Friday, March 1, 2013

Hollingsworth v. Perry: you can't always get what you want...

...but if you try sometime, you just might find you get what you need.

The issue in Hollingsworth v. Perry (originally Perry v. Schwarzenegger) is relatively simple for a Supreme Court case: the constitutionality of California's Proposition 8. What the prop does is add a new clause to the California State Constitution (page 128):
Section 7.5 is added to Article I of the California Constitution, to read:  
SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California. 
In 2008, Proposition 8 was passed by California voters, 52% to 48%, not an overwhelmingly majority but an obviously clear majority. It was immediately challenged in State court and ruled as valid by the California State Supreme Court. It was then challenged in federal court. There, a judge in the U.S. District Court for the Northern District of California--located in San Francisco--ruled that Proposition 8 was unconstitutional, that it violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

The State of California appealed, but the Ninth Circuit upheld the District Court's ruling. However, it did not do in quite the same way as the District Court. The ruling by the judge in the latter held that same-sex marriage was a right to be recognized. In contrast, the decision by the Ninth Circuit was based on Proposition 8 taking away a right that had already been granted. From the decision by Justice Reinhardt:
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort.
Now the case is before the Supreme Court. From the beginning, one of the lawyers arguing on behalf of Perry et al--and against Proposition 8--has been Ted Olson, former Solicitor General for George W. Bush, founding member of the Federalist Society, and an oft-mentioned potential candidate for a spot on the SCOTUS. Olson--like Dick Cheney and other Bush-era Republicans (Paul Wolfowitz, Colin Powell, Condoleezza Rice)--has openly supported gay marriage, even while serving under Bush (who did not). And he is not alone; he has been joined by many  an others in an amicus brief that will be filed with the Supreme Court on the matter of Hollingsworth v. Perry. In total, over 130 notable Republicans and conservatives have appended their names to said brief, which argues the following:
Many of the signatories to this brief previously did not support civil marriage for same-sex couples; others did not hold a considered position on the issue. However, in the years since Massachusetts and other States have made civil marriage a reality for same-sex couples, amici, like many Americans, have reexamined the evidence and their own positions and have concluded that there is no legitimate, fact-based reason for deny-ing same-sex couples the same recognition in law that is available to opposite-sex couples. Rather, amici have concluded that marriage is strengthened, not under-mined, and its benefits and importance to society as well as the support and stability it gives to children and families promoted, not undercut, by providing access tocivil marriage for same-sex couples. In view of these conclusions, amici believe that the Constitution prohibits denying same-sex couples access to the legal rights and responsibilities that flow from the institution of civil marriage.

Amici do not denigrate the deeply held social, cul-tural, and religious tenets that lead sincere people totake the opposite view (and, indeed, some amici them-selves once held the opposite view). Whether same-sexcouples should have access to civil marriage dividesthoughtful, concerned citizens. But this Court has longrecognized that a belief, no matter how strongly or sin-cerely held, cannot justify a legal distinction that is un-supported by a factual basis, especially where some-thing as important as the right to civil marriage is con-cerned. Amici take this position with the understand-ing that providing access to civil marriage for same-sexcouples—which is the only issue raised in this case—poses no credible threat to religious freedom or to theinstitution of religious marriage. Amici believe firmlythat religious individuals and organizations should, andwill, make their own decisions about whether and howto participate in marriages between people of the samesex, and that the government must not intervene inthose decisions.
This brief is no small thing; it reflects a growing recognition that same-sex marriage simply poses no threat to U.S. culture or society and, more importantly in my opinion, it demonstrates the realization on the part of some Republicans that the issue of same-sex marriage is just not worth the political capital being spent to oppose it, not worth compromising one's true beliefs on the matter. And I have previously noted both of these things on more than one occasion.

I am hoping the Court takes note of this brief, but more importantly that it listens to Olson's legal arguments on the actual case, because they are unassailable in my opinion. Really, I think the Court will have no choice but to agree with the striking down of Proposition 8.

All of that said, I do have to note one other issue that is now bubbling to the surface: the apparent unhappiness among some liberals, progressives, and Democrats with regard to this amicus brief and the growing list of Republican signatories to it. Rather than applaud all of this, some on the Left seem to be a little angry about it. They resent the suggestion that there are any prominent Republicans standing up for gay marriage and that's because--I think--they don't like the prospect of losing one of the high horses they regularly mount.

Some on the left question the honesty of these Republicans, suggest there must be some kind of dirty trick here, or claim the only Republicans willing to speak out on this issue are those who have retired from public life. The last is demonstrably untrue, as the list of names makes clear. But the rest seems both silly and petty. I guess it irks them most of all that Ted Olson is one of the principle players here. Lest anyone forget, Olson was a big critic of the Clinton Administration. And when Bush thought to make Olson Attorney General, the left literally freaked out, largely because Olson was the lead attorney for Bush in Bush v. Gore. They really don't like the idea of having to cheer on Olson now, but reality is hitting them hard on this. As friend and poet William Haskins of AuthorScoop noted in a messageboard conversation on the matter:
Ted Olson was publicly fighting for equal rights for gays and lesbians when Obama was still opposed to them because his sky god thought it was a bad idea. 
That's a serious craw-sticker for many on the left, no doubt about it. Oh, and the biggest "come again" moment here for such people? Ted Olson's opponent in Bush v. Gore was David Boies, now Olson's partner in this case.

The long and short of it: the idea that marriage must be between a man and woman is not a necessary part of an actual conservative ideology. It's not even a workable part of a libertarian ideology. And for conservatives like me--that means real conservatives, for those scoring at home--what matters most are incentives and the corresponding costs and benefits (from my previous bit, above):
That's the penultimate point here: increasing marriage rates are a good thing. They promote a healthier, more vibrant, and more cohesive society. Look at the incentives listed above. All of them are equally applicable to a same-sex couple. And same-sex couples have the same desires and needs of heterosexual couples. They seek to be married for the same reasons, as well. And there simply are no costs for others or for society as a whole, with regard to same-sex marriages. Sure, one could argue that a different designation like "civil union" could serve the same purpose, but what's the point? Same-sex couples would still be free to identify themselves as a married couple. Why not accept such self-identification, when denial provides no benefits?
Still can't get behind the idea? Then don't. But get out of the way. Please.

Cheers, all.

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