The next stage in litigating same-sex marriage.
Oct 13, 2008, Vol. 14, No. 05 • By ROBERT F. NAGEL
As odd as it may sound, when the California Supreme Court recently declared that prohibitions against homosexual marriage violate the state's constitution, the justices acknowledged, in effect, that relatively little was at stake in the case. As the court said, California's domestic partnership law already extended to same-sex couples "all of the significant legal rights and obligations traditionally associated . . . with the institution of marriage." Thus the forms of discrimination that gay rights advocates usually complain about-involving, for instance, the right to hospital visitation, the provision of health care benefits, parental rights, and so on-were not at issue. What was at issue was whether the state could use the term "domestic partnerships" when referring to same-sex couples while using "marriage" when referring to heterosexual couples.
A naive mind might have expected that gay rights proponents and sympathetic judges would have found the California domestic partnership law a cause for celebration-a sign of significant moral progress-rather than an egregious injustice to be roughly undone by decree. Too sophisticated for such notions, the members of the California court insisted, even as they itemized all the forms of equal treatment required by that law, that the phrase "domestic partnership" created an invidious discrimination. It violated "the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."
In this era of exquisite sensitivity, it might be thought cruel to call into question the importance of this kind of unequal recognition. And, even discounting for politically correct sentimentality, it is true that status does in fact matter. Nevertheless, it is obvious that use of the term "domestic partnerships" does less harm than did such prior practices as, say, using the criminal law to punish private homosexual conduct. Why, then, did unequal recognition provoke such severe condemnation by the California court?
As in so many things, Alexis de Tocqueville is edifying on this question. He wrote of "a singular principle of relative justice which is very firmly implanted in the human heart." This principle, he continued, is that "men are much more forcibly struck by those inequalities which exist within the circle of the same class than with those which may be remarked between different classes." Later Tocqueville expanded on the same thought:
When inequality of conditions is the common law of society, the most marked inequalities do not strike the eye; when everything is nearly on the same level, the slightest are marked enough to hurt it. Hence the desire of equality always becomes more insatiable in proportion as equality is more complete.
Whether or not we accept the idea that the desire for equality becomes more intense as inequality shrinks, it does seem right that it is because homosexuals have achieved so much acceptance in American society, especially in California, that withholding the word "marriage" can seem to some a serious injustice. Perversely, as substantive discrimination diminishes, there is always more to be outraged about.
This principle is built into the widespread judicial practice, of which the California decision on gay marriage is only one example, of defining fundamental rights by generalizing or abstracting the rights already traditionally protected by society. The more a right has been respected by political institutions, the more likely it is that a court will declare it to be morally imperative that the right be extended beyond its existing limits. That, for example, is the basis for the U.S. Supreme Court's campaign limiting the death penalty. And, in fact, it is how homosexual sodomy became a constitutional right.
Tocqueville's "singular principle of relative justice" has some unsettling implications for the struggle over same-sex marriage. First, as the gay rights movement shifts from questions of substantive inequality to questions of respect and status, it will find that there are limits to the effectiveness of judicial remedies. It is true that-because of the public's respect for the judiciary's determinations-minority groups, including gays, have sometimes felt intense moral vindication from judicial victories. And it is also true that such groups have sometimes actually gained significant social status through lawsuits. A judicial order striking down a state statute, however, does not erase the popular opinions underlying that statute. A gay "marriage" required by court order does not necessarily indicate that the public respects or honors such marriages in the same way it respects and honors traditional marriages.
This blunt fact can be ignored or avoided by some, especially in the euphoria that accompanies major litigation victories. But as time goes by, nagging doubts about what the public actually thinks of gay marriage are likely to arise. In the case of California, where an initiative to reestablish the traditional definition of marriage will soon be put to the vote, the precariousness of judicially imposed status may become glaringly apparent.
Even in the absence of political events like the California initiative, same-sex couples will continue to be bombarded by all the cultural signals that extol heterosexual love and marriage. Indeed, now that a court has required that homosexual couples be included within the circle of marriage, such couples may feel increased sensitivity to the remaining signs that many Americans do not view homosexual marriages as being worthy of as much respect as traditional marriages.
Thus it is to be expected that judicial victories like the one in California will be followed by intensified efforts to sanitize public discourse, to eliminate the pervasive bias in favor of the familiar ideals of heterosexual romance and marriage. Libraries and schools, of course, will continue to be special targets, but the bludgeon of disapproval will gradually be extended to songs, conversations, jokes, and other informal aspects of popular culture. Of course, the ancient heritage under attack cannot be eliminated, but damage can be done. Consider a single example: On marriage licenses the rich words "husband" and "wife" will be replaced by "partner one" and "partner two." Needless to say, it would deny equal recognition to have two different marriage license forms, one retaining the old terminology and one utilizing the new.
Proponents of same-sex marriage often claim that allowing gays to marry cannot damage heterosexual marriages. They ask rhetorically, "How will allowing us to marry affect your marriage?" The California Supreme Court itself asserted, "Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple . . . of any of the rights and benefits conferred by the marriage statutes." But the institution of marriage is not defined or sustained only by law. It is also defined and sustained by literature, by music, by religion, and-less grandly-by the terms of ordinary conversations and everyday interactions. If same-sex marriage advocates continue to rely on courts to change the legal definition of marriage, these cultural supports will come under intensified attack. And that will harm a vitally important but already beleaguered institution.
Robert F. Nagel's most recent book is Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction, 2008). A version of this article appeared as a part of an Internet debate sponsored by the Federalist Society.