Legal Debate Over Gay Marriage Continues to Shift

Professor Eastman?

JOHN EASTMAN: What's going to occur as a result of the California Supreme Court decision has already occurred in California as a result of a statute enacted a few years ago, providing domestic partner benefits.

In fact, one of the basis of the court's decision is that because California has already provided almost everything that comes along with marital status, that it's inappropriate to continue to deny the name of marriage, as well.

RAY SUAREZ: Professor Cruz?

DAVID CRUZ: I think that's basically right. The state has already substantively provided nearly all of the legal consequences of marriage that California controls, to same-sex couples who entered a state-registered domestic partnership, and has prohibited discrimination on that basis, so employers really should not face significant, if any, discernible changes in their policies.

RAY SUAREZ: Glen writes from Seattle, Washington, "I've always wondered how a referendum could go into effect if it was blatantly discriminatory? In other words, California will have this referendum overturning same-sex marriages on their ballot. What makes it any different than if they passed a referendum in 1950, outlawing marriage of 'negroes to other negroes?' Would that make it on the books? Why is that any different?"

Professor Cruz?

DAVID CRUZ: Well, Glen's question is a good one, in part, because the court has long said that the people do have a fundamental right to revise their constitution through their -- I'm sorry -- to amend their constitution through the initiative process. Again, an amendment being a smaller change, more consistent with the keeping of the current constitutional order than a revision would be.

That means that since this state Supreme Court decision was based on the California constitution, the people retain the power to change the meaning of that constitution, through either an amendment process, or a revision process. And that's the way that basically holds true throughout the 50 states of the U.S., in our scheme of government.

The people do retain ultimate authority over the meaning of state constitutions, and through the more cumbersome procedure of amending the federal Constitution, they retain power over its meaning, as well.

RAY SUAREZ: Professor Eastman?

JOHN EASTMAN: Yeah, I think it's important, in response to this question, to distinguish these two cases -- the race case and the same-sex marriage case.

The definition of discrimination means treating the same thing differently. And the argument, of course, by those that oppose same-sex marriage is that same-sex marriage and heterosexual marriage are not the same thing. That, because they are fundamentally different in the nature of the relationship between opposite genders, and the procreative function that comes with that -- and not -- that you are treating different things differently, and that's never been understood to violate equal protection.

The radical change in the California constitution has already occurred, and it occurred when the California Supreme Court, for the first time, read a clause in the constitution different than it had ever been understood for the first 150 years of the constitution's existence.

And so, you know, the notion that somehow the people can't clarify and say, "Look, we never meant that, we're not going to permit it. This is a fundamental policy change, it ought not to be mandated by the court. If we're going to do it properly, it ought to have been done through the legislative process, not as a judicial mandate" -- and so there's this who crew people -- whether they agree with same-sex marriage, or not, and this is not something that the courts ought to be dictating to us.

We ought to have a full policy discussion about it.

RAY SUAREZ: Professor Eastman, a large number of questioners wanted to follow up on just that point you made about the traditional understandings and intents of marriage.

Gordon writes, from Worcester, Ohio, "You made a point that marriage is traditionally tied to procreation, however, a great many men and women marry each other without any intent of having children. Many marry far past the childbearing age."

Flint in Brooklyn, New York adds, "Since a large part of the argument against same-sex marriage revolves around a linkage of marriage and procreation, society neither requires that parents marry, nor that married couples bear children, nor that prospective heterosexual couples demonstrate fertility. Why is this linkage assumed?"

JOHN EASTMAN: Well, the linkage is assumed, because in the overwhelming majority of cases, it turns out to be true.

And we don't require perfection in this, we don't want to say, you know, "Have a blood test, are you going to be able to have children or not?" But, as a societal institution, the reason that marriage has been developed the way it did is because of the complementariness of the sexes, and the ability to, you know, produce the next generation. This is a very fundamental thing that society requires.

And what we have done in the past is foster, and support, and subsidize that relationship, so that in the majority of them, we will, in fact, have that procreation, and the generation of children, the education of children, by the two people in the world most committed to their success, and that is the natural parents.

All of that is, you know, kind of the law of averages, and it works out very well. To change that basic, fundamental relationship, or that institution is a major policy judgment.

And the whole point has been, that if you're going to make such a radical change in the policy of the state, that that's something that ought to be engaged in by the deliberative legislative process, not to be mandated by the court, as has happened both in Massachusetts and California, now.

RAY SUAREZ: Professor Cruz?

DAVID CRUZ: I would just agree strongly that this is a fundamental change. I think that the argument that it is and its policy has to go through the legislature are, indeed, precisely the arguments that we saw in the dissent in the interracial marriage cases that the California Supreme Court decided in 1948, interpreting for the first time in 80 years, a provision of the federal constitution, the equal protection guarantee, that had never been held -- with one overruled exception -- to apply to marriage.

So, I don't think the two cases are as distinguishable as Dean Eastman does.

Moreover, I think that most people would find it rather unusual to think that their friends and relatives and neighbors who didn't have children, or couldn't have children, were not properly included in marriage, and were just there because we weren't demanding a perfect process.

JOHN EASTMAN: Yeah, I want to go back to this, because I think it's important that this distinction between the race cases, and the same-sex marriage cases. The color of one's skin is irrelevant to the marital function. The gender of the people involved in directly relevant if there's any lingering aspect of marriage as serving a procreative function.

And to suggest otherwise, as Justice Marshall does in the Massachusetts case, is really dishonest.

The only way you can say that the color of one's skin is relevant to this, is to go back to these kind of terrible policies of the Eugenics Movement -- Margaret Sanger, the Founder of Planned Parenthood, and some of these things of the earliest 20th Century.

The court rightly rejected that, and rightly said, "We're not going to accept such arguments as irrelevant to this." But that left you with skin color, which has no bearing, whatsoever, on the marital relationship. Whereas gender, does.

And to not see that basic distinction, and to not say that what's going on here now is something radically different than has ever gone on before, I think, again, is just, on the part of the courts, is fundamentally dishonest.

Large numbers of children in the United States are now born to people who are not married to each other. And we, so far, have not seen fit as a society to have our legislatures draft civil practice that puts impediments in the way of those children, in order to continue to benefit marriage.

The idea that marriage is the favored way to bring up families is certainly, strongly reinforced by the culture, and the way we talk about our common life.

But, when you look for it in law, we get a little squeamish about -- as a people -- about putting in strong benefits for children who are born to married couples, as opposed to children who are born to unmarried couples, a group now that's increased with every census for the last four decades.

JOHN EASTMAN: That's right. But there's a basic difference between the two cases. In the 1960s, the trend for no-fault divorce, or to co-habitation, and the creation and rearing of children outside of marital relationship was done by legislature -- legislative judgment -- it was not mandated by the courts.

And that means that if the people look at what they wrought with those legislative policy changes, say, you know what? Forty years later, with the illegitimacy rate skyrocketing, the number of societal problems that many tag to that, although it's hard to prove causation, one way or another, that maybe we oversold the liberty interest back then, and maybe we ought to come back towards some of the old. When these things are made as legislative policy judgments, it's an easy matter to change it back again, by the legislature.

When they are, instead, compelled by a novel interpretation, a novel reading of the constitution by the court, then it's a much more difficult task for the people to shift and to adjust their policy judgments on a going-forward basis.

RAY SUAREZ: Professor Cruz, what about that idea? There are certain changes that, when you make them, they can be watched over time, and unmade, if that's the distilled will of the people.

But there are other changes that, once you open the door, it's pretty hard to un-do.

DAVID CRUZ: Well, I think Dean Eastman is correct, that it is more difficult in California as in many jurisdictions for the people to act to change a constitutional ruling, and undo it after observing it in practice, than to change in an ordinary statute; I don't think that's deniable.

But, part of the point of this, is that we don't simply live in a mobocracy, we live in a democracy, and more importantly, we live in a constitutional Democracy, where that is an intended consequence -- it is supposed to be difficult to make certain sorts of changes.

And indeed, our state Supreme Court has told us that, and I quote, "probably the most fundamental principle of separation of powers, lies in the power of courts to preserve constitutional rights, whether of individual, or minority, from obliteration by the majority."

JOHN EASTMAN: But here's --

RAY SUAREZ: Go ahead, Dean Eastman.

JOHN EASTMAN: But he's talking about preserving rights that never existed before, and treating it as if the court is trying to stop an onslaught of taking away the marriage rights of same-sex couples that had existed previously.

Because it never existed before, the change that has occurred is the court mandating something that never existed, not trying to preserve rights that had always been there. And that's a fundamental policy change that went -- did a complete end-run around the deliberative process.

Now, I will say this. The California Supreme Court's decision is much more intellectually honest than the Massachusetts decision was. It found that sexual orientation was a suspect classification, and therefore it required heightened scrutiny.

Now, I disagree with that judgment, but it's at least intellectually coherent, that when you subject the marriage laws to strict scrutiny, that you would get this kind of outcome.

What the Massachusetts court did is say, "There's no suspect classification, this doesn't even pass rational basis review," the lowest level of proof that can be applied for policy judgments, or legislative judgments of the state.

And to say that it doesn't pass rational basis review was so academically, intellectually dishonest, that it was hard to take that case.

Now, I know why they did it. They did it because to say that sexual orientation is a suspect classification, opens up a lot of doors that people did not want to open. Sexual orientation is much broader than just homosexual orientation, it includes bi-sexual orientation, for example. And when you tie -- when you recognize that, and then subject bisexual orientation and the question of marriage to strict scrutiny, then, you know, you have to ask the question of, why is the line drawn at two, and not three, since the only way a bisexual orientation person can fulfill their marital interest and fundamental right to marriage, would be with three.

Those things are now open as a result of this strict scrutiny, I think it's why Massachusetts didn't go there, but it's one of the great dangers of what the California Supreme Court has done.

DAVID CRUZ: I think that Professor Eastman's characterization of bisexual people trades on stereotypes of them as voracious, as unable to be satisfied with a partner of one gender, as opposed to simply being open to the attractions of both genders, and as fully able to commit deeply in love to another person.

So, I don't see that as a problem.

But, I think that Dean Eastman really hit on what, in my understanding, is really key to the California Supreme Court's decision when he said, "Look, this group of lesbian, gay and bisexual people are defined by a suspect classification, they're a group that has a long history of discrimination, and therefore, we are going to demand more carefully tailored laws."

Dean Eastman correctly stated earlier that ordinarily courts don't demand perfection. And they don't demand perfection even when they apply this strict form of scrutiny to discrimination like this one.

But if you do, as he suggested, you can get to the result, and I think you should get to the result, that our actual marriage laws -- not some hypothetical justification about procreation, but the way they are actually configured -- does not allow you to draw a sensible distinction between same-sex and different-sex couples.

If, however, the legislature, or the people of California were determined to say, "Okay, yeah, we're just going to let marriage be people who procreate on their own," so exclude heterosexual couples who don't want to have children, exclude heterosexual couples who can't have children on their own through their own in-house genetics, then that would pose a different question, and you would see a better way in which same-sex couples and different-sex couples look different, as Dean Eastman was suggesting.

But, I suspect the electorate's not willing to do that.

RAY SUAREZ: We got a lot of questions on legal rights, on constitutions, and when constitutions trump, and when they don't trump the stated will of the people.

Stan writes from Roseville, "If the courts have ruled same-sex marriages as a constitutional right, how can a California voters' initiative in the fall overturn that right? Popular opinion must yield to the constitution, correct? Even legislation by Congress cannot annul that right, can it?"

Professor Eastman?

JOHN EASTMAN: Well, yeah, that -- I think -- is an easy question. It depends on what kind of initiative it is. If it's just a statutory initiative, then the questioner is correct that that can't overrule a constitutional provision of the court.

But, if it's an amendment to the constitution, by definition, it's changing the constitution, and the court's decision gives way to the will of the people, as expressed in the higher authority of the constitution.

Then you have another layer of constitutional law, if what we do in California gets challenged in the federal court as violating the federal Constitution, what the U.S. Supreme Court says about the U.S. Constitution would prevail, and then, of course, the people would have the final say there, as well.

If they didn't like it, they could amend the U.S. Constitution, and say, you know, whatever they want on this particular subject, and if that amendment happens, that becomes the constitution.

The courts are there to give effect to the constitution, because we think given the way that constitutions are passed, that they reflect higher law than mere statutory authority of the legislature, or mere statutory initiatives by the courts.

RAY SUAREZ: Professor Cruz?

DAVID CRUZ: I think that's exactly right and very well said.

RAY SUAREZ: Susan Hackett writes from Mercer Island, Washington, "Why doesn't the Full Faith and Credit clause of the constitution require states to recognize legal, same-sex marriages performed in California and Massachusetts?"

Professor Cruz?

DAVID CRUZ: The Full Faith and Credit clause of the U.S. Constitution, the federal Consitution, is one that provides certain requirements of states to recognize each others' legal action, and it has been held to require other states to fully recognize judgments.

So, if you say, "You broke your contract to me," and you go into the court and you get a judgment from the court, you can go into another state and they have to recognize that.

But if it's just another states laws, and you want to apply another state's laws to your dispute, for example, about marriage, the courts have long said that laws can be disregarded by other states, states can legitimately, in our federalism, prefer their own laws, as long as they have a legitimate public policy.

The thing with marriage is, you don't get married through a court order, there's not a judgment, there's not adverse litigation.

And so there is no case that I've come across, or there's any scholar in this area that I've read has come across, that actually says marriage is the type of thing that you have to give Full Faith and Credit to.

When you get divorced, you go to a court, and you do have parties who are antagonistic, because they were, at least in some degree, separating from a marriage to which they had committed -- divorces, if they were properly rendered, have to be recognized, but there is not any case law that has ever held a marriage to be required to be recognized.

RAY SUAREZ: Professor Eastman?

JOHN EASTMAN: Yeah, let me add to that. I mean, the clause actually says that "full faith and credit shall be given in each state to the public act records and judicial proceedings of other states." I think the more important part of the clause, though, is the next provision which allows Congress to provide for, exceptions to that.

Now, Congress has provided for an exception to that, with the Defense of Marriage Act, saying that no state needs to recognize a same-sex marriage undertaken in other states.

And the reason for that is very important. Otherwise, California's rule would now become the rule the rest of the country. And California would have imposed its policy judgment, or its rather in court policy judgment, on the rest of the country, to the other states in the country's differing views, notwithstanding.