Courtesy of the Gay Marriage Debate: the importance of moral principle

Dinesh D'Souza, a pundit I respect less and less recently, has another misinformed column on Townhall today. It's about the California Supreme Court's recent decision on gay marriage, and it - unsurprisingly, considering who the author is - gets a good bit of the facts on the case wrong. Because this is fun, let's go through what they are:

Now the high court of California has made gay marriage into a right that is immune from restriction by the majority of citizens in the state.

and

The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. ... It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights.

Well, at least he's right that there is no enumerated "right to marriage" in the California State Constitution. Of course, the Court itself says as much in its ruling, in which it also spends close to 100 pages going over an exhaustive list of precedents stretching back to the 1930s and continuing up to the present day of California state courts treating marriage as a fundamental right under Article I sections 1, 7 and 9 of the state constitution. Whether D'Souza agrees with this precedent is, of course, a different matter. I myself, for what it's worth, do not. But the point is that the Supreme Court most emphatically DID NOT just "make" a right to marriage that didn't previously exist. It is a "right" that has been recognized by California law for some time now, built on a foundation of numerous rulings and affirmations over decades.

Oh, but wait, D'Souza was talking specifically about gay marriage when speaking of rights that aren't enumerated in the California Constitution. Oh, well, that's alright then. Or ... not ... because if we're talking about specifically enumerated rights, then neither is there a right to any kind of marriage in the California Constitution. Interestingly, D'Souza doesn't seem to have a problem with all those years of precedent that nevertheless establish a right to heterosexual marriage. So which is it? Courts have the authority to read in unenumerated rights - in which case this court may, with proper reasoning, read in a right to gay marriage - or they may not, in which case it isn't clear where California Courts got the authority to overturn the state's statutes prohibiting interracial marriage in, e.g., Perez v. Sharp? Maybe D'Souza would like to come clean and publicly state that the decision in Perez was wrong too?

More to the point, D'Souza is skipping over the substance of the Court's ruling here. The Court did not "make" a right to gay marriage at all. In fact, it specifically affirms the state's right to decide, through democratic means, to restrict marriage rights only to certain classes of citizens. What it - quite interestingly - chooses not to allow is the situation of extending the same substantive rights to different groups of people under different names. Yes, goofy though that sounds (and goofy though that is), the substance of the Court's argument is that giving gays all the benefits of marriage and then calling it a "domestic partnership" is what's wrong.

It's a tortured bit of logic, granted. After all, the Court's reasoning here is that naming rights different things for different groups is a prelude to discriminatory treatment, and yet it affirms in other portions of the ruling that such treatment is the perrogative of the state should it choose, say, not to extend "domestic partnership" rights to homosexuals. The point is not to support the Court's "reasoning" here (which I do not), but simply to call attention to the fact that D'Souza apparently doesn't know what it is.

This is made all the more clear by his strange assertion that the Court relies on the Fourteenth Amendment in reaching its decision. In fact, it does not. It mentions it in the ruling, but the ruling itself is based entirely on California statutes and precedents. The relevant "constitution" mentioned is the state constitution, and the "equal protection clause" cited is, in fact, Article I section 7 of the same.

From there we venture off into conservative la-la land, recycling the same reductio ad absurdum arguments that have become, increasingly less convincingly, a staple of right-wing commentary on the issue.

Now gay activists, with the acquiescence of the California high court, want to remove one of the criteria of marriage while keeping all the rest. Yet if it's discriminatory to gays to require that marriage be between a man and a woman, why isn't it discriminatory to Mormons and Muslims to require that it remain between two people? Isn't incestuous marriage also between "consenting adults" who have a right to equal protection of the laws? And why doesn't the Fourteenth Amendment protect the fellow who wants to walk down the aisle with his poodle on the grounds that "I love my dog and my dog loves me"?

The last one is so silly it's hardly worth responding to. C'mon, D'Souza - have you ever seen a reference in any portion of any laws anywhere in the world to an animal's "informed consent?" Jesus Christmas - if you can't have a contract with a dog, and if a dog can't vote, and if a dog can't apply for a driver's license, then it isn't too terribly taxing on the old gulliver to imagine what legal process we might employ to prevent a dog legally consenting to marriage.

As to all the other questions, the simple answer is "why not indeed?" Honestly - can anyone come up with a good reason why Mormons and Muslims shouldn't be allowed to continue the well-established traditions of their respective faiths and enter into polygamous marriages? Provided there is consent all 'round (meaning that all members are of legal age, etc. etc.), what is honestly the problem? Why should the Judeo-Christian tradition take precedent in this nation that's supposed to guarantee religious freedom? Ditto the situation with incest. No doubt D'Souza would respond with completely convincing scientific evidence of the nasty consequences of such a couple breeding. Fine, we'll prohibit them having kids of their own. But if two grown adults decide to enter into a lifelong partnership, isn't that their business? Where is the compelling government interest in preventing this? Just to reiterate, if there's a compelling government interest in preventing reproduction between such people, so be it. But what is the interest in preventing their marriage? After all, the western tradition on which D'Souza imagines California's marriage laws are exclusively based has frequently tolerated such marriages. To condemn them on the basis of tradition, D'Souza would need to be in the awkward position of explaining why "tradition" starts in the 1930s as opposed to the 1500s.

Now, to give credit where it's due, the rest of this is actually quite sensible. D'Souza explains that he accepts that there are important differences between polygamy and gay marriage, the point is simply that "discrimination" of some kind or another is built into any government recognition of a privilege for some groups and not others. "Consequently," he concludes, "it's unreasonable to say that gays have a constitutional right to override the definition but other groups do not. The court's real justification seems to have little to do with constitutional reasoning and everything to do with an assertion of political power."

Yes, correct. That's exactly what's going on here, and good of him to call them on it. He then goes on to say that to the extent that a particular group seeks to redraw the definition of marriage so as to include itself, it needs to take its case to the legislature and not to the courts. Again, quite correct. As a libertarian, of course I would prefer that marriage remain under the auspices of private contracts, but so long as the state reserves to itself the right to define and regulate "marriage," then the proper venue for modification is indeed the legislature (or also ballot initiatives, in California) and not the court system.

But that still doesn't answer the questions he raises. Why, indeed, are conservatives so opposed to polygamous and incestuous marriages? Why is this a compelling state interest? Why, for that matter, is there a compelling state interest in preventing gay marriage? The obvious answer seems to be that there is no such interest, and D'Souza is merely arguing for the right to enforce his prejudices at the ballot box. I can see how that's better than enforcing one's prejudices through the Court system, as gay rights activists are wont to do, but in both cases we're enforcing prejudices, grabbing for our own groups legal privileges that no rational foundation in natural law grants to them to the exclusion of others. D'Souza's only claim to moral superiority over his opponents here, in other words, is that he feels more compelled to follow legal orthodoxy than they do. Well ... grand! But he doesn't seem to feel especially compelled to justify his voting choices in any way, which doesn't do very much for his reputation as a responsible citizen.

The lesson here is, I think, for everyone. All of these questions that D'Souza raises are in fact questions that D'Souza and conservatives need to answer, but so long as gay rights activists insist on subverting proper legal procedure and going through the courts to secure to themselves something that D'Souza rightly argues is not a natural right but a legal privilege, they allow conservatives like D'Souza to obscure the issue. It was never their intention, of course, but that's the consequence of all this. Rather than asking important questions of conservatives, like "where does your right to marriage come from?," they are content if courts simply hand them what they want - and, apparently, any old basis for that will do.

Neither side looks particularly good from where I stand. Gay rights activists are apparently unconcerned with legal procedure, or with the damage to the fabric of a functioning democracy that encouraging courts to subvert it can do. Conservatives are thereby able to assert a legal right to enforce their prejudices at the ballot box without having to deal with the harder questions of where their prejudices come from or why they should be law, simply because, by comparison with the people who filed the bogus lawsuit in the first place, they look like the ones playing fair.

The truth, of course, is that neither side is playing fair. "Fair," in a pluralistic democracy, means affording people as much leeway to live their lives free from interference as can be tolerated. If conservatives can demonstrate no compelling state interest in securing only to heterosexual couples the property and decision rights that go along with marriage, then we need to get on with getting the state out of the business of regulating and defining marriage. Thanks, however, to the gay rights activists who insist on taking these issues to court, it's even money that the voters of California will vote to amend their state constitution in the fall to include in it a statute that belongs in no constitution. Yes, California will then be in the bizarre situation of having, among its fundamental laws, a definition of marriage -- as if any such thing has anything at all to do with the basic functioning of law in California or any state. Good for the lawyers and the citizen activist groups; bad for the rest of us.

The principle being illustrated here is this: society can save itself a lot of needless grief by getting it right the first time. Just leave marriage to private contracts already. That's an equal-opportunity solution that leaves conservatives free to call gay marriages "domestic partnerships" without stepping on anyone's fundamental property rights and gays themselves the equal legal representation of their unions that they so crave. Perhaps best of all, it gives the courts something better to do than rule that a group has a "right" to call partnerships "marriage," even though the court declines to say whether they have a right to the partnership in the first place.

Or whatever.