Friday, March 6, 2009

A Dangerous Slope: Arguments on California's Proposition 8

Watching court arguments in cases involving fundamental constitutional law is always a good education in civics. The argument yesterday in the California Supreme Court was no exception.

The court was hearing challenges brought in three cases against the validity of the enactment, by an initiative measure passed by the majority of voters in California last November, of Section 7.5 of Article I of the State Constitution, which reads in its entirety:

Only marriage between a man and a woman is valid or recognized in California.

These are the same fourteen words which were passed as a legislative initiative measure (Proposition 22) by California voters in 2000, and which added section 308.5 to the California Family Code. (Prior provisions in the Family Code were already to the same effect, but could be changed at any time by the Legislature. By enacting the language as a legislative initiative, any change to it made by the Legislature would, under the Constitution, have to be submitted to a vote of the people before it could take effect.) On May 15, 2008, the California Supreme Court ruled by a 4-3 majority that section 308.5, together with another California statute (section 300) treating marriage as a relationship only between a man and a woman, violated the Equal Protection Clause of the State Constitution (Article I, Section 7). The Court also held that people of the same sex enjoyed a "fundamental right" to marry each other.

Reaction to the split decision was already under way when it was rendered. Papers to place on the ballot what became Proposition 8, which added the words of Family Code section 308.5 to the same article of the Constitution in which the Equal Protection Clause is found, had been taken out in 2007. The measure qualified for the November 2008 ballot shortly after the Supreme Court announced its decision, and the effort to gather signatures for it probably gained support from that decision.

The first of the three cases (No. S168047) was brought the day after it appeared that Proposition 8 had passed by a 52.5% majority. Six same-sex couples (four from the Bay Area and two from Los Angeles) alleged they wanted to get married, but feared they now would not be able to do so as a result of the measure's enactment. They requested the Court to issue an emergency stay keeping it from taking effect on the ground that the change caused immediate and substantial harm to a "suspect class" of persons (gays and lesbians), and that it should be held invalid because it amounted to a "revision", instead of an amendment, to the Constitution. (Under Article XVIII, sections 1 and 2 of the Constitution, revisions to it may be enacted only at a convention specially called for that purpose, or by an act of the legislature, both of which must be subsequently ratified by a majority of the State's voters. The Constitution does not define what it means by "revision".) The couples were joined in their petition by an organization called "Equality California", whose membership includes (according to the amended petition) "registered voters in every county in the State of California, as well as lesbian and gay individuals who wish to marry in the future, some of whom currently are in registered domestic partnerships and some of whom are not." The lead law firm for these parties is the National Center for Lesbian Rights, in San Francisco, whose member Shannon P. Minter argued the case for them in the Supreme Court.

The second case (No. S168066) was brought by one of the couples who had been successful in getting the Supreme Court to overturn the earlier Family Code provision defining marriage, and who had gotten married afterwards in accordance with the Court's decree. They were joined by another couple who, like those in the first suit, had not yet gotten married, but wanted to. Their petition alleged that Proposition 8 was not only an impermissible "revision" of the Constitution by initiative, but that it violated the Equal Protection Clause of the Constitution, and constituted an impermissible interference with the separation of powers by attempting legislatively to overrule a settled decision made by the judicial branch. They are represented by the firm of Allred, Maroko & Goldberg of Los Angeles, whose partner Michael Maroko argued the case for them.

The third case (No. S168078) was filed by the City and County of San Francisco, the County of Santa Clara, the City of Los Angeles, and the County of Los Angeles, each of which (except for the City of Los Angeles) had issued marriage licenses following the Court's earlier decision in May. (In 2004, well before the issue reached the courts, the Mayor of San Francisco, Gavin Newsom, had decided on his own that the statutes were unconstitutional, and had ordered the Clerk to issue marriage licenses to same-sex couples. The Court later enjoined the City and County from doing so, pending its consideration of the constitutional issues, in a case called Lockyer v. City and County of San Francisco. The Court also declared null and void the marriages that San Francisco had licensed.)

In the present case, the counties were concerned about the effect of the enactment of Proposition 8 on the same-sex marriages that had already taken place under their licenses. (The City of Los Angeles alleged vaguely that it "would be harmed if required to act in contravention of the rights of its lesbian and gay residents", without specifying just what Proposition 8 required that it do.) They also raised the same grounds of equal protection and invalid constitutional revision by initiative. The parties on this petition were represented by their respective official counsel, one of whom, Therese M. Stewart, had argued the Marriage Cases before the Supreme Court on behalf of the City and County of San Francisco, and who argued the case for those parties yesterday.

Three subsequent petitions seeking to overturn Proposition 8 were filed in the days following its passage before the Supreme Court issued an order that it would consolidate the first three cases and issue a ruling in them, and would stay proceedings in all other matters. (One of the additional petitions so filed was on behalf of the California Council of Churches, Bishops Mark Andrus of the Episcopal Diocese of California and J. Jon Bruno of the Episcopal Diocese of Los Angeles, the United Church of Christ, and the Unitarian Universalist Association of Congregations.) In the same order, the Court denied the requested emergency stay, and directed that expedited briefs and argument be submitted on the following three issues:

  • ( 1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 1-4.)

  • (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 same-sex couples performed before the adoption of Proposition 8?

The alert reader may notice that this list of issues did not mention the equal protection arguments that had been raised in the second two petitions. (I took note of this fact in my earlier post on this subject; why the Court chose not to do so remains a mystery.) What happened next is both novel and interesting. The Attorney General of the State of California, the Hon. Edmund G. ("Jerry") Brown, Jr., is required by law to represent state officers, such as the Registrar of Vital Statistics in charge of the registration of marriages, when they are sued in court. (Attorney General Brown himself had also been named as a defendant, and stated initially that he would defend the initiative measure in court.) When his office filed on December 19 its answers to the three petitions, however, it was learned that instead of defending the validity of Proposition 8 against all of the petitioners' arguments, Attorney General Brown had included a final section in his brief (pages 75-90) which asserted, in agreement with the petitioners' earlier equal protection arguments, that "Proposition 8 should be invalidated even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by Article I without a compelling interest."

Thus the Court was without the benefit of any argument for the validity of Proposition 8 on equal protection grounds. As a result, it issued an order allowing the supporters of Proposition 8, who had been allowed in the meanwhile to intervene in the proceedings, to file briefs addressing what it called "the new issue" raised by the Attorney General. And in that rather backhanded way, what was to become as much as half of the case on oral argument entered the case officially. (The "separation of powers" violation was not really a legitimate issue. Nothing about Proposition 8 purported to undo the earlier finding by the Supreme Court that section 308.5 of the Family Code [and similar statutes] violated the Equal Protection Clause of the Constitution as it stood in May 2008. Instead, Proposition 8, as stated above, simply added a new section to Article I of the Constitution, and thereby raised the previous statutory language to a level that was on a par with the Equal Protection Clause. That was a perfectly normal exercise of the legislative function, and in no way tended to interfere with the prerogatives of the judiciary branch. The "separation of powers" argument was barely touched on at the hearing.)

The case attracted enormous interest across the land. More than 60 briefs, many of them on behalf of so-called "friends of the court", or amici curiae, were filed with the Court by its expedited deadline of January 15, 2009. The Court allotted three hours for oral argument, with half an hour each to counsel for the three groups of petitioners, half an hour for the Attorney General (who was directed to divide his argument for and against the measure), and a full hour given to the supporters of Proposition 8, represented by Dean Kenneth Starr of the law school at Pepperdine. The petitioners and the Attorney General went first, then Dean Starr argued, and finally the three attorneys for the petitioners offered brief rebuttal arguments. (Dean Starr did not use his full time; the justices ran out of questions to ask him. But the justices took up a great deal of the petitioners' time, both in opening and in rebuttal, by asking them questions.)

Shannon Minter opened the argument for the petitioners, and he had barely begun when Chief Justice Ronald George interrupted him. The question and answer that followed would sound the theme of the entire three-hour argument, at least from the petitioners' point of view. The Chief Justice, baiting him with a slanted question (an old judge's technique to get him to state the gist of his argument quickly), asked whether it wasn't the case that the effect of the ballot measure was fairly narrow, since all it did was change the definition of "marriage", and it did not take away from same-sex couples any of the substantive rights of domestic partners granted by earlier legislation. "Relegating same-sex couples to domestic partnership does not provide them with everything but a word," Mr. Minter responded. "Proposition 8 changes the basic nature of our government." (Or, in other words, it was an unlawful "revision" to the Constitution which had not first been proposed by the legislature.)

Justice Joyce L. Kennard (who sometimes sounded more like a law professor engaging in Socratic dialogue than a justice concerned with a specific question) wasted no time in getting to the heart of the matter. She called attention to the distinction she had made in her concurring opinion in the Marriage Cases, between interpreting a statute in light of the Constitution, and interpreting the Constitution itself. The present case involved the latter, while the Marriage Cases had involved the former. The earlier sections of the Family Code had been held to violate the Equal Protection Clause in Article I, section 7 of the Constitution. But how could one clause of the Constitution be held to "violate" another clause of the same Constitution?

Mr. Minter, and the counsel for the other petitioners, never really gave a satisfactory answer to this question, and Justice Kennard (and the other justices as well) kept asking it in different forms. Mr. Minter had to concede, when asked directly, that no previous court case, in which the court found a measure to be a "revision", had involved a similar reduction in the rights of a minority group. (And, as the briefs showed, there were two cases in other States, Alaska and Oregon, which had considered exactly that question, and found that the ballot measure in each instance was not a "revision", but an "amendment".)

The petitioners' attorneys retreated again and again into a circular argument: Proposition 8 violated the Equal Protection Clause because it changed the Constitution by removing a "right" which the Constitution, before it was changed, and in the opinion of at least four out of seven justices, guaranteed. In other words, according to the petitioners, the people can amend their Constitution, but only in certain ways: once a right has been declared "fundamental" under the Equal Protection Clause, it may never thereafter be taken away by initiative amendment. The latter power may always be employed to add rights, but can never be used to remove rights once granted, especially rights granted to "unpopular minorities". But declared as "fundamental" by whom? And who decides just what is an "unpopular minority"?

Let us set aside these bothersome questions, as did counsel at oral argument, and continue with some of the other colloquies. (I shall return to these questions later.) Justice Kennard also had a little fun with Christopher Krueger, the poor deputy attorney general picked by Jerry Brown to make his argument for him. She asked him: "Just which side are you on?"

Mr. Krueger: "We're on the side of the challengers--we think it's unconstitutional---but we don't agree with their argument that it's a 'revision'."

The teasing was fair, because the two positions taken by the Attorney General were in the end contradictory, and thus his argument as a whole failed to hang together.

Let me recap what was incoherent about it. Remember the distinction which the Constitution itself draws between an "amendment" to the Constitution and a "revision". The former can be enacted by the people directly through an initiative ballot measure---over the years since the initiative process was first added to the Constitution in 1911, the people have exercised this right hundreds and hundreds of times. (Whereas the federal Constitution has been amended only 27 times in the 220 years of its existence, the California Constitution has been amended more than five hundred times.) A "revision" to the Constitution may be made only in a special convention called for that purpose, or by a proposal made by a two-thirds vote in both houses of the Legislature; thereafter any such revision must be ratified in an election before it can take effect. The Constitution defines neither "revision" nor "amendment"; California courts have distinguished between them by considering the nature of the change made in each instance. The change can be either qualitative, affecting the fundamental structures of government, or quantitative, affecting numerous provisions all at once, or both; in such cases, the measure is considered a "revision". Changes that are neither are considered simple "amendments" requiring only a one-time majority vote of the electorate. (The 1990 amendment which placed limits on the terms which legislators could serve, for example, was held to be an "amendment", and not a revision.)

The petitioners had argued that the change enacted by Proposition 8 was so fundamental and far-reaching with regard to a minority's "rights" that it had to be considered a revision, and so required a proposal to be made either by the legislature or by a constitutional convention, and only then ratified by the people. The Attorney General, representing himself and the Registrar, disagreed, and argued that under the prior decisions of California courts, an initiative which added only fourteen words to the Constitution could be considered nothing more than an amendment.

However, as already noted, Attorney General Brown decided to go on to argue that Proposition 8 was invalid as an unconstitutional infringement on minority rights. This argument undermined the positions of both sides, and made neither side happy. (It also caused the Registrar to retain separate counsel to represent him on just this issue, leaving Jerry Brown to represent only himself in advancing the argument.) It undermined the petitioners' position that the change was a revision, by arguing that case law could be read to find that it was only an amendment. But it also undermined the Proposition 8 supporters' argument that the people's power to amend the Constitution was limited only by the Federal Constitution, insofar as the latter applied to the States. By submitting that there were some inherent limits on the power to amend, the Attorney General threw some support to the petitioners, who were reaching the same result by contending that only a revision could enact such a fundamental change.

When the deputy attorney general argued that the amendment made by Proposition 8 was beyond the power of the people to enact (or, in legal terms, was "ultra vires"), Chief Justice Ronald George threw him a hypothetical question to answer. What if, asked the Chief Justice, the situation had been reversed? Suppose, he said, that the people had (long ago) first approved the equivalent of Proposition 8, before we decided the right to marry was "fundamental". Next, suppose that the activists later succeeded in getting the electorate to pass a provision changing the Constitution so as to allow same-sex marriages. Would that latter change, he asked, be a "revision", or only an amendment"?

Mr. Krueger could answer only that it would be an amendment. When asked to explain, he gave the circular argument again that a ballot measure adding a fundamental right to the Constitution was only an amendment, while a measure removing such a right, while not substantial enough to be a "revision", was nonetheless ultra vires and void, as violating equal protection without any compelling reason. My impression was that neither Chief Justice George, nor Justice Kennard, was persuaded by this argument. That could spell trouble for the opponents of Proposition 8, because both of those Justices were in the majority that held unconstitutional the earlier statutory version of the language.

Now Justice Corrigan, who had dissented in the Marriage Cases, joined the fray. "So the People may amend their Constitution only in certain permissible ways? How do we define what those ways are?" Chief Justice George seconded her question, and pointed to the very first sentence of the Constitution (art. I, sec. 1). It, and the one that follows it, say:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
"What does the word 'inalienable' mean in that sentence?" he asked. "Is that what limits the power of a majority to amend the Constitution? If a right is 'inalienable', no amendment can take it away?" Mr. Krueger was happy to agree, because the "right to marry", although not among the "inalienable rights" enumerated (but the language says "among", the Chief Justice pointed out, so there must be others as well), could be considered as deriving from the enjoyment of liberty and privacy. Then he pointed to section 16 of Article I, which provides that trial by jury is "inviolate". Does that mean the same thing as "inalienable", he asked, or does it mean something different? And if so, how are we to tell where the right to marry falls with respect to these categories?

Counsel and the court got into a colloquy about how the Constitution changes over time, and how rights recognized now were not recognized at all earlier. The right of privacy, for example, was a later addition to the first section of Article I. If it was not so "fundamental" as to be included in the first place, asked the Chief Justice, when did it become so?

Now Justice Baxter asked the deputy attorney general: what about the prohibition against "cruel and unusual punishment"? He pointed out that an earlier majority of the Court had ruled that the death penalty was unconstitutional for that reason, only to be reversed by an initiative amendment added the next year. (Three of the justices making that decision, including then Chief Justice Rose Bird, lost their seats on the Court as a result.) If the majority of voters could reverse the Court's finding with regard to something so fundamental as the right to life, could they not also reverse a finding as to the "right to marry"?

Mr. Krueger could answer only: "I'm not sure . . .", then he went on to assert that the concept of "cruel and unusual" was subjective, and could change with time. Justice Baxter pounced on him: "So the Court is required to take a poll of the citizens before deciding what is 'fundamental' and what is not? What is cruel or unusual depends on the popular mood? What if the people enacted a proposition imposing a cruel or unusual punishment?"

The deputy was caught flat-footed. He could only stammer: "The court would find a way" to hold it unconstitutional.

That response provoked Justice Corrigan to profess her skepticism at what she was hearing: "There we go---the 'court would find a way'?"

Chief Justice George: Is the right of electors to amend the Constitution by initiative "inalienable"?

Mr. Krueger: Yes, now it is.

Justice Corrigan: Is there a difference between inalienable and fundamental? How is your argument different from saying we get to strike down amendments which the Court doesn't like?

Mr. Krueger: This Court has already said the right to marry is a fundamental right; there is no compelling reason to eliminate it.

With that exchange, the Attorney General's argument became exposed as incoherent. A simple amendment adding the power to change the Constitution by initiative had become unrepealable ("inalienable"), because otherwise the judge-declared "right to marry" might not be considered inalienable as well. As a consequence, there were now two classes of impermissible Constitutional "amendments": those which were so substantial as to amount to "revisions", and those which were so substantial as to be ultra vires, even though they were not so substantial as to be "revisions." This was a completely unworkable scheme.

The defense of the latter point led the attorney general into the thicket of natural law, a doctrine not relied upon by courts to justify their holdings since the nineteenth century. He almost said that the "right to marry" was one based in natural law! After conceding that the decisions from that era which he used to bolster his argument were "quaint", the embarrassed Mr. Krueger (who nevertheless cut an imposing figure, at well over six feet tall) thankfully exhausted his allotted half hour, and had to sit down.

Now came Dean Kenneth Starr for the respondents and supporters of Proposition 8. With his cultivated manners and collegial style, he addressed the Court as he would a faculty meeting---all the while pronouncing Western names like an Easterner ("Ah-mador" [County], for example, the same way he says "Nay-vah-dah"; although born in Texas, Starr spent most of his career in Washington, D.C. before coming to Pepperdine). He was soon forced to take some extreme positions as a logical extension of his argument that Proposition 8 was a simple exercise of the people's reserved power to change their Constitution by democratic process. The petitioners had failed to recognize that this power of the people was likewise "inalienable." Although he characterized Proposition 8 as very "limited" in what it accomplished, the voters themselves are not limited in what they could do, he said. They could, for instance, amend their Constitution by initiative to:

(a) Repeal the state constitutional provision that parallels the First Amendment's guarantee of freedom of speech;

(b) Repeal all rights of same-sex couples under California's statutes and judicial decisions recognizing domestic partnerships; or

(c) Prohibit, as did Colorado with its Amendment 2, any form of protection for gays and lesbians against discrimination in housing, public and private employment, or in accommodations and housing, just for starters.

He conceded that this last change would violate the federal Equal Protection Clause, as the courts found it did in Colorado. But he maintained that nothing in State law prevented the people from enacting such amendments, and quoted Justice Mosk, a venerated California jurist, in speaking of the initiative amendment that restored the death penalty: "It's crude, but the people do have the raw power to define the rights [of others]," he said. "We govern ourselves---and we may govern ourselves unwisely."

The breadth of these examples made for a consistent, if not exactly ardent, position---none of them (except perhaps the third) would be so extensive as to amount to a "revision", and so could be adopted by initiative---but they nonetheless took some of the justices aback. They saw they were not going to budge Dean Starr, since he was prepared to go to the extreme limits of his position, so they took up the question of what would happen, if Proposition 8 was upheld, to the same-sex marriages that had been performed before its passage.

Here Dean Starr was just as uncompromising: the "flinty reality", he said, was that when the original lawsuits trying to establish a "right to marry" were brought, the question was open, but with the enactment of Proposition 8, now the consequences are clear. The language of the initiative, he contended, is unambiguous: such marriages, although valid under State law when performed, could no longer be "valid or recognized in California."

This reading of the language clearly troubled Justice Corrigan (who had dissented from the earlier ruling in the Marriage Cases) and Chief Justice George. They wanted to read the language as having an effect only on marriages after its enactment. Chief Justice George suggested that the language was deliberately made ambiguous, so as to give the proposition a better chance on the ballot by not spelling out clearly to voters what the consequences would be. Dean Starr countered that the effect of the language was spelled out clearly in the ballot arguments, and here the discussion descended into a desultory and wholly academic discussion of what voters may be presumed to understand about the measures they vote for, given what is or is not written in the ballot pamphlets. (Apparently the justices and the lawyers think that we all read them.)

At this point, Justice Kennard interrupted with another of her quasi-speeches, in a roundabout manner of asking a question. In doing so, she returned to the Chief Justice's initial query, and thus signaled what could well be the majority's rationale, if a majority does uphold the ballot measure. She asked, in essence, whether Proposition 8 in reality took away only a label, and not a substantive right, because it left intact all the statutory measures which California had theretofore enacted giving same-sex couples the same benefits as married couples. All it withheld from them was the name, or label, of "marriage".

Ironically, although no one noticed it either earlier or at this point in the argument, this rationale turns the Supreme Court's majority opinion in the Marriage Cases around on itself. In that opinion, authored by Chief Justice George and concurred in by Justice Kennard, the Court went the extra mile to find that those domestic partnership statutes were constitutionally inadequate because they withheld the label of marriage, and so imposed a stigma on the relationships and families of same-sex couples. Now that same feature became a rationale for upholding the ballot measure as not constituting a "revision" under the Constitution.

In their rebuttal, the petitioners' attorneys were not buying the apparent turnaround in the majority's thinking. They again vociferously attacked the ballot measure as stigmatizing an entire class of persons that had already been the object of many years of discrimination and obloquy. In response, Chief Justice George became a little exasperated with them, observing: "I find it remarkable that you are arguing that Proposition 8 is far more drastic, and does far more than even its proponents (meaning Dean Starr) are contending---don't you see Proposition 8 as fairly limited, in leaving all of your substantive rights intact?"

Shannon Minter, for petitioners: "The impact of such a decision on these families will be very harmful, marking these families as second-class citizens---the problems will be exacerbated exponentially." (Apparently they will not accept a decision against them as recognizing the will of the people, but are planning massive demonstrations in the streets of California's cities if it goes against them. Such demonstrations, if they occur, are likely to set their cause back by years.)

In the rebuttal for his clients, Michael Maroko conceded that the measure should no longer be referred to as "Proposition 8", because with its passage it had become Article I, Section 7.5 of the Constitution. Then he asked the Justices, since they apparently believed that the provision merely dealt with nomenclature, to consider a hypothetical Article 7.6, which would be enacted to provide that only males could be called "Justice" or "Judge", and that females had to be called "Commissioner"---but they would have the same powers as judges. The Court took this hypothetical as the little joke that it was, since there is no logical relationship between the sex of a person and the status of being a judge. (There is unquestionably such a relationship behind society's longstanding recognition of what it takes to produce and rear children, as demonstrated in this article.)

The argument ended almost as it had begun, with Ms. Stewart for the counties contending, without any other basis in law or history than her say-so, that "when the people enacted the Constitution, they limited their power to take away fundamental rights---they said that could be done only through a 'revision'." (In fact, they said no such thing, as we have seen; neither the Constitution itself, nor its legislative history, offers any explanation of the term.) "Otherwise," she added, "why would the framers protect the 'fundamental structure of government' by creating the mechanism of revision?"

At the risk of being as tedious as the counsel themselves were on this point, I shall point out once more that this is another variation on the circular argument with which they started. The "fundamental structure of government" which can be altered only by a constitutional revision includes the "right to marry" only if one first says that it does. And the only reason for one to say such a thing is that doing so makes it that much harder in the future to change the law back.

Chief Justice George asked the last question, which pretty fairly well summed up the Court's apparent view of the matter: "Is there anything in the Constitution saying that any parts of it are more unchangeable than others?"

Ms. Stewart again did not respond to the question asked. She observed, almost petulantly, that in approving the ballot measure, the majority didn't have to worry about the consequences, because what they were enacting wouldn't apply to them." (The emphasis is mine.) And with that last note of frustration, her time expired.

In so concluding, the opponents of Proposition 8 pretty much showed how they have fallen, hook, line and sinker, into the trap that comes from treating marriage as a "right" to be granted or denied at the majority's whim, instead of as the privilege that it really is (for reasons I explained in this post). Like the privilege of a driver's license, a marriage license may be offered by society only to those whom it deems appropriate to enjoy the status it confers. Thus men may marry women, but brothers may not marry sisters, or adults marry children. (No law, by the way, prevents gay brothers or lesbian sisters from living together, while the law makes it a crime for siblings of opposite sex to have intercourse. I do not hear the gay and lesbian community complaining about discrimination in that instance.)

There is no "right to marry", any more than there is a "right to drive". As the parallel with driving shows, marriage cannot be regarded as a "right" without undermining the whole system of fundamental legal concepts. A "right" by definition belongs to an individual; pairs or groups of people do not possess rights collectively, but individually. The hallmark of a right is that it is inherent with a given classification, and cannot be taken away without engaging in discrimination. The essence of a privilege, on the other hand consists in "discrimination." By definition, only certain people have certain privileges---children under 15 cannot drive or marry. But it makes no legal sense to call that "discrimination."

As a privilege, marriage is a special status conferred on two people. You cannot be "married" if you are single, and currently, at least, you cannot be "married" if you are a group of three or more. (Once marriage is defined as a right, however, the courts will be unable to limit it just to couples, and there will be no logical reason to deny that "right" to each of three or four individuals who want to be "married".) Privileges, unlike rights, can be conferred on groups. A corporation, for example, is a privilege conferred on two or more people who decide to incorporate.

Seeing civil marriage as the privilege it is makes it simple to justify marriage as a privilege conferred upon two people of opposite sex, because that is the only (lawful) way that society can be carried on. (Because it sees no necessity---as yet, anyway---to guarantee there will be children of the marriage, the State does not inquire into whether the couple wants to have children, or is fertile. But that day could come, if the population declines due to a low birth rate, and the State wants to confer marriage only upon those who agree and are able to increase the population.)

By regarding marriage as a right, gays and lesbians are able to assume the status of victims, and to draw parallels with blacks who were denied their civil rights. But civil rights are the essence of what "rights" are, and go with the status of being a citizen. Notice, for instance, that aliens who come to this country have to be granted the privilege of citizenship; they cannot claim it as a "right." But once they are granted that privilege, then they have the accompanying civil rights, such as the right to vote. Likewise, education in this country used to be a privilege; ever since Brown v. Board of Education in 1954, however, it has been a constitutional right (although it is still a privilege at higher levels).

People who are married also acquire certain rights with that status, as do their children: the parents have a right to be supported in their old age by their children, as the children have a right to support from their parents during their minority; the children inherit from the parents in the absence of a will to the contrary, and a married couple has the right to hold title to property as tenants by the entirety---a form of ownership that cannot be broken unilaterally by either spouse, but only by divorce. But all of these rights and more are currently granted by California to same-sex couples registered as domestic partners. Thus, along with Chief Justice George, one has to wonder what all the fuss is about.

In the final analysis, my problem with the petitioners' answers to the Justices' questions is not just that they were circular, in assuming the very issue the Court has been asked to decide: whether the Equal Protection Clause allows any exceptions. (That the language of the Equal Protection Clause in the Constitution itself contains certain provisos and qualifications about its extent did not faze the petitioners' counsel when Chief Justice Ronald George pointed that fact out to them in their argument.) My problem is also that the technique they employed in the matter of gay marriages is the standard method which activists so frequently use to get around the democratic process: first they get a liberal majority on a court to declare the existence of a "fundamental constitutional right", which they could not get the legislature itself to declare, and then they promptly say that both the legislature and the people lack the power to change what the court has declared.

One has to ask what makes four people in black robes so supremely powerful that they can discern a "fundamental right" where the drafters of the Constitution did not. (Mind you, I am not complaining about the ability of judges to define the law, but only about whether they have the power to make the law unalterable.) To cede to petitioners' argument is to cede the very essence of our democratic republic. But I had better stop here, or I will go on to fall into the same trap as did the petitioners, and start arguing that society has "rights", too.


  1. Once all the legal arguments have been aired - and becasue I am not a lawyer I cannot respond to them - there will remain an uneasiness about the whole matter. It seems to me that when someone who can enjoy a privilege argues against allowing others to enjoy that privilge those arguments should be treated with at least a modicum of suspicion. In this case, married heterosexuals like me wish to deny that privilege to same-sex couples.

  2. Thank you Mr. Haley for bringing clarity to this case. I'm disappointed I was not able to watch Ken Starr during oral arguments or when he came to a fundraiser for our church's legal defense fund.

  3. Dear Mr. Haley,

    Just a minor point, my having not yet fully read and digested your post, but, if the website of the Episcopal Diocese of Los Angeles is to be believed (perhaps a dubious assumption, all things considered), the Bishop's name is J. Jon Bruno, rather than Jon J. Bruno.

    Blessings and regards,
    Keith Toepfer

  4. Thanks, Keith---I checked it also with the official Church Annual Directory, and corrected the name. As you already know, accuracy is a prized goal on this site, and even the smallest correction is appreciated. So thank you again!

  5. I am unconvinced by your argument that rights pertain only to individuals. Obviously the right of peaceable assembly and to freedom of speech naturally involve more than one person. (The right to speak freely only in private to oneself would be a very paltry right indeed!) I would also note that a number of the principle rights enumerated in the Constitution of the US apply to groups as well as individuals - such as protection from search of a home, or from jointly owned property being seized without compensation.

    Secondly, I find your argument about privilege vs. rights doesn't hang together well, nor your argument that making marriage a "right" suggests that there are then no limits. Many of our most common and fundamental rights are in fact limited: the right to vote by age and citizenship, the right to speech by various checks intended to prevent slander and riot; and even freedom of religion is limited to the extent one's religion might harm others or disturb the social fabric (people are restricted from certain religious practices in the interest of the public safety.)

    So too it would be quite easy to place a legal limit on marriage to "two unmarried adult persons of legal age not related by blood." The fact of limitations on rights, or their provision for other than individuals does not transform them into privileges.

    Thanks for the, as usual, cogent and careful summary of the legal arguments.

  6. Fr. Haller,

    I find it very interesting that you appear to deem it necessary to place words in Mr. Haley's mouth (figuratively speaking) in order to make your case. The case in point is your example of the right to freedom of speech. Nowhere in the version of Mr. Haley's post that I read did I find him suggest that the right is limited to speaking in private. Nor do I find such any suggestion of such an absurd limitation in any of the founder's documents.

    Privacy does not so much as begin to enter the equation. The right to freedom of speech is, very specifically, the right to speak in a public venue—provided only that, by virtue of one's physical placement in that venue, the speaker is neither creating a public nuisance (e.g., placing oneself on the pavement in such a way as to block one's fellows ability to pass safely (thereby recognizing their right to freedom of movement in public, and freedom to listen to what you have to say or ignore it), nor placing his fellows in peril, nor disturbing the peace by the use of an overly aggressive speech amplification device.

    In a similar manner, because two persons may each have an ownership interest in a home or in which home they both reside, I believe you will find that the right of immunity from an unauthorized search or seizure inheres to them each as individuals.

    Finally, not to spend too much time (nor too many electrons) on such sophomorically synthetic objections, nowhere do I find Mr. Haley asserting that there are no limits on rights. In point of fact, he specifically addressed the limits on the right to vote. And, a point which you seem either to have completely overlooked or intentionally ignored, he pointed out that the existence of any particular "right" inhering to one individual, automatically creates a "duty" on the part of all other individuals affected by the actual or intended exercise of that "right."

    I suspect that you are unconvinced because you do not like the logical consequences at which becoming thus convinced would demand you arrive.

    Blessings and regards,
    Keith Toepfer

  7. Father Haller, thank you again for a very thoughtful comment. You illustrate, however, the problems of analysis that flow from a loose use of the term "right". The so-called "right to free speech" under the First Amendment is not a right to say anything anywhere at any time, but instead is actually a guarantee that the government will pass no law that interferes with your doing so. You do not have a "right" to have your speech published anywhere you would like, for example---newspapers, magazines, publishers, and yes, even blog sites, can and do freely restrict your right to say something. But the government, at least, cannot force you off your podium, or your blogsite (so long as you are not threatening national security or state secrets). So "freedom of speech", properly understood, is a "right" you have only against the government, and not generally against other people. (Likewise for searches and seizures; if an individual tries to search you without your consent, you would sue him not under the Fourth Amendment, but for assault under tort law.)

    The reason that, properly speaking, only individuals have legal rights is that the legal correlative of a right is a corresponding "duty" on the part of everyone else. In the law, duties are generally owed to individuals, and not to groups collectively. Thus, I owe you a duty not to drive my car carelessly when you are in the crosswalk, and my violation of that duty gives you individually the right to sue me for damages.

    All this was very well explained long ago in a law review article published in 1913 by Professor Wesley A. Hohfeld, called "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning." Although it does not seem to be online, there is a good short summary of its ideas here.

    The so-called "right to marry" is not a right because not everyone owes you a duty to allow you to marry---for example, fathers of brides can, and regularly do, interfere with that "right" with impunity, by pressure techniques and threats, and you cannot sue them if they do. Under the Hohfeldian system of analysis, marriage is a privilege, because once the State recognizes two people as married, no one can "unrecognize" the marriage, i.e., no one has a "right" to interfere with that privilege.

    Professor Hohfeld's battle for proper analysis is far from won---judges and lawyers stray from its principles regularly in arguments and published decisions, as witness the California Supreme Court in its earlier decision. But when they do, they invariably get caught up in a tangle later, when they have to sort out the mixed consequences of loose reasoning. Keeping the fundamental concepts straight is a way of avoiding such problems in the first place, because under Hohfeldian analysis, you can never recognize a "right" without at the same time creating a corresponding duty on the part of everyone else.

  8. Dear Mr Haley,
    I take your and Hohfeld's point and it is a helpful way to set up a clear definition of "right" and "privilege" -- however, I think this is a prescriptive definition rather than a descriptive one. That is, it must perforce reduce the range of what are commonly and traditionally called "rights" to a very small pool indeed -- only to those things which impose a duty on others. While this is a perfectly rational definition -- and perhaps even a helpful one in law -- I don't think it meets your test about "plurality" in that it necessarily involves some kind of reciprocity. That is -- and this is where I think it undercuts the more venerable understanding of rights as "natural" and inherent in the individual -- any right requires a corresponding duty from someone else.

    The older understanding of "rights" in English and French (and American) tradition is that an individual right does not guarantee or require compliance or participation by others -- that is, my freedom of speech does not in fact guarantee publication by some other party. I have no "right to publication" or "freedom of the press" unless I own my own press.

    This often comes up in the discussion of freedom of assembly: that is, the freedom peaceably to assemble only applies to those willing to do so -- I have no right to assemble a crowd of unwilling people, but a group of willing people have the right to assemble. The same can be said of marriage: it is not a right to marry anyone one chooses, but rather the right to marry someone who chooses to marry one, subject to the regulations of the state. Marriage (at least heterosexual marriage) has long been recognized as one of the most fundamental human rights, in Constitutions of various entities around the world.

    As usual, you force me to think carefully (for which thanks!), and I can imagine a number of "duties" created by marriage -- for instance, the duty not to interfere in the marriage, or the duty of one member of the couple to remain faithful to the other. The analogy to the right to property is that no third party can take a person's property without the owner's consent. That these duties are enumerated in the Decalogue is food for thought, particularly given its appearance in the lectionary this coming Sunday.

    However, while I can generally agree (these possible exceptions being noted) that marriage is not a "right" under your Hohfeldian definition, that is not the definition of "right" as it is used in most of the legal documents that describe the "right."

    Rather than become entangled in a logomachia, I think the more profound issue is the question of whether the right or privilege of marriage is reasonably extended to same-sex couples in the interest of social stability. I think it is; that it is demonstrably a contribution to social order, in much the same way as mixed-sex marriage.

  9. Dear Martial Artist,
    Thanks as well for you comment. I think I have addressed your concern in my response to Mr H.'s response to my post. This seems to me to be largely a question of definitions -- whether we are to accept the more traditional understanding of "rights" or Hohfeld's narrower -- and as I admit, clearer -- definition. That being said, I do think marriage as an individual right clearly imposes duties both on the parties to the marriage and the larger society -- so perhaps this is not a privilege after all. Or if so, how do those duties vanish?

  10. Fr. Haller, though I side with Mr. Haley, I appreciate your thoughtful challenges to the rights/privileges distinction. Nevertheless, I hope you would agree while social stability may be the more profound issue, that is not a consititutional consideration and is outside the scope of judicial review. Even though judges may have true opinions, they are not endowed with the power -- a legal concept as important as rights and privileges -- to deign what laws and policies are best suited to form a properly ordered society.

    As for the rights/privileges distinction, might I add that foundationally, rights are not granted but instead are secured by the government because fundamental rights are a priori. By contrast, privileges are the product of the social compact. All rights are therefore privileges, but not all privileges are rights. Marriage is basically a recognition, like citizenship. There are rights that accompany those privileges, but they are not fundamental rights with respect to the person. They are fundamental with respect to the recognized institution. I cannot see, though I am open to persuasion, how marriage and citizenship are fundamental with respect to the essence of personhood.

  11. Dear Jason Roberts,
    Thanks for this, too. As I say, I think the rights/privileges distinction a helpful one to the degree it brings some definitional precision to the discussion.

    Let me also admit that I find language of "rights" to be rather fuzzy once one starts to try to examine it. Your comment here opens up a serious gap, I think, in what are often asserted as "rights." In part it seems to me that notions of "rights" are as plastic as things such as "natural law" -- and indeed share some features and grow out of a natural law rationalism, for good or ill. The "a priori" nature of such rights, or rather the assertion that they are somehow independently existent and "natural" is part of the problem. As with "natural law" itself, "rights" thinking can enshrine cultural notions or even prejudices, far from being "natural" or inherent but rather merely common. There can be vast inconsistencies between ideal and practice -- the unalienable right to liberty vs slaveholding, for instance, in the early days of our nation's founding.

    It is when these somewhat vague and poorly formed notions bump into positive law that I think we need to have some more precise definitions, and Hohfeld does offer a way forward. (My question at this point remains how one might connect "duty" to marriage -- and I think the vows themselves give us some indications along that line.)

    Another way to proceed, one most often seen I think, is to enshrine enumerated rights into the positive law.

    This leads to some questions about the philosophy of law itself -- such as, what is its purpose. I think one of the purposes of law is the establishment of certain limits on human action, guarantees of access to certain things and of the freedom to do some things while being forbidden others. Whether called rights or privileges will, it seems to me, hinge on the definition or the culture.

    Some cultures are heavily directed towards "rights" language. In some cases, these rights are extended in directions I find hard to conceive -- as for example in the Roman Catholic assertion (embodied in the encyclical on bioethics) that a child has "a right to be conceived... by its natural parents." While I can acknowledge a right to be born, I find the application of "rights" to an entity not yet actually in existence to be rather too pluperfect for me. The Vatican legalists came up with this "right" as a way to undercut in vitro fertilazation. Using "rights" in this way seems to me cumbersome and unnecessary, but it derives in part from the dominant natural law approach in Vatican thinking. But that's another matter...

    My larger concern -- although I understand it is different from the law's concern in specific cases, because it is how various rights and privileges are enshrined in the law that is really at issue -- is the larger purpose of law in the maintenance of civil society, and how the provision of, in this case, access to marriage (whether a right or a privilege) accomplishes the larger purpose of law: which I take to be the creation of a stable, just and fair society. In some ways, as opposed to a "natural law" ethic this is more of a "virtue ethic" -- and this has application in the history of the philosophy of law. Rights language partakes of the former when it comes to positive law, while I am articulating (poorly) an urge towards seeing law as the means by which virtue is promoted and vice punished or minimized.

    I would base, by the way, the understanding that access to marriage is fundamental to personhood in the account in Genesis 2, where "it is not good for the human one to be alone." The human being has an isolated and individual human nature, but as a social being also becomes more fully realized in society; and marriage is commonly held to be the most basic social unit, variously configured in different societies. Does that, or the inherent duties involved in marriage, render it a right or a privilege? That, it seems to me, is a distinction only important to be made because of cases before certain courts, and how various states treat rights or understand them.

    Thanks for the helpful thoughts. This has been a very interesting and illuminating conversation.

  12. A Mr. Karl Rosenqvist has left a comment which I decline to publish, since there is no need to jar the calm deliberation which has marked the comments thus far on this thread with obscenities, even if they are typographically modified, because everyone still has to read them for what they are. The pollution of Web discourse is bad enough already, and I shall not be an abetter of it.

    You may try again if you wish, Mr. Rosenqvist, but you will draw more support if you think with your brain rather than with your mouth.