--a place where vulgar and lofty ideas are displayed side by side, and the censor's paintbrush only provides a fresh canvas. I'm not sure about all of that. I just find myself entertained by statements that have later been altered by subsequent users in a series of ever funnier edits. I wonder whether anyone has actually called the phone number carved into the plastic of the toilet paper dispenser. And I take solace in the fact that even though most poets write in blank or free verse, the shithouse poet will make sure that his poems rhyme properly.

Götterdämmerung

If you're like me, you don't have time to see every movie that comes out. So it's nice that I can read the abridged version of Twilight so I can converse with the cool kids.

Some highlights:

KRISTEN STEWART
Hey, where did you go? Because you are exceedingly mean to me, I find myself attracted to you.

ROBERT PATTINSON
Sounds like textbook daddy issues, you fat cow.

KRISTEN STEWART
(swoon)

ROBERT PATTINSON
You have a bright career as a stripper ahead of you.

* * *

KRISTEN STEWART
Wow, you guys are so close. What keeps this family together so well?

PETER FACINELLI
Funny you should ask. Let me tell you about Count Joseph Von Smith. One day a vampire named Moronula appeared to him and told him to find these golden stakes buried in a coffin...

* * *

ROBERT PATTINSON
So, the next generation of young women are currently flocking to see a female lead starring in a movie by a female director based on a bestselling book by a female author, and in this movie the main character wants to become completely submissive and self-sacrificing for a male.

KRISTEN STEWART
I love you. Put a baby in me.

For more abridged screenplays of your favorite movies, click here (the Indiana Jones script is really good).

Footnote 11 for the 21st century?

In law school, became intimately acquainted with footnotes: reading them, writing them, and editing them. This post is about one footnote that changed the course of American History. The U.S. Supreme Court's opinion on Brown v. Board of Education includes the following:

To separate [black schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.¹¹

This footnote referred to the work of Kenneth and Mamie Clark in their famous doll studies:

With his wife, Clark continued the investigations into the effects of discrimination on black schoolchildren. One of their major tools was a test that involved showing the children four dolls that were identical in every respect except skin color. Two of the dolls were white; two were painted brown. After determining at the outset that the children correctly identified which doll was white and which represented a black person, the Clarks gave several instructions, including requests that the children hand over the doll they "like best," "like to play with" and is a "nice color." Other questions were variations on which doll "looks bad."

They . . . found that the black children, even those as young as 3, clearly favored the white dolls and rejected the brown ones . . . . Clark said he not only was surprised by the degree of self-rejection black youngsters exhibited but also deeply moved. "Some of these children, particularly in the North, were reduced to crying when presented with the dolls and asked to identify with them," he told Kluger. "They looked at me as if I were the devil for putting them in this predicament. Let me tell you, it was a traumatic experience for me as well."

This study had a large effect on the Court. As much as separate but equal seemed tenable in theory, studies showed that separate was not equal in practice.

Fast forward 60 or 70 years. I have previously explained why civil unions and domestic partnerships constitute separate but equal status for same-sex couples, and why this status perpetuates a second-class status. A report (.pdf) released by a New Jersey commission has found that civil unions, even when given equivalent legal status with marriage, "has failed to fulfill its promise of equality." The whole report is worth a read, but let me outline some of the problems that the commission has found with civil unions:

Spousal Benefits

Companies that create their own insurance plan are governed by federal law rather than state law. Since federal law does not recognize same-sex unions of any kind, these companies are not required to offer health benefits to the partners of gay employees. "[C]ompanies covered by ERISA, which comprise an estimated 50 percent of all companies in New Jersey, have an option, rather than a requirement, to offer equal benefits under the state’s Civil Union Act. Many companies are not exercising that option, even if State law, as is the case in New Jersey, provides that spouses and civil union partners are entitled to identical treatment." This differential treatment is common in states with civil unions such as New Jersey and Vermont.

However, Massachusetts has a much lower incidence of companies refusing to cover same-sex partners, notwithstanding the fact that these companies are under no more obligation to cover same-sex partners than those in New Jersey. The difference, the commission concludes is that

employers also understand that without the term "civil union" or "domestic partner" to hide behind, if they don't give equal benefits to employees in same-sex marriages, these employers would have to come forth with the real excuse for discrimination. Employers would have to acknowledge that they are discriminating against their employees because they are lesbian or gay . . . . Therefore, the existence of ERISA makes it all the more important to change the nomenclature of civil unions to marriage. As we've seen time and again in Massachusetts, the word "marriage" has great persuasive weight in getting companies to offer benefits notwithstanding ERISA.

Emergency and Medical Care

The general public is largely unaware of the rights and responsibilities surrounding civil unions. This creates impediments to exercising spousal rights and privileges as authorized by law.

A common theme in the testimony gathered by the Commission was that while marriage is universally recognized by the public, civil union status must be explained repeatedly to employers, doctors, nurses, insurers, teachers, soccer coaches, emergency room personnel and the children of civil union partners . . . . [The commission heard testimony] regarding medical personnel, school officials and government workers who denied access and decision-making authority to civil union partners, either initially or completely, because of a lack of understanding of the rights that flow from civil unions. Many witnesses said they would not have encountered the same level of resistance, or no resistance at all, had they been able to identify themselves as married.

In general, the public understanding seems to be that civil unions are not marriage, and from that they infer that rights and responsibilities must be different as well.

The Poor and Children

The disparity in treatment between married couples and civilly united couples affects the poor disproportionately. These are the people who can't afford to have legal documents drafted for them, and who can least afford the denial of health insurance.

Children of same-sex couples are also acutely aware that their parents' status is less than that of their peers:

An attorney and partner in a small law firm in Springfield testified about a family discussion in which his partner’s young nephew, to whom he is godfather, asked his mom: "If you and daddy are married and Uncle Timmy and Aunt Nancy are married and Aunt Debby and Uncle Bruce are married, why can't Uncle Bob and Uncle Chris get married?" Lucas' mother told him "Because it's against the law." Lucas' reply was, "Does that mean they're criminals, mommy?"

While this study is ongoing, it appears from the data gathered so far that the public perception of civil unions for same-sex couples is that they are not equal to marriage, and so they act accordingly. This is not surprising from a common-sense perspective. We intuitively expect things with different names to be different, and we will assume they are different until thoroughly convinced otherwise. Calling a same-sex union a civil union or domestic partnership is a signal to the general public that the government is being forced to give rights against to gay citizens against its will, and so will not fully embrace them like they would with "normal" citizens. As the commission noted, "relatives, medical caregivers, and individuals in positions of authority take cues from the government's decision to place same-sex couples outside of the institution of marriage." Segregation of same-sex couples out of marriage, while symbolic in nature, has substantive effects on the equal treatment of gay citizens.

Quis custodiet ipsos custodes?

Check this out:

Bradley Ralko has more here:

To clarify just a bit, according to Cooper, there was nothing illegal going on the bait house, just two evergreen trees and some grow lamps. There was no probable cause. So a couple of questions come up. First, how did the cops get turned on to the house in the first place? Cooper suspects they were using thermal imaging equipment to detect the grow lamps, a practice the Supreme Court has said is illegal. The second question is, what probable cause did the police put on the affidavit to get a judge to sign off on a search warrant? If there was nothing illegal going on in the house, it's difficult to conceive of a scenario where either the police or one of their informants didn't lie to get a warrant.

Lest anyone get the wrong idea, I have the deepest respect for law enforcement. My brother's a cop and my roommate is a prosecutor. Rooting out the use of illegal tactics and corrupt police officers preserves and protects the moral authority that law enforcement needs to be effective.

As much as I hate § 1983 suits, this is one that I wish I could assist on.

If you haven't watched it yet

See more Jack Black videos at Funny or Die

Proposition 8: The Musical.

What Is Traditional Marriage?

A point often made by those opposing same-sex marriage is that they are supporting "traditional marriage." This phrase is at once ideologically weighty and so vague as to be meaningless. The term implies that marriage has existed unchanged throughout time. However, a look at history tells us that marriage has evolved throughout the centuries in response to other changes in society.

For most of recorded history, the institution of marriage was not primarily about love, or about the union of a husband and wife, or even about the rearing of children. Rather, marriage was primarily an economic union used to unite families and to create a work force. In primitive hunter-gatherer societies where survival depended on the cooperative effort of a large group, marriage tended to be a way of forging alliances between bands and extending cooperation and sharing resources beyond the immediate group. As technology improved, societies were able to obtain surplus resources and become more sedentary. This, in turn, encouraged the development of complex rules of organizing society, including the private ownership of property. Marriage was no longer viewed as a way of pooling resources, but as a way of consolidating them. With such high stakes, the emotional preferences of the individuals entering the marriage were not viewed as important concerns, and those without property were often not viewed as eligible for marriage.

This conception of marriage survived throughout the ancient and medieval eras. A major shift in the economic and ideological foundations of society created a corresponding shift in what marriage meant. The Eighteenth century saw the rise of the market economy and its attendant intellectual revolution, the Enlightenment. The rise of wage labor made young people less dependent on their families and their property, allowing them to be more independent in their decisionmaking. This independence allowed children to break free from tradition and make their own life choices, including what trade to engage in and whom to marry.

The ideological shift toward individual rights changed people’s expectation about relationships as well. As philosophers such as Locke were rejecting the divine right of kings, women questioned the absolute rule of husbands, instead arguing that "marital order should be based on love and reason, not on a husband’s arbitrary will."¹ The change in society was summed up by John Stuart Mill:

What is the peculiar character of the modern world—the difference which chiefly distinguishes modern institutions, modern social ideas, modern life itself, from those of times long past? It is, that human beings are no longer born to their place in life, and chained down by an inexorable bond to the place they are born to, but are free to employ their faculties, and such favourable chances as offer, to achieve the lot which may appear to them most desirable.²

As the Enlightenment largely discounted marriage as an institution based on extended family property networks, further economic and cultural shifts changed the purpose and meaning of marriage as an institution. As the industrial revolution shifted the means of production from agriculture to manufacturing, it changed the incentives for bearing and rearing children. Children were traditionally laborers, working on the farm from as early as age four. However, "[a]s people flooded from rural villages to cities, an uninterrupted flow of children stopped being a labor boon and became a poverty guarantee."³ Child labor laws further recast children as economic liabilities rather than labor assets.

The economic need to limit childbirth created a demand for, and the removal of the stigma against, birth control. The decoupling of marriage and childbirth changed the nature of marriage by making women more independent economically as well as focusing more attention on the intimate bond between couple rather than the duties of care for children. Sex within marriage had become an end in itself—"the attainment of that spiritual, mental, and bodily unity with the person beloved."⁴

Another economic change was the ability of women to make a living independent of men. While the market revolution of the Enlightenment made children less dependent on their parents, it also created an economy where women were financially dependent on a breadwinner husband who worked for wages outside of the home. However, household labor was a full-time job vital to the survival of the family. This interdependence did not create equality between the partners. Because men's economic contribution to the family resulted in cash, women were effectively denied entry into the public cash economy. This situation existed through the 1950s.

However, as mass production technology became more efficient, it became cheaper for families to buy many products rather than produce them at home. Also as labor-saving devices became widely available to consumers, homemaking no longer became a full-time job. Wives began to look for personal fulfillment outside of housework, including looking for employment. Meanwhile, single people could begin to get by without a homemaker at home.

Meanwhile, the booming economy of the 1950s fell into recession between 1973 and 1986, with real wages falling, job security decreasing, and housing prices rising. It became increasingly harder for men to support a family on just one income, and so women began to enter the job market, even those who were content with a domestic life. Dual-worker households naturally saw increased conflict about how to divide domestic labor. This period of job insecurity and negotiated labor helped shift attitudes away from traditional roles of husband and wife to more individualized arrangements.

This experience with market labor also made women more financially independent and more likely to leave an unsatisfactory marriage. The ability to survive on one’s own has also made women more reluctant to enter into a marriage unless their prospective husband has both the economic prospects and the emotional dependability to make pooling their resources worthwhile.⁵

In sum, when talking about "traditional marriage," it is important to understand that an egalitarian love marriage is not traditional by any sense of the word. Economic forces have changed marriage from an institution focused on wealth and survival to one that is largely centered around choice and love. Property, children, and a male breadwinner are no longer essential to make a marriage work. This frees individuals to focus on more emotional preferences such as emotional compatibility, and insist on equality between spouses. I'm guessing that most defenders of traditional marriage are not looking for a return to the "good old days" of coverture, dowries, and agrarian economics. With that in mind, what is so great about traditional marriage?

-----

1. STEPHANIE COONTZ, MARRIAGE, A HISTORY 149 (2005)

2. JOHN STUART MILL, THE SUBJECTION OF WOMEN 15 (1869) (Everyman’s Library 1992).

3. E.J. GRAFF, WHAT IS MARRIAGE FOR? 73 (1999)

4. Id. at 84.

5. The source material for this essay comes from COONTZ, supra note 1, and GRAFF, supra note 3.

There is no new thing under the sun...

The first documented LOLcat, published in 1905:

Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us.
-- Ecclesiastes 1:9-10.

Happy Holidays

December is upon us again, and that means another month of faux-outrage about people opting for a more ecumenical holiday greeting. This "debate" has been exposed for the fraud that it is so many times that I won't attempt to reinvent the wheel. Rather, I want to use it as a jumping-off point for something that's been on my mind lately.

This is a card that my grandfather sent my grandmother in the early 1920s. My mom gave me a copy of this card a few years ago, along with the rest of my grandparents' love letters. As you can see, my grandfather did not get it from exotic locale; he was in central Utah at the time. Yet the card refers to God as "Allah." I have no idea whether it was vogue in those days to use foreign and poetic names for God, but I could never imagine finding a card with a message like that in Hallmark now.

I brought up my grandparents' card to illustrate the point that our choice of words can become an intensely political act. During WWII, patriotism changed the name of a patty of ground beef from a hamburger to a salisbury steak. Who can forget the menu change at the eatery of the U.S. Capitol during the run-up to the Iraq War--would you like freedom fries with that? In both of these examples, words that had lost all ties with their etymological origins were yoked with those meanings again to serve a political end. While using Allah to refer to God was no big deal in central Utah in the 1920s, the same word now bears a lot more political baggage.

The political end of War on Christmas is similar to the other examples I've given. Christmas has become an inclusive holiday. To quote one of my former professors, "Merry Christmas" usually means "Merry Gift-Purchasing, Gift-Giving, and Gift-Receiving Holiday When We Also Watch the Detroit Lions, the Dallas Cowboys, and the Aloha Bowl on TV after unwrapping presents and eating fattening food." By insisting that retailers use Merry Christmas rather than Happy Holidays or Seasons Greetings, the generals in the war on Christmas are trying to remove the secular meaning of the word. Now when someone says "Merry Christmas," they want the meaning to be "Merry Commemoration of the Birth of God Incarnate Was Crucified for Sins of the World and Rose from the Dead on the Third Day." In other words, the word Christmas is being used to communicate Christian dominance rather than Christian love.

In spite of this, I will continue to say "Merry Christmas," though perhaps with an occasional "Happy Holidays" thrown in for good measure. I choose to do this because I believe that when people hear "Merry Christmas," they don't think of shopping or the birth of God, but rather many would hear "Merry season where we make an extra effort to be kind and recognize that we're all people worthy of respect and love." Merry Christmas, and Happy Holidays.

.

Schadenfreude for your Monday...

This one is for my roommate Mitch, who has to deal with people like this on a daily basis:

Make sure you watch this video until the very end--the real payoff of this video comes in the last ten seconds.

Our Inspired Constitution

Some of you have heard the hubbub about whether Hillary Clinton is barred from being Secretary of State under the Enoulments Clause of the Constitution (if you haven't, check here, here, and here). Most people seem to agree that cutting the pay of the person in question solves the problem, and I find the question generally unimportant and the requirement to be poorly drafted and stupid. However, my opinion changed when I learned this:

It appears that every presidential administration after that of Richard Nixon has deemed the Saxbe fix sufficient with the sole exception of the Reagan administration. President Reagan's Department of Justice, in a still-unreleased OLC opinion, concluded that nominating Senator Orin Hatch to the Supreme Court vacancy created by Justice Powell's resignation would be unconstitutional even if the salary of the office were to be reduced. The seat that might otherwise have gone to Senator Hatch instead went to Justice Anthony M. Kennedy, and the rest, as they say, is history.

The hand of Providence is upon us--God bless the Constitution!

A Blast from the Past

Just in case you were worried that my posts from Carolyn's blog were lost to the sands of time, they're not.

A Note on Policy Debates
Religious Freedom
Religious Freedom Part II
All This Fuss Over One Word?

Bathrooms v. Fountains, or, when is separate equal?

Previously, I made the argument that the main issue in Proposition 8 was whether "marriage" was used to describe same-sex unions. I argued that the purpose of reserving the word marriage for opposite-sex couples was to signal, by law, that the state views same-sex unions as less than opposite-sex unions. Some have questioned my argument, saying that just because domestic partnerships and marriage differed in name, it did not follow that one was better than the other. They were right; my argument is not self-evident. Let me explain my point.

Let's start with a premise: The purpose of proposition is symbolic segregation. Under California law, the legal union of an opposite-sex couple is marriage.¹ The union of a same-sex couple is called a domestic partnership, regardless of the fact that the same rights and responsibilities adhere to a domestic partnership as a marriage. The difference is a word; and therefore, the only function of the difference is communicative: the state is trying to communicate something by calling one union by one name and one union by another name.

Symbolic segregation has a long history in the United States when it comes to race. Jim Crow laws mandated that Blacks and Whites use separate drinking fountains, sit in separate railroad cars, and go to separate schools. This practice was held to be Constitutional by the U.S. Supreme Court in Plessy v. Ferguson.² In this case, the Court held that laws that mandate separate accommodations are Constitutional as long as they are substantively equal. The Court reasoned that civil and political equality were satisfied by substantively equal accommodations. The only reason to declare segregation unconstitutional would be to force social equality, an interest that the Court ruled that the Constitution did not protect and that law was powerless to enforce.

In defending the Separate but Equal Doctrine, the Court made much the same argument as some people make today: separation does not imply inferiority:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.³

Of course, Separate but Equal was struck down in Brown v. Board of Education.⁴ The Court held in that case that separate educational facilities are inherently unequal. In making that decision, the Court analyzed the effect that the segregation has on the people who were segregated:

To separate [black schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone . . . . Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.⁵

Of course, not all segregation is invidious. Separate restrooms for men and women is a type of segregation, yet one that few would argue implies the inferiority of either women or men. The question then is whether domestic partnerships are more like water fountains or bathrooms.

The first factor to consider in analyzing whether segregation implies inferiority is whether there is a legitimate purpose to the segregation for both segregated groups. Separate bathrooms protects privacy interests and safety, both important concerns. Single-sex education also performs a legitimate educational function. Jim Crow laws, on the other hand, did not validate any governmental interest, and to the extent that it benefited one group, it was at the expense of the other group. In the case of domestic partnerships, while marriage is a legitimate state interest, it is not at all clear why excluding same-sex couples from the word marriage while giving them the rights and responsibilities of marriage validates some important governmental interest. Also, any benefit realized by straight couples comes at the expense of gay couples.

Second, whether a separation implies inferiority can be informed by the reciprocity of the separation. With bathrooms, it is expected that neither sex will enter the accommodations of the other sex's restroom. The reciprocity is equal. This was not so in Jim Crow. Justice Harlan, dissenting in Plessy, explains:

It as said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor a to assert the contrary.⁶

California law implies that domestic partnerships are water fountain-esque. Marriage is available for all straight couples and no gay couples. Domestic partnerships are available to all gay couples and straight couples when one party is over 62.⁷ There is no push to keep straights out of domestic partnerships; Prop. 8 was about keeping gays out of marriage.

Finally, it's worth asking whether marriage and domestic partnerships could ever be equal. While the two terms may mean the same thing legally, marriage is a sociological institution with real cultural meaning. Domestic partnerships are a sterile legal instrument that does not convey any social status. Think of it in these terms:

Yesterday I called a woman's spouse her boyfriend. She says, correcting me, "He’s my husband." "Oh," I say, "I no longer recognize marriage." The impact is obvious. I tried it on a man who has been in a relationship for years, "How's your longtime companion, Jill?" "She’s my wife!" "Yeah, well, my beliefs don’t recognize marriage."

Fun. And instant, eyebrow-raising recognition. Suddenly the majority gets to feel what the minority feels. In a moment they feel what it's like to have their relationship downgraded, and to have a much taken-for-granted right called into question because of another's beliefs.

Just replace the words husband, wife, spouse, or fiancé with boyfriend, girlfriend, special friend, or longtime companion. There is a reason we needed stronger words for more serious relationships. We know it; now they can see it.

While it is not self-evident that reserving the word marriage for straight couples implied that gay couples were inferior, the evidence shows that the general intent of this law is to send a message of exclusivity that has no legal function, is not reciprocal, and has deep cultural meaning. Given this evidence, I would be hard pressed to say that separate was equal in this context.

1. Cal. Fam. C. § 297.5.

2. 163 U.S. 537 (1896).

3. Id. at 551.

4. 347 U.S. 483 (1954).

5. Id. at 494.

6. Plessy, 163 U.S. at 556-57.

7. Cal. Fam. Code § 297(b).

"As far as I'm concerned, that is the end of the matter. Thank you."

Yet another hilarious example of life imitating art:

Compare and contrast:

Vicar went to hospital with potato stuck in bottom

The clergyman, in his 50s, told nurses he had been hanging curtains when he fell backwards on to his kitchen table. He happened to be nude at the time of the mishap, said the vicar, who insisted he had not been playing a sex game. The vicar had to undergo a delicate operation to extract the vegetable, one of a range of odd items medics in Sheffield have had to remove from people's backsides or genitals.

Staring into the Abyss

Anyone who cares about winning the war on terror should read this article. Key passage:

I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified . . . , but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work . . . . It worked. Our efforts started a chain of successes that ultimately led to Zarqawi . . . . We turned several hard cases, including some foreign fighters, by using our new techniques. A few of them never abandoned the jihadist cause but still gave up critical information. One actually told me, "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."

The target of jihadist terrorism against the West is not our population but our values. Here's what I wrote in 2007, in response to a book that blamed liberalism for 9/11:

D'Souza is right. Islamic terrorists hate America because of what we allow: liberated women, freedom of speech, homosexuals, and freedom of religion. In other words, our freedom. And if we give up our freedom, the terrorists have won.

Ultimately, the war on terror is an ideological struggle, just like the Cold War before it. We won the cold war because we had better ideas, and we will win this war in the same way. However, there are those who sympathize with the terrorists' ideology, who would create a theocratic state of their own. They too hate liberated women, freedom of speech, homosexuals, and freedom of religion. And while they do not blow up buildings, they pose as serious threat to the American way of life as do Islamists.

So, be American. Be a working woman. Hold hands with your significant other in public. Read a banned book. Preach your religion. Get into a passionate debate. And make sure you respect everyone else's right to do the same.

The humane treatment of prisoners is one of those liberal values that makes us who we are as Americans. There is more and more evidence that liberal values are not outdated but really do work to ensure security and liberty.

Something to contemplate on Black Friday

Phil Spector totally looks like a dandelion.

Strauss v. Horton: Law, Politics and Prop 8, part II

As promised, here is part 2 of my analysis of the upcoming review of Proposition 8, Strauss v. Horton. In this post, I will look at some of the political winds that are influencing the court.

The first question that a lot of people ask is why, if the court is inclined to overturn Proposition 8, would they have let the initiative go to a vote? A group of litigants tried to get the Court to hear the revision challenge before the vote took place in a case called Bennett v. Bowen. The court denied their request for hearing, ruling that proposition 8 hadn't passed and so was not yet a live controversy. Judicial action was therefore not yet proper. This is a judicial doctrine known as ripeness. There are very few exceptions that would allow the court to take jurisdiction over a potential dispute; this issue did not fall into any of those exceptions.

But now, the dispute isn't just potential, it is live and the Court can now hear it. While courts are meant to be independent of political pressure, even the most isolated of courts would feel the politics of this decision weighing on them. The court has a lot of institutional pressure to strike down Proposition 8, but would expend a lot of political capital if it strikes the initiative down.

The foundation of the judiciary's power is moral legitimacy. The judiciary has no way of enforcing its own orders; its orders are upheld because the other branches of government and the people in general view the decisions of courts as binding, final, and authoritative. To that end, a court protecting its own legitimacy must take into account the effect that its decisions would have in building and maintaining its moral legitimacy. Specifically, a court must balance the perception of being a final and binding authority on the one hand and not appearing to be an unaccountable dictator on the other. Weighing on the final and binding authority side, the court has an interest in not having its decisions overturned. Many times, judges will even strike down attempts to override past decisions where that particular judge was in the minority. While the judge may disagree with the prior decision, protecting the right of the court to make that decision may prove to be a higher value for the judge than overturning the prior decision. Especially in this case, where the question of whether the court correctly decided that gays and lesbians constitute a suspect class is not before the court, even some justices who were in the minority in the previous case may be tempted to strike down Proposition 8 now that that status is a matter of settled law. As I mentioned in part one, I don't think the Court has left itself a lot of wiggle room in its previous opinion to uphold Prop 8, and if they do uphold it, they look weak and indecisive--not a good position for a court to be in.

On the other hand, to strike down Proposition 8, the court would have to invalidate the will of the majority of California voters. Overturning Proposition 8 will necessarily cost more in terms of public perception than would a statute passed by the legislature or something that had a lower profile. In fact, there is a movement afoot by supporters of Proposition 8 to recall any of the justices who vote to strike down the initiative. Given the propensity for craziness in the California recall system (see, e.g., Gray Davis), this is probably not an idle threat.

So what's a court to do? If the court is inclined to overturn Prop. 8 (I think they are), They need as much cover as possible. When courts make important and unpopular decisions (See Brown v. Board of Education and U.S. v. Nixon), the tendency is to speak with one voice. Look for any opinion overturning Proposition 8 to be a 7-0 or 6-1 opinion. This will necessarily entail coalition building and compromise, so look for a decision to take some time. Finally, it may be that the recall threat will actually backfire--a blatant attempt to coerce a judge to rule one way or another tends to bring out belligerence in the people whose job it is to ensure an independent judiciary.

In sum, I think there are a lot of non-legal factors that can push the court one way or another, and these are important things to consider when predicting how the review of Proposition 8 will turn out. Thoughts?

Zen...

Happy Thanksgiving all...

Strauss v. Horton: Law, Politics and Prop 8, part I

As predicted, the passage of Proposition 8 did not end the question of same-sex marriage in California. The Supreme Court has agreed to hear a challenge of the validity of Proposition 8 in a case that appears to be titled Strauss v. Horton. The three questions that the court certified are as follows:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?


2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?


3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of marriages of same-sex couples performed before the adoption of Proposition 8?

Partly to satisfy my own curiosity and partly to help others wade through these issues, I have done some research on issues 1 and 2 (I'll leave 3 for another day). I am not an expert on California Constitutional Law, but I know a thing or two about constitutional law in general, so here is my attempt, for what it's worth.

Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

This seems to be the best argument for overturning Proposition 8. As provided in Section 18, an amendment to the California Constitution can occur by initiative, but a revision to the constitution must start by the legislature approving a a revision commission ballot question. The ballot question must be approved by a general election of the state, then a revision commission writes a new constitution, then the constitution must be supported by a majority at another general election. Absent that process, the California Supreme Court can rule that the subject matter of a proposed amendment would amount to the revision of the California Constitution and so much go through the more rigorous process. An explanation of the difference between an amendment and a revision is written here, a portion of which I have excerpted below:

"Amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. The revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. An enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.

The question is whether Proposition 8 affects the substantial entirety of the California Constitution. Initiatives in the past that have been held to be revisions by the California court include not only initiatives that attempt to change several parts of the constitution at once (McFadden v. Jordan), but also those that would enact a fundamental qualitative change in the structures of the government, such as an initiative to limit the criminal procedure protections of the California Constitution to those that are recognized in the federal constitution (Raven v. Deukmejian).

Prop 8 only touches on one subject and is limited to one existing right of that subject. In that sense it is fairly different than those cases that I mentioned earlier. But I think there is still a fairly good case to be made that Prop 8 constitutes a revision. When viewed through the lens of California Constitutional law, Proposition 8 purports to strip a fundamental right from a suspect class. To affirm Prop 8 as an amendment, the Court would have to either revisit one of these two classifications (which they are unlikely to do) or draw a line that says what fundamental rights can be stripped from suspect classes before it constitutes a fundamental qualitative change in the California Constitution. I just don't think that the opinion in Marriage Cases gives them the wiggle room to say that. Because I think that the court won't write an opinion that says that stripping a fundamental right from a suspect class can be accomplished by a majority vote, I think that this argument is a winner.

Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

The argument, as I understand it, is that Proposition 8 is a legislative attempt to relitigate and overturn a judicial judgment, which is a core judicial function. Words cannot express how bewildering this argument is to me. The only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision. I can only conclude that the court certified this question as a subset of the revision question; that makes more sense given that a change in the allocation of governmental power is per se a revision of the constitution. So I will approach it in that way.

Regardless of the function of this argument, I just don't think it's very good. The check and balance on the judiciary is that if the court interprets a statute in the way that the legislature doesn't like, the legislature passes a new law. If the court interprets the constitution in a certain way and the legislature doesn't like it, they start the process to amend the constitution. It seems like this argument would apply to every new law or amendment. It also can't be said that the court has a special role in protecting minorities. If anything, that role is incidental to the courts' role in interpreting the constitution, not an inherent judicial function. I don't know; maybe I'm missing something. If someone wants to tell me that I'm wrong and this is a good argument, feel free to explain it to me. I'm lost.

OK, I've had my say on the law. Feel free to read some more qualified musings on the subject here, here, here, and here. Stay tuned for part two on Thanksgiving. Fight the tryptophan to read my analysis of the politics that the Court faces in this case and why they may affect the decision as much as the law.

Princeton Sidewalk Protection Act

The Tigers have begun a campaign of love:

"We’re not froshophobes. We just think they should stay on the grass."

It's too bad for this guy...

... that truth is a complete defense to libel.

Why I'm Writing

I'll admit it. I have a conservative streak a mile wide. When I say conservative, I don't mean my politics--I'm fairly progressive--I mean my temperament. So naturally, the thought of going to a protest is beyond distasteful to me (this is meant as no offense to those who did--someone has to do it). I want to provide support for the gay rights movement without having to do things that I neither enjoy doing nor am very good at.

The solution to this problem is to do what I am good at--writing essays that (I hope) provide a reasoned argument in favor of gay rights. I approach my essays as an advocate. I am not going to make any pretense of neutrality. I will, however, give everyone who comments here a fair shake, and attempt to engage all arguments made in good faith.

If you comment here, please be aware of two rules: first, stay on topic. Second, be respectful of me and your fellow commenters. Violation of either of these two rules is grounds for warnings and/or comment deletion. Other than that, I hope you enjoy the blog--feel free to comment or just lurk. Next week I should have a couple of posts dealing with the legal arguments in the California Supreme Court's review of Prop 8. Until then, enjoy the wackiness of this amicus letter urging the court not to review Prop 8. I especially like where the "heiress of the almighty creator" digresses into abortion and the Iraq War...

All about the Mormons, part Deux...

Matt and Trey are at it again.

Welcome

To those of you joining me from Carolyn's blog and Facebook, welcome. My theme for the next few posts will be same-sex marriage and Proposition 8. If you're burned out on this subject, check back in a couple of weeks, when I may have moved on to fresher topics. For now, check back often--I post essays on Tuesdays and Thursdays.

The hard truth

Annuit Coeptis

All This Fuss over One Word?

With the premises fully laid out, I will now proceed to my point: Proposition 8 does not affect religious freedom. The only thing that Proposition 8 will do is to change the word by which we call same-sex unions. If Prop 8 fails, these unions will continue to be called marriages. If Prop 8 passes, they will be called domestic partnerships. Why all of this trouble for a word?

But first, let me deal with Carolyn's arguments one by one. Carolyn's first argument is that she and a lot of legally trained people believe that same-sex marriage will hurt religious freedom. She includes quotes by a lot of people saying that this is so. But she doesn't include the parts of these quotes that explain why same-sex marriage will harm religious freedom. An argument includes a claim and a warrant--an explanation as to why the claim is true. What Carolyn has provided with these quotes are a bunch of unsupported claims. To rest your arguments on the reputation of the person saying it rather than arguments is called an appeal to authority--a logical fallacy. I'm not suggesting that Carolyn cannot show that same-sex marriage may harm religious freedom, but only that none of the quotes she uses make that argument.

Carolyn's second argument assumes without explaining that her example of parents not being able to opt out of public school curriculum somehow relates to religious freedom. This is not self-evident; in fact, I would say that controlling a child's educational development, while a freedom guaranteed by the liberty clause of the fourteenth amendment, is not a part of religious freedom. In short, the State is not telling parents what they can believe, what they can preach, what religious rituals they can do, or whether they can congregate. The decision only says that if parents choose to send their kids to public schools, they can't prevent the State from teaching their kids certain things. It does not say that the parents can't teach them conflicting principles at home, nor that the parents have to choose the state as their educator. While avoiding secular messages that challenge one's beliefs may be in a person's religious interest, it is not a principle of religious freedom.

Besides that, Carolyn does not explain how passing Prop 8 would make the decision come out any differently. As Carolyn explained in note 22 of her first post, there is no functional difference between domestic partnerships and marriages. Why, then, would a court find a difference in the importance of "promoting tolerance, including for the children (and parents) of gay marriages" and promoting tolerance, including for the children (and parents) of gay domestic partnerships, especially since the California educational code mandates that the schools teach respect for both marriage and "committed relationships."¹ Certainly if a state said that domestic partnerships were treated identically under the law as marriage, that would mean that promoting tolerance of a domestic partnership was of the same importance as promoting tolerance of a gay marriage.² Prop 8 just doesn't change anything about the case Carolyn talks about.

Carolyn's next argument is about how in re Marriage Cases violated separation of powers. Ultimately, this argument is irrelevant to the question of how prop 8 will affect religious freedom (unless Carolyn wants to show how it does). For now, I'll let it pass by with a snyde reference to Marbury v. Madison and how voter initiatives are not entitled to more deference than other duly passed statutes.

Carolyn's final argument is one that I want to spend some time with--civil rights. Carolyn states that comparison to the Civil Rights movement is spurious because there is no right to same-sex marriage. I could answer this myself, but the California Supreme Court does it so much better:

Although all parties in this proceeding agree that the right to marry constitutes a fundamental right protected by the state Constitution, there is considerable disagreement as to the scope and content of this fundamental state constitutional right. The Court of Appeal concluded that because marriage in California (and elsewhere) historically has been limited to opposite-sex couples, the constitutional right to marry under the California Constitution properly should be interpreted to afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional "right to same-sex marriage."

. . . In Perez v. Sharp--this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional--the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as "a right to interracial marriage" and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on the substance of the constitutional right at issue--that is, the importance to an individual of the freedom "to join in marriage with the person of one’s choice" --in determining whether the statute impinged upon the plaintiffs' fundamental constitutional right . . . .

The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs' argument that we recognize they are not seeking to create a new constitutional right--the right to "same-sex marriage"--or to change, modify, or (as some have suggested) "deinstitutionalize" the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits--accompanied by the same mutual responsibilities and obligations--as this constitutional right affords to opposite-sex couples. For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of "same-sex marriage."³

As the court points out, the argument that there is no right to same-sex marriage is the same as the argument that prior to 1958, there was no right to interracial marriage. It is a clever bit of sophistry unworthy of a freedom-loving state; it is an argument that says that you can only have your rights protected if you were powerful enough to avoid persecution in the past. This argument sets up the Constitution as protecting the strong against the weak rather than the other way around.⁴

In the end, this debate is not about hospital visits, or the right to preach against homosexuality, or anything like that. None of that will be affected by prop 8 one way or another. As I've tried to make clear in my previous posts, this is only about whether gay unions are called marriage or domestic partnerships. It is about the meaning of one word. Let me tell you why one word is important.

If proposition 8 passes, gays will still have legally recognized unions in the state of California, with all the rights and responsibilities of marriage. They just won't be called marriage. Why? What is the motivation of a state to have one institution for opposite-sex couples and another for same-sex couples when there's no functional difference between them? People for and against prop 8 agree on one thing: the word "marriage" is a symbol of something special. The only logical motivation to reserve the word for opposite-sex couples is that including same-sex couples will somehow take away the specialness of the word. So same-sex couples are segregated out of the institution of marriage not for a functional reason, but to signal that their relationships are different, and by the same token, lesser, than opposite-sex relationships. Passing prop 8 won't protect religious freedom; the only thing it will do is to make it clear that the state believes that gay relationships are not equal in dignity to straight relationships. That is a classic violation of equal protection written into the California Constitution. Because I am against that, I am opposed to proposition 8.⁵

1. See Cal. Educ. C. § 51933(7).

2. Cal. Fam. C. § 297.5.

3. In re Marriage Cases, 183 P.3d 384 (2008).

4. Rhetorical hyperbole? You say that like it's a bad thing...

5. OK, so maybe not brief, but it's still pithy.

Religious Freedom Part II

I apologize for taking so long to get to the meat of the debate, but I hope you'll bear with me for one more observation. This post will argue that just because something is detrimental to the interests of a particular religion does not mean that it is detrimental to religious freedom. Let me illustrate this point by posing a hypothetical situation. For our hypothetical let's travel to Salt Lake City. The city has had enough of the conference street preachers and so passes the following ordinance:

Whereas, the freedom to peaceably assemble for worship purposes is a vital component of religious freedom, and whereas, contentious protest and proselytizing upsets the peace and goodwill that characterizes religious worship and reduces the quality of the worship experience for parishioners, therefore, be it enacted that no protest or proselytizing shall occur within 500 feet of any church within the hour prior to, during, and within the hour after the worship services of that church.

Anyone who has experienced the street preachers at temple square would probably agree with the preface of the ordinance. Having a contentious person calling you to repentance while you are standing in line to get in to the conference center does take away from the spirit of the meeting. The ordinance would likely increase the quality of the religious experience for many conference-goers. However, this ordinance would be unequivocally bad for the principles of religious freedom, as it would limit the freedom of the street preachers to proclaim their beliefs.

This story illustrates in my mind an important distinction that I think we sometimes overlook: just because a law promotes a view that is hostile to a particular point of view of a religion does not mean that it violates the principles of religious freedom. I, for one, freely admit that government tolerance of homosexuality and the sanctioning of same-sex relationships pose problems for the promotion of LDS doctrine. It becomes harder for a church to preach that a certain behavior is a sin when the state endorses that behavior. One can envision all sorts of practical problems from proselytizing to record keeping that the Church suffers because of same-sex marriage. However, these problems do not necessarily mean that religious freedom is implicated.

Therefore, an argument showing how Prop 8 implicates religious freedom necessarily has three steps: First, the argument should identify the freedom at issue and show that it is a part of the principles of religious freedom. Second, the argument should show how that freedom is being harmed in the status quo. Finally, the argument should show how passing Prop 8 will solve that harm. Anything less just won't logically cut it.

Religious Freedom

The statement that Carolyn is affirming is that Proposition 8 will protect religious freedom. Before we can have a proper debate on this subject we must define what exactly religious freedom is. This post is my attempt to explain what religious freedom means to me.

In my mind, religious freedom consists of four elements. The primary element of religious freedom is the freedom to believe according to the dictates of one's conscience. While this freedom is the core of religious freedom, it is the least important focus in looking at policy--until the government has the means of mind control, individuals will always have the ability to believe as they want, even in the most repressive state.

Religious freedom also includes the right to freely express one's beliefs, and as a corollary, to not be required to express beliefs that one does not hold. Justice Jackson expressed it thusly:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.¹

The freedom to express one's religious beliefs is protected in the United States mainly by the First Amendment's guarantee of freedom of speech.

A third element of religious freedom is the freedom to congregate and worship with like-minded individuals. This freedom may be a matter of course to most Americans, but this is often a freedom denied to many minority religious groups in many places to maintain state control. Again, this part of religious freedom is not protected under the free exercise clause of the First Amendment. Rather, it is protected under the freedom of association, a right that the Court has found in the "penumbras" of the existing freedoms of speech, assembly, and the liberty clause of the Fifth and Fourteenth Amendments.²

The fourth element of religious freedom is the freedom to practice one's religious rituals. This is where state regulation and religious freedom are most likely to clash. Issues like polygamy, religious peyote use, and animal sacrifice fall into this category. Currently, protection of religious practice come from the free exercise clause of the First Amendment and state and federal statute. The Court has ruled that a generally applicable law that does not discriminate against religion is valid. That means, to take two examples, that a state can prohibit peyote use for all of its citizens without running afoul of the Constitution,³ but if a city allows for the slaughter of chickens for non-religious purposes, it must also allow for the slaughter of chickens for religious purposes.⁴ The states and federal government can also exempt religious practices from the scope of otherwise generally applicable laws; the federal government and some of the states have done this.

This is just a primer of religious freedom, and I may have missed some vital dimensions in my haste to write this post. What say you, dear readers? What other issues are important to note when talking about religious freedom?

1. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

2. See Roberts v. United States Jaycees, 468 U.S. 609 (1984).

3. Employment Division v. Smith, 494 U.S. 872 (1990).

4. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

A Note on Policy Debates

At its roots, the debate over Proposition 8 is a policy debate. The question is whether passing Proposition 8 is better than not passing it. Therefore, some observations about policy debates seem warranted.

Policy is implemented in the real world. While this statement may seem obvious, experience shows that it is a point worth making. Too often, those in favor of a change in policy focus too much on the unacceptability of the status quo to question whether the alternative will be better, while those against a policy compare the imagined harm to a utopian alternative rather than the reality of the status quo. As academic debaters have often noted, the key to winning debates is found within the simple description of how the world is.

In the case of Proposition 8, we have to compare the status quo of same-sex marriage with the alternative under California law: a world with the same anti-discrimination laws, the same adoption laws, and domestic partnership laws that provide same-sex couples with an institution that only differs from marriage by its name.

The second important observation about the real world is that homosexuals exist, that same-sex couples exist, that same-sex couples have children, and none of that will change if Prop 8 is passed. Even without marriage, homosexuals will still live in society and affect it in any number of ways. The question then becomes not whether same-sex marriages are good for marriage, but whether same-sex relationships are better for society inside or outside of the boundaries of marriage.

As this debate unfolds, we need to remember to keep in mind what the real consequences of each course of action are, rather than analyzing one option against an idealized alternative that doesn't actually exist. Only when we do that can we accurately judge the merits of the policy alternatives.