Sheridan: Con-Law

SECOND CLASS CITIZENSHIP FOR GAYS

1. Separate is not equal; it is a mark of second-class status.
2. Marriage is a bright line dividing relationships that matter from those that don't -- and it shouldn't be. Retirement and death benefits, hospital visitation and medical decision-making, employee benefits, the ability to use sick or family leave, division of assets when a relationship ends and tax levies are just a few examples of laws granting "special rights" based on marriage.
3. Marriage is no longer the only way people organize their families and relationships.
4. The law should value the families and relationships that people value.

These are just a few of the insights offered by Nancy D. Polikoff, a law professor at American University, in a thoughtful Op-ed published in the L.A. Times, today, in anticipation of the arguments before the California Supreme Court on the issue of whether it is unconstitutional for the law to recognize marriage between men and women but not gay people of either sex.  San Francisco Mayor Gavin Newsom ordered city clerks to grant licenses and perform marriages to gay couples in 2004.  Hon. Richard Kramer of the San Francisco Superior Court, a Republican, upheld gay marriage on equal protection grounds subsequently.  Now the matter is before the California high court.

This issue, and this Op-ed, are good illustrations of how the legal process forces people to think about matters they've taken for granted for so long, as in "Well, of course, marriage should be limited to men and women, not men and men or women and women, for it was ever thus."  That was the sort of argument advanced for so long to support the institution of slavery and racial supremacy, wasn't it.  The power of thoughtful analysis and debate proved powerful enough to destroy such arguments and to destroy or change large institutions built on them.  Here's another to consider:  gays in the military.  Gays fought in the military during WWII, when women were banned from combat.  Now women fight in Iraq.  Why draw the line at gays?  I dunno.  I suppose that the military has arguments not based on prejudice.  It's just that I haven't heard any convincing ones, such as those based on "small-unit cohesion," i.e. the willingness of soldiers to fight and die for each other as part of small groups.  In the Roman army these were called "mess units," meaning the group of four with whom you ate.  You also fought with these other three, and for each other.  You worked with them, marched with them (in those days there were no airlifts or troop carriers), fought and died alongside them.  Apparently the army feels that to introduce gays into such groups would wreak destruction.  The problem with the argument is that it presumes that no gays have ever served in such groups, when they have.  Does this stop the argument from being made repeatedly?  No.  It's hard to give up the only argument you have just because it proves groundless.

Here's what happens when you feel strongly about something and you're rational arguments are all shot down as groundless fears, prejudice, bias, etc.

You make up new arguments, supposedly based on reason.  And then these all prove vulnerable.  All you are left with is, "Because I don't want to."  That's not sufficient in a court of law, except for much of the time when it is.

The problem with tradition is that you can't rely on it.  We have lots of bad traditions that we've left behind, for good reason.  And we have others that we have difficulty letting go of.  Gay marriage is one of them.

The Polikoff Op-ed appears below.

SCHWARZENEGGER VETOES GAY MARRIAGE BILL

So does this mean that the governator is against gay marriage, or is pandering to his socially conservative base?

Not so fast; there's a 3rd alternative:  he may just be vetoing an unconstitutional legislative enactment on the ground that it conflicts with an earlier Initiative that can only be repealed by another Iniative.  It's hard to believe that the sponsors of the bill weren't aware of this and just trying to set up the governator.

The S.F. Chronicle's Bob Egelko has an article on the controversy, below.  Meanwhile the ruling by S.F. Superior Court judge Richard Kramer finding the earlier Initiative, called Prop. 22, unconstitutional as a violation of equal protection, remains on appeal. 

In order to live happily in the U.S. today, it will help if you give up the notions that your race is better than the next guy's (for a long time only one race counted here); that your gender is better than the next guy or gal's (for a long time, etc.), that your sexual orientiation is better, etc., etc., that your views count as to whether your wife or the neighbor gal should be allowed to use birth control or to have an abortion (for a long time, etc.), you get the idea. 

Our ideas have changed about what business is it of yours, and if it's none of your business, it's probably none of government's business, for what is government but us, writ large?