Wednesday, December 3, 2008

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).

6 comments:

Gilberts' Fridge said...

http://fatmammycat.blogspot.com/2008/11/gay-marriage.html#comments

I agree with some of it and disagree with bits as well, but it's worth a read.

Charlie said...

Great explanation, Nate. So many people fail to stop and think about what public discourse sounds like to those who are marginalized by it.

Mark said...

Good thoughts, Nate.

Here're your thesis points, as I see them: (1) the general intent of this law is to send a message of exclusivity that has no legal function, (2) is not reciprocal, and (3) has deep cultural meaning

Let me start with (2) and (3), cause it's easier for me. Good point re: reciprocity. I agree with the principles you note. But in this case, it's not so lacking that the problem is without a solution. "Domestic partnerships are available to all gay couples and straight couples when one party is over 62." This is an amusing law. I'd never heard of it. Cal. Civil Code strikes again. But don't you think it could potentially weaken your argument? If we removed the provision of civil unions to senior citizens, then reciprocity would be complete. I'm curious: are straight couples that include one party over 62 excluded from marriage, or is this provision in addition to a marriage option available to them?

"There is no push to keep straights out of domestic partnerships." Who do you blame for that? I expect that No on 8 wouldn't want to do anything that would demonstrate a concession in this conflict. Settling into domestic partnerships would certainly send that message. Are you suggesting that Yes on 8 should demonstrate a reverence for the domestic partnership relationship by fighting to exclude themselves therefrom, rather than treating it as their leftovers that no one else wanted anyway? That might make it less like a fountain and more like a bathroom, but I doubt anyone would be flattered by the gesture. Still, I'd support that push, if only to avoid the wrath of Justice Harlan.

Now, (3). Marriage "has deep cultural meaning." My stake president keeps saying that very thing. Sounds like you're making an appeal to traditionalism. Marriage has obtained its meaning throughout its deep history by carrying certain exclusions. I understand that No on 8 wants to change that meaning somewhat to enjoy the social/cultural benefits of marriage, but the fact that marriage has obtained significance through its exclusive definition hardly justifies its modification. Rather, it suggests that the significance will be diminished along with its exclusivity. This Yes on 8's very concern.

I'd say your argument greatly relies on (1). Which is too bad, because this is the toughest one for people to agree on. You might say that there is no sufficiently compelling government interest in supporting a Prop 8 definition of marriage, and that equality should trump any ambiguity in the matter. Someone else may say that preservation of the very "deep cultural meaning" you reference is sufficiently compelling. It goes to the government's justification for being involved in the first place. In this regard, I don't have a reasoned, dispassionate answer that would appeal to even a large minority of people. There are just too many viewpoints here, most of them emotionally-charged, which is a good reason to require more than a simple majority vote, in my opinion.

I'm about ready to support the removal of marriage from government entirely, and let straight and gay couples call their civil unions whatever they want. I anticipate that neither side will be satisfied with that, and we will be on the blogs again in 2010. See you then.

Nate W. said...

Mark,

First, I'd support your conclusion--I think it's the only way both parties walk out of this with their heads held high.

I think you do misinterpret the thesis, however. My point is that segregation is justified if the government interest in the segregation meets the appropriate scrutiny level. The question needs to be if the government has an interest in segregation that is real and not symbolic (I'm applying Romer-level scrutiny here).

The reciprocity argument is just evidence that there is no substantive interest in the segregation. The reciprocity shows that the scheme is under-inclusive and incomplete, which belies the legitimacy of the government interest.
Are you suggesting that Yes on 8 should demonstrate a reverence for the domestic partnership relationship by fighting to exclude themselves therefrom, rather than treating it as their leftovers that no one else wanted anyway?

At this point it would be post-hoc, and your statement shows the point that I've been trying to make: domestic partnerships are leftovers, not equal in dignity to marriages. "No one would be so wanting in candor a to assert the contrary."

The deep cultural meaning argument is evidence of the symbolic nature of the segregation.

I understand that No on 8 wants to change that meaning somewhat to enjoy the social/cultural benefits of marriage, but the fact that marriage has obtained significance through its exclusive definition hardly justifies its modification. Rather, it suggests that the significance will be diminished along with its exclusivity. This Yes on 8's very concern.

Do you have any evidence that either a) marriage has its cultural value because of its exclusivity or that b) injury will accrue because of lessening that exclusivity? Otherwise, exclusivity becomes its own logic. I have a post on the cultural value and meaning on marriage that I think would add some insight into this argument. I'll post it Thursday.

Mark said...

"The question needs to be if the government has an interest in segregation that is real and not symbolic (I'm applying Romer-level scrutiny here)."

I have a lot to learn about the technical aspects of constitutional law. My training in patent does little to help. I wonder, though: what is the problem with a symbolic interest in a "symbolic segregation," as you call Prop 8?

I think civil unions have been treated by many as leftovers, which is a problem. The solution I propose is to elevate it to a position equal in dignity to marriage. You assert that such would be "post-hoc," but I don't see a problem here. Much of the law is created post-hoc to solve existing problems in an imperfect system.

Having neither (1) a history of marriage without the traditional elements of exclusivity capable of analysis nor (2) a metric by which to measure injury accrued because of the lessening of that exclusivity, I cannot provide the evidence you seek. Likewise, you would have a difficult time providing the same kind of evidence to promote your arguments. Without a data set and without metrics, it's conjecture on both sides. Even if I had studies, psychology and sociology are probably the most subjective sciences in existence. I appreciate that exclusivity provides its own logic in the absence of direct evidence, but that's why I support full reciprocity.

I look forward to your post on Thurs.

Nate W. said...

Mark,

I wonder, though: what is the problem with a symbolic interest in a "symbolic segregation," as you call Prop 8?I think you can find that in the snippet I quoted in Brown. Also, The Court has ruled that legislation that seeks only to harm a politically unpopular group is not a legitimate governmental interest. The problem is that even if California's end is to protect the symbolic integrity of marriage, Prop 8 doesn't do that. The means are so far removed from any evidence-based showing of harm that there's no showing of any motive except animus.

I think civil unions have been treated by many as leftovers, which is a problem. The solution I propose is to elevate it to a position equal in dignity to marriage. You assert that such would be "post-hoc," but I don't see a problem here.My post-hoc argument just meant that the effort would be a cynical attempt to avoid the equal protection question at this point. Again, riciprocity is not a test, but evidence of substance.

The rest of your arguments are better answered through the prism of tomorrow's post.