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.