Further Thoughts on Perry

Below the fold, because they’re lengthy.

First, Perry may well show the limits of what you can achieve in the American political system when all you have are slogans and intuition. These may work well at the ballot box, but they don’t do so well in court, where you need to meet a higher standard of evidence.

One thing that still stands out for me is how extraordinarily weak the expert testimony for the defense was. I kept thinking as I read the decision — this is California. It’s a big state and a very important fight. It’s also a federal case, making it even more important. And this is the very best you can do?

I asked myself — couldn’t they have gotten Maggie Gallagher to testify? She comes across as reasonable most of the time. She might have offered one of her frequent catch phrases, that societies that “lose the marriage idea” die out. As a sound bite, it’s frightening and often convincing. But at trial, she’d have been asked the obvious follow-up question — name just one such society — and a moment of hilarity would have ensued, because there aren’t any.

Or she might have said that kids need a mom and a dad. Then she’d have been confronted with the deep dishonesty of many of the studies that are used to disparage gay and lesbian parents. These studies all either extrapolate from single-parent homes to two-parent homes or else fail to control for divorce. Thus they draw conclusions that are pretty obviously doubtful. Comparing two-parent same-sex families with two-parent opposite-sex families and controlling for divorce demonstrates little difference in childrearing outcomes — a point Gallagher commonly avoids at all costs.

She can get away with it on the Internet. I doubt she could have handled being confronted with contrary evidence on the stand. Or at any rate she’d have done no better than David Blankenhorn, who was totally unable to answer that evidence (see pp 44-45).

The defense’s other key witness, Kenneth Miller, fared even worse in some ways. Miller appeared unfamiliar with basic issues and authors in gay and lesbian politics. Never mind a federal case — I’d have flunked an undergrad in a Gay & Lesbian Studies class if he’d done as little reading as Miller did.

At least he was canny. I’ll give him that. When asked whether gays and lesbians had more or less political power than African-Americans, he even answered “I don’t know” — which was perhaps the best answer he could give, tactically.

The problem is that neither “more” nor “less” would have helped the defense. If he’d have said gays and lesbians had more political power, he’d have looked completely foolish. There are far more blacks in elected office than there are gays and lesbians, up to and including the president. Racial discrimination is illegal everywhere. And black people can marry anyone of their choice, as long as they’re heterosexual.

But if Miller had said that gays and lesbians have less political power, he’d have made the plaintiffs’ case for them, because demonstrating a lack of political power is one key part of proving suspect class status. Blacks remain a suspect class today in part because of their historical lack of political power. We can argue about whether this still deserves to be so anymore, but Perry isn’t the time or place to do it. In the context of this case, saying that gays and lesbians have less political power than blacks constitutes an a fortiori argument that gays and lesbians deserve suspect class status. Miller knew better than to do this, so he answered, lamely, “I don’t know.”

As a result, in the findings of fact Judge Walker ended up relying almost exclusively on the plaintiffs’ witnesses, above all Nancy Cott, whose work is indeed excellent. Gays and lesbians should thank her, George Chauncey, Hendrik Hartog, and indeed the entire American historical profession that supported their work. Historians have made very clear what marriage has and has not been throughout American history, even if it doesn’t necessarily square with many of our received understandings about the way things always were. The truth is that marriage has been a continuously changing institution, not one settled for all time, and that same-sex marriage is simply one more change in a direction that aligns marriage more closely with our ideals and values. Historians have performed an invaluable service to the cause of liberty and human dignity in this case.

On a different subject, one very important aspect of Perry is that plaintiffs, defendants, and judge all agree that marriage is a social status, not merely a contract, and that the government was faulted for conferring an elevated status on some people but not on others. In many ways this was the central problem of the entire case.

I find the government grant of social status a very unfortunate aspect of civil marriage and one I would do without if I could. I would prefer for my family and friends to think of me as married, or not, rather than to have “married” stamped on my forehead by the government. I know not everyone thinks this way, and I get a bit queasy when I think that many people seem to prefer the government stamp to the personal approval of family and friends. I should be clear that there are people on both sides of the debate who seem to think this way. Either way, I think they are wrong.

Wherever possible, and as a general rule, the government should not be in the business of conferring social distinction or granting social status. But if it must do so — if it has no other choice, or if political realities force the issue — status must be granted on an egalitarian basis, without regard to race, gender, religion, or even sexual orientation. In that sense, Judge Walker clearly made the right call.

I would strongly prefer, though, a marriage regime consisting purely of negative rights, that is, of areas where both state and third-party individuals agree only to stay out of the way or to respect private familial decisions. And not at all of status.

We are a very long way from anything like that. In the meantime, any marriage rights we grant, whether negative or even positive, need to be offered on an equal basis. Perry is a big step toward that goal.

An ideal state might grant only civil unions, consisting only of negative rights and default legal understandings regarding property disposition, child custody, medical and legal decisionmaking, immigration/residence rights, and a few other very low-cost, easily understood guarantees of noninterference in family life. Churches and families would decide on a case-by-case basis which relationships they would elevate to the level of marriages. These institutions wouldn’t always agree, but then, they wouldn’t need to.

In reality, no one is going to tolerate all existing “marriages” being retroactively demoted to mere “civil unions.” They’re certainly not going to tolerate it in the name of a political-theory abstraction like all of the above. Maybe the best we can do, then, is a civil marriage regime for all, and religious marriage according to our particular churches and beliefs. That’s just what Perry offers.

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28 thoughts on “Further Thoughts on Perry

  1. This is the only issue I recall in which you posit the idea of an “ideal state” that we can consider, but that we oughtn’t hold the existing one up to in earnest critique and tear it to shreds for falling short. I applaud you doing that here, and I’d applaud you doing it elsewhere, as well.

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    • @Michael Drew,

      I am not sure I follow you. Could you rephrase your first sentence? I’m not just being pedantic. I don’t follow the relationship among the parts.

      I remain deeply agnostic about all ideal states, and I thought I’d posited one here only because many other people had done the same — “If only we had civil unions for all!” is a pipe dream of plenty of people all across the political spectrum. It’s also a cheap way to defer any form of marriage equality indefinitely. That’s exactly why I reject it.

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        • I certainly am distinguishing between them, because they are two factually distinct things.

          A civil marriage regime is one in which the state recognizes things called civil marriages, which are not religious in nature, and which confer certain rights and responsibilities to the couples in question. A civil marriage regime currently exists in every state in the union, some with and some without same-sex marriage. At the federal level, only heterosexual civil marriages are recognized; DOMA forbids the recognition of same-sex civil marriages by the federal government, even while these marriages are recognized by some state governments.

          Civil unions are not marriages and do not typically confer all of the same rights as civil marriages, particularly at the federal level, where civil unions are generally not recognized. Proponents of the “civil unions for all” plan suggest that the federal government and the states should all agree to stop offering civil marriages to anyone, and should instead offer civil unions to both hetero- and homosexual couples. Under their proposal, these civil unions would confer the exact same rights as marriage, albeit without using the divisive word marriage.

          Word choice aside, this is not what civil unions do now, and I find it politically a very difficult sell, for the reason I mentioned above.

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        • @Michael Drew,

          I consider myself among the more anti-utopian of libertarians. I’ve even had some affinity for agnarchism — the idea that I don’t know whether, in utopia, we would need a government or not.

          What I think I have are principles that can be demonstrated to be true, but by no means do I have a road map for enacting them perfectly. I’d be happier if more libertarians would admit as much and refrain from saying “in my ideal society we would…” Let’s focus on the present, and on the clearest and most obvious abuses of liberty instead.

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  2. @Bob, I’d only point out that civil unions could be structured as to provide the same rights and obligations as civil marriage, as in the United Kingdom. I understand, however, that the term marriage carries more clout.

    “Civil partnerships in the United Kingdom, granted under the Civil Partnership Act 2004, give same-sex couples rights and responsibilities comparable to civil marriage.[1] Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner’s children,[2] as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, next-of-kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce.”

    http://en.wikipedia.org/wiki/Civil_partnership_in_the_United_Kingdom

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    • @Bob,

      All this is true enough and clearly works in the UK. But in the United States, things sit differently politically. National civil unions for gays and lesbians would likely not be a permanent solution here if it even is one on the other side of the pond, which after all it might not be.

      There is a very strongly ingrained suspicion here of “separate but equal” anything, unlike in the UK, where the concept doesn’t have quite the same odium. There’s also a much greater psychic value attached to marriage here, one that impels gays and lesbians not to be so happy with anything less. I wouldn’t expect a compromise like this one to last very long.

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      • I don’t entirely get the “seperate but equal” argument against civil unions.

        In segregation, “separate but equal” referred to facilities and government services. Eg, segregated schools were inherently unequal and were always going to be so because black schools would always be underfunded by racist white governments. If you have separate services for two different classes of people, the minority group will always have inferior ones.

        But the argument on civil unions is about a legal status, not facilities. If the government passes a law saying that people in civil unions have all the same rights as people in marriages, then civil unions are, for all intents and purposes, equal to marriage.

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        • @Katherine, If that’s the case, then the question that immediately springs to mind is “why have a separate status at all”? Given the history of the issue, gay rights advocates are totally justified in being suspicious that the answer to that question is some form of anti-gay bias.

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          • @Dan Miller, another question that occurs to me, if separate but equal had been scrupulously enforced and funded would that have been okay? Without going back and looking at the Brown v Board decision the Court found “separate” inherently unequal.

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  3. Jason,

    I join you in your surprise at how bad the pro-8 argument was. Before Positive Liberty died, I wrote a piece arguing that after having students write for several years about same-sex marriage, I thought I’d seen all the arguments against it, and that there were no good ones. The arguments in this case reinforces my certainty that I was right. No argument was made here that I hadn’t seen my students make, and the arguments that were made weren’t made with any more sophistication than I’d seen from my students. I hope Justice Kennedy is taking notes.

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  4. “And this is the very best you can do?”

    In their defense, all the really good expert witnesses were on European holidays with their rent-boys.

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  5. “An ideal state might grant only civil unions, consisting only of negative rights and default legal understandings regarding property disposition, child custody, medical and legal decisionmaking, immigration/residence rights, and a few other very low-cost, easily understood guarantees of noninterference in family life. Churches and families would decide on a case-by-case basis which relationships they would elevate to the level of marriages. These institutions wouldn’t always agree, but then, they wouldn’t need to.

    In reality, no one is going to tolerate all existing “marriages” being retroactively demoted to mere “civil unions.” They’re certainly not going to tolerate it in the name of a political-theory abstraction like all of the above. Maybe the best we can do, then, is a civil marriage regime for all, and religious marriage according to our particular churches and beliefs. That’s just what Perry offers.”

    These last two paragraphs sum up my exact views on this issue, something I have tried to communicate with far less eloquence. People can certainly maintain their own religious biases, as long as they don’t hurt anyone over them. But how people choose to love, commit themselves, define their families and divvy up their property is nobody else’s business.

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  6. Pingback: Thoughts on Proposition 8 « William The Coroner’s Forensic Files

  7. “Or she might have said that kids need a mom and a dad. ”

    The response to this should be: How will marriage equality for gay people PREVENT any given children from having a mom and dad??

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  8. One reason Maggie didn’t testify is that she’s not really an “expert” on anything except how to read talking points. If she had testified, she just would have been another David Blankenhorn — a political hack with an axe to grind, not a scientist like the plaintiffs’ experts. She probably wouldn’t have had a tantrum on the stand like Blankenhorn did, but at the end of the day Walker probably would have found that she’s not qualified to offer opinions in psychology, sociology, or any other field of study.

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    • @Chris,
      Let me enlarge on Chris’s comment:

      Mrs. Srivastav has a BA in Religious Studies. She has done no research concerning marriage. Her credentials are shakier than Blankenhorn, who at least has a MA in Comparative History (and a thesis on cabinetmakers).

      Mrs. Srivastav is a pundit, nothing more.

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