Proposition 8 and Messy Disagreements

two_wedding_ringsThe verdict is in, and for those of us who have watched these cases closely, listened to oral arguments and read briefs, here is the result – the Supreme Court has ruled on two pieces of the same-sex marriage (SSM) legal puzzle. The striking down of the Defense of Marriage Act’s definition section is fairly straightforward, but I’ll write about it in a few days, once the dust settles a bit. But the ruling on California’s Proposition 8 is a real head-scratcher. What, exactly, did the court decide?

Let’s take a look…

The first puzzling aspect is the composition of the majority and minority. The five justices ruling for the majority were Chief Justice Roberts, followed by Scalia, Ginsburg, Breyer, and Kagan. One might think, from the fact that it was a 5-4 decision, that it was decided on narrow idealogical lines, with Republican appointees voting one way and Democratic appointees voting the other. In this case, the 5-4 split was not partisan – something else was at the root of their agreement.

So then, what was actually decided in the case? Was Proposition 8, the ballot initiative changing the California constitution in order to define marriage as between a man and woman, struck down as unconstitutional? Actually, no. Those who fought for SSM did not get what they were, ultimately, desiring – the Supreme Court to rule that all restrictions of marriage to a man and woman are unconstitutional. Instead, the court ruled on a somewhat different issue – whether the petitioners could petition the court at all.

In the United States, in order to bring a case, one must be harmed in such a way that a judicial verdict can remedy the harm. For example, if someone stole from me, I am deprived of property and the judge can remedy the situation by ordering the property be returned and so on. States automatically have an interest in keeping their laws on the books, so if a law may be declared unconstitutional they can argue that it not be struck down. However, the state government of California did not want to defend the SSM ban. The people who did want to defend the ban were unable to show how they were harmed by the ban being lifted, thus they could not appeal the decision. They were, from the standpoint of the high court, only a very interested, very motivated set of bystanders.

Why such a ruling? From what I can tell, it is more about California than it is about the merits of a SSM ban. In California there are two ways to get a law passed. The people’s elected representatives can propose and debate a bill, then vote on it and if it passes, the governor can sign it. However, if the people of the state consider their elected representatives unresponsive to their desires, the people can draft legislation on their own and submit it to a popular vote. If the legislation passes, then it becomes law immediately.

There is much that is attractive about ballot initiatives, especially given the particular weaknesses of a two-party political system, where the circumstances surrounding party affiliation and national politics can deadlock government or in other ways force the government to consistently act contrary to the popular will. Perhaps it would be better to vote in more responsive representatives, but that would disrupt the party system as it is currently practiced in the USA, so instead Californians enjoy ballot initiatives.

Unfortunately, the results are predictable. There is a constant showdown between the people’s direct vote and their legitimately elected representatives. The government is called upon to enforce laws that it actively voted down and/or vetoed. Ballot initiatives are often challenged in court, and receive tepid defense from those tasked with promoting their legitimacy. It is as if the law-making process is designed based on the question – what if the others stubbornly refuse to cooperate?

First, concerned citizens recommend a law. Then the legislature fails to pass it. So the citizens pass it themselves. But other concerned citizens (perhaps the ones that successfully pressured the legislators to prevent the law’s passage) mount a lawsuit to have it struck down. The government, since the law didn’t originate with them, has little interest in defending it, so the law stands little chance in the adversarial system. Well, the California system has thought of that, too. For a law that started as a ballot initiative, the concerned citizens can defend it themselves since they cannot rely on their non-responsive elected officials to do so. The whole system is based on the idea that elected representatives do not, in fact, represent the will of the electorate.

If this situation reminds you of the squabbling of children, you’re not alone. Apparently the federal appeals court allowed the concerned citizens to defend Prop8 after it was struck down by a district court since the state officials declined to appeal the ruling. But the Supreme Court is unwilling to be the arena for Californians to fight each other. Reasonable people ought to assume that every ballot initiative will face a constitutional legal challenge of some sort or another. The elected representatives are constantly bypassed – both in the formulation of the law and in its defense. This leaves the US Supreme Court as the de facto arbiters in, well, just about everything controversial in California. And the justices will not take that job, unless someone can demonstrate that they’ve been personally harmed by the law in question.

And here’s where the ruling becomes interesting for those who are more than mere bystanders in the wrestling match that is California politics. Are ordinary citizens harmed by allowing SSM? Do they suffer the kind of loss that a judicial ruling can set right? I’ve wondered about this myself. I’ve argued elsewhere that the US no longer has a marriage culture, but a divorce culture. That is, we are now used to family court deciding what rights and responsibilities parents have concerning their children and concerning the marital estate. This is no longer considered extraordinary or tragic, but just normal. Children are treated as the property of a state that can decide which caretaker is best suited for the job of raising them. Marriage bonds are considered sacred, but only as long as they last. And society rallies around people who split from their spouses in order to find happiness and self-fulfillment alone or in the arms of another. Would SSM have harmed me or my own marriage? Perhaps only to the degree that it would cement forever the judicial foundation for marriage in place of a sacred/covenantal foundation. But I think that transition has occurred already, some decades ago.

It will take more than a group of concerned citizens to appeal the striking down of Prop8 by the district court. It will take someone who was directly harmed by Prop8 being struck down. I invite your comments as to who might fulfill that role.

9 responses

  1. “Perhaps only to the degree that it would cement forever the judicial foundation for marriage in place of a sacred/covenental foundation.”

    I think there’s a line worth drawing here between categories. A judicial body is absolutely going to define marriage on a judicial foundation; that’s inevitable, and in my view, not problematic at all.

    Judicial rulings don’t interfere with consensual sacred covenants. If you belong to a church body that defines marriage differently than does the State, fine. You and your community can uphold those standards together. A judicial ruling doesn’t make those values (or the reasons behind them) any less sacred. It doesn’t prevent people from living covenantally according to their best understanding of the sacred. What it does prevent is one body from using their leverage to insist that others, who don’t belong to that body, adhere to its doctrines.

    While a church has the right to make sacred rulings that are morally authoritative for its particular body of believers, the judicial body is different in that it has a civic obligation to make rulings on any and all citizens, despite multiple worldviews and major differences in the architecture of their value systems. Its purpose is civic, not sacred. It’s conducting a separate conversation.

    This is a big category mistake, but a tempting one, because we as a society tend more and more to consider “legal” the measure of morality. But you can’t legislate morality. The purpose of legislation is to achieve public order, nothing more. In fact I find it refreshing, that its boundaries stop so far short – this leaves a great deal of room for the rest of us to make sacred and moral determinations for ourselves and our communities.

    About divorce, whenever one or both spouses approach a legal authority to make a ruling between them, the judicial body is within its rights to make decisions on things like child custody and so on, because they’ve been solicited to do so. Apart from that solicitation, for the most part, our courts don’t trespass there. (For the most part. There are exceptions.)

  2. “Perhaps only to the degree that it would cement forever the judicial foundation for marriage in place of a sacred/covenental foundation.”

    I think there’s a line worth drawing here between categories. A judicial body is absolutely going to define marriage on a judicial foundation; that’s inevitable, and in my view, not problematic at all.

    Judicial rulings don’t interfere with consensual sacred covenants. If you belong to a church body that defines marriage differently than does the State, fine. You and your community can uphold those standards together. A judicial ruling doesn’t make those values (or the reasons behind them) any less sacred. It doesn’t prevent people from living covenantally according to their best understanding of the sacred. What it does prevent is one body from using their leverage to insist that others, who don’t belong to that body, adhere to its doctrines.

    While a church has the right to make sacred rulings that are morally authoritative for its particular body of believers, the judicial body is different in that it has a civic obligation to make rulings on any and all citizens, despite multiple worldviews and major differences in the architecture of their value systems. Its purpose is civic, not sacred. It’s conducting a separate conversation.

    This is a big category mistake, but a tempting one, because we as a society tend more and more to consider “legal” the measure of morality. But you can’t legislate morality. The purpose of legislation is to achieve public order, nothing more. In fact I find it refreshing, that its boundaries stop so far short – this leaves a great deal of room for the rest of us to make sacred and moral determinations for ourselves and our communities.

    About divorce, whenever one or both spouses approach a legal authority to make a ruling between them, the judicial body is within its rights to make decisions on things like child custody and so on, because they’ve been solicited to do so. Apart from that solicitation, for the most part, our courts don’t trespass there. (For the most part. There are exceptions.)

  3. Hi, Elisabeth!

    You make an excellent point about judicial invitation to settle disputes, one I agree with. My point is more about the culture. We live in a culture that sees marriage as a contractual, legal reality. Thus, it is something that can be changed. We don’t see it as something that has a reality that pre-exists all laws that surround it – that those laws are beholden to.

    Suggesting that marriage is something that can be decided in a purely civic manner makes my point for me.

    In any event, my original statement stands. State sanctioning of SSM makes the current legal culture more established. Not that I anticipate it returning to a more sacred/covenantal model anyway…

    • I think you may be right that society as a whole is beholden (beholds itself?) to the legal definition of marriage over any alternative. That said, as soon as you consider a given group’s views against those of another, it’s not hard to find some difference of opinion about what marriage is and means, even within the mainstream. You’re definitely right that Americans as a whole don’t look at marriage as a pre-existing reality whose essence is immutable (as some rich theological traditions do). So, no disagreement there.

      My point was just to say that, even this being the case, non-legal viewpoints do exist, and do have room to blossom within individual communities. For which I’m glad.

  4. The idea that marriage predates our own laws (USA) is obvious. The idea that it pre-dates ALL laws vs. springing FROM law is controversial – at least to me :-). If one takes a literal Biblical view, I doubt that can be proven.

    I think you make an excellent point about SSM doing any real harm to either society as a whole or heterosexual married couples specifically. I’d like to see one example of any such harm coming to society from SSM existing. Massachusetts should provide many such examples if they exist, since SSM has been legal there some time. Do any come to mind?

    • None I know of. Here’s the standard (quoted from the DOMA ruling):

      “First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.”’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favor- able decision.’” Lujan, supra, at 560–561 (footnote and citations omitted).

      I’m trying to think of some scenario that would qualify, but nothing comes to mind yet (though, granted, I’ve just today heard about this standard).

  5. I am a divorced mother who decided never to remarry again. Has nothing to do with anything other than personal choice. (a) The first time I heard the word marriage it was dealing with the sanctification of a holy ritual. This past summer, a fellow class mate pointed out something to me. It boils down to definitions. Why not classify same sex marriage as “legal unions” instead of “legal marriage?” I question this since marriage is more a traditional man/woman in cultural ideology.
    They would basically hold the same reference pertaining to equal rights but just termed differently. Yet, it would hold intact the traditional sanctification of the sacred Biblical marriage.

    (b) We indeed to have a divorce culture which I agree. We have none other than the late honorable Ronald Reagan to thank for that. From my research a few years back, late President Reagan and Jane Wyman supposedly divorced under the terms of cruel and inhumane treatment. One of his first orders of business was to change that status when he became governor and ease the laws to no fault. I seriously doubt there was cruel and inhumane treatment due to the fact they had a daughter born living that died on the same day and a vast separation of political views during their marriage. The no-fault divorce was born out of California in the USA in 1969. The interesting part to all of this is to why get married if it is easy to get a divorce? It is true that the arms of government can go only so far in the family unit. In this case may, we should be looking at why couples want to get married, the idea of why they would have a lasting compatible marriage, and would they make good parents? Unfortunately there is no way to predict the future and all the psychological or biological test could not foretell the future.

    It is true that sometimes, when the government intervenes on issues dealing with the personal lives of it constituents, it can make matters worse.

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