When Common Sense Isn't Enough

I've set out my own views on gay marriage and equal rights for homosexuals in earlier posts here and here.

My argument has always been one of strategy, not results.

I still think establishing civil unions in all fifty states would be the quickest and most effective way to bring the right of marriage to all citizens regardless of sexual orientation, but the direct litigation campaign has taken precedence.

Today's federal district court decision in Perry v. Schwarzenegger is the first fruit of the direct litigation route and has brought the constitutional arguments concerning gay marriage sharply into focus.

Gay marriage proponents could hardly ask for a more common sense and matter-of-fact exposition on how California's Proposition 8 fails to pass constitutional muster.

While I'm persuaded by the reasoning, and take a professional interest in the craftsmanship, I also recognize I'm sympathetic with the outcome.

The more rational me recognizes that Judge Walker's decision rests entirely on a legal house of cards -- a very generous articulation of "fundamental rights."

The history of this debate over "fundamental rights" is as long and contoured as the history of the nation itself.

The current composition of our Supreme Court manifests a certain chapter in that debate, but a chapter which is highly unlikely to establish same-sex marriage as fundamental.

This Court is dominated by a political desire to circumscribe the expansion of "fundamental rights;" counterbalanced at the margin (Justice Kennedy) by a libertarian distrust of the state's authority to punish or sanction certain behaviors.

The identification of same-sex marriage as a fundamental right is not simply unpersuasive in their eyes. It's an incitement. A blatant example of how unprincipled and unhinged our constitutional jurisprudence has become. Further evidence of how unelected judges oppress individual conscience by championing their own personal values as "fundamental rights."

Indeed, the current court may prove to be the high water mark of this tide against expanding fundamental rights. Perversely, a Supreme Court ruling in this case may prove to be a sign that tide has begun to ebb.

Let's assume Perry works its way through the Ninth Circuit this year and reaches the Supreme Court in their October 2011 term. We should see a decision in June 2012, almost certainly reversing the district court, very likely on a 5-4 vote.

The final word? Hardly.

November 2012 we vote once more for president.

Will Perry be a symbol of the Supreme Court restricting our individual freedom to choose a mate or will it be a symbol of the Supreme Court vindicating the sanctity of the institution of marriage? You want to know where the majority of voters stand nationally, just watch the Republican Party squirm these next two years.

As with the abortion debate, same-sex marriage is an argument they don't want to win because the on-going debate is so valuable to them as a recruitment and fund-raising tool. The aggrieved and oppressed retain a unity in their opposition which falls apart in their ascendance. Republicans do much better as victims in opposition.

It's going to be messy and it's going to get loud, but that's how this conversation plays.

In terms of constitutional jurisprudence, I think same-sex marriage is a matter of equal rights and not fundamental rights. The equal rights argument is irresistible. The fundamantal rights argument is implausible until the vast majority of Americans are persuaded this is a matter of equal rights. Once that occurs, equal rights are fundamental rights. That is simply a matter of time, but it's clear from today's decision in Perry, it will be a long and winding path.

Gay Marriage (continued)

Ruth Sylvester and Don Kreis just about cover the "pro" arguments in favor of gay marriage, now a legal fact in Vermont (and -- tentatively -- Iowa). I can't argue with their positions because I agree with their goals. I only question the means.

In my opinion, widespread tolerance of homosexuality in American culture -- like tolerance of divorce, Catholicism, and racial diversity -- is simply a matter of time. How much time will be a function of political and legal strategy by both proponents and opponents.

I'm concerned that, by focusing on "gay marriage" rather than equal rights, we are prolonging the battle potentially by many years and at significant cost.

Specifically, how will those states respond where a majority may be hostile to the concept of extending marriage to homosexual couples?

Amendments to state constitutions are one proven method. Iowa may prove to be an important battleground for that approach.

Federal courts will be hard-pressed to adjudicate these conflicts and the US Supreme Court will eventually have their say. Justice Kennedy's opinion in Lawrence v. Texas is an instructive primer to the constitutional contours likely to be applied throughout the federal courts. I simply cannot envision Kennedy's equal protection rationale being extended to gay marriage by this iteration of our Supreme Court.

Finally, there may be a federal constitutional amendment campaign restricting marriage to heterosexual relationships.

I am concerned that all of these legal and political battles will now likely revolve around the question of marriage, rather than the question of equal rights. I think that debate plays to the hands of those implacably opposed to gay marriage. We'll see.

Ruth's point about the importance of words and social recognition is well taken. I appreciate the emotional, visceral importance of this issue to many people who have experienced decades marginalized. Unfortunately, Ruth's point cuts both ways. The visceral, emotional content given the word "marriage" is a potent rallying cry for opponents as well. Their viewpoint is not simply a matter of bigotry, something perhaps more difficult to discern from this part of the country.

I also salute Ruth's broader point, suggesting that the road to equality is neither straight nor well-marked. A national struggle over gay marriage may ultimately be the best vehicle for establishing equal rights and broader tolerance. Or that struggle may ultimately result in a national separation of civil union and social marriage ceremony both Maureen and I are advocating. I am cognizant that the "Letter from the Birmingham Jail" critique of gradualism may apply to me here as well.

The adventure continues . . .

A Different Take on Gay Marriage

It's been almost a decade since the unprecedented civil debate here in Vermont over the question of gay marriage, equal protection, and civil unions. I will always remember those evenings sitting in our kitchen listening to VPR live coverage of the statehouse open microphone sessions, as Vermont residents took turns speaking their minds for all to hear.

Struggling with my own thoughts, I came to appreciate the crucial difference between civil rights and social recognition.

Civil rights are those individual rights of conscience, choice, and self-determination which are protected by our laws. In Baker v. Vermont, the Vermont Supreme Court recognized the fundamenal inequity faced by homosexual couples who, as legally competent consenting adults, had chosen to share their lives with one another but whose choice had no legal protection. The Court, at that time, ruled that these couples must be given equal protection under the law, but left it to the legislature to devise the means.

The Baker decision framed the debate for the people of Vermont in terms of simple fairness. Whatever one's feelings regarding homosexuality in social or religious terms, one had to face a question of fundamental decency and, ultimately, privacy. If people choose to unite their lives as a household and family, how can our society deny them the right to share the complicated, difficult medical, financial, and end-of-life decisions that viscerally define household and family within broader society?

That argument is both effective and, ultimately, instructive. Doctrinal objections to homosexuality pale for most people in the face of the human choices and human struggle we all share, regardless of sexual orientation. Recognizing our common struggle with those fundamental questions begets greater tolerance of homosexuality and a better appreciation of the civil rights we all wish for ourselves and must afford one another. We saw as much here in Vermont as, in a matter of a couple years, civil unions went from being a controversial bill, to a contested law, to an election year rallying cry, to an uncontested matter of civil law.

That argument doesn't extend to gay marriage.

The problem is marriage. Marriage conflates the legal protections granted a couple's commitment to one another with the social recognition of that union.

Vermont's civil unions debate clearly delineated the two. Civil unions acknowledged that the state has no business discriminating against, or interfering in, the private decision to join oneself legally to another. Like the civil marriage license I got in Tracy Hall before we were married, civil unions do not guarantee that others will approve of that private decision, only that the state acknowledges that choice and the legal privileges that choice entails.

In terms of civil rights and equal protection, both Vermont and homosexual Americans would be better off if, rather than enshrining gay marriage, we instead extended civil unions to heterosexuals, replacing the marriage license with a civil union license. With a universal civil union license, both homosexual and heterosexual unions would be on an equal footing legally. The matter of social acceptance and definition of marriage would be left to the religious and social institutions those couples choose to sanctify and celebrate their union. Many faiths and institutions will allow "gay marriage" ceremonies and many will not. Whether a couple calls themselves married or partners is left to social norms, but the rights inherent in that choice to join together as a household and family would be supported by law.

It would also create the legal framework for extending similar rights throughout the country, not as an "assault on the institution of marriage," but as a matter of fairness and equality. That legal framework, firmly planted in the language and law of civil rights, can prevail across the country and in the federal courts. Both women's sufferage and the civil rights struggle of African-Americans followed a similar course, eventually recognizing that our laws should and must prohibit discrimination, but cannot legislate social acceptance.

In this respect, the gay marriage campaign can only become more entangled in the confusion between social acceptance and civil rights. The longer and harder proponents demand that the social institution of marriage be extended to gay couples as a matter of law, the more their campaign for civil rights will be stymied by a social backlash to an effort to redefine "marriage." A large number of states have already amended their constitutions to prohibit gay marriage. I don't see this Supreme Court striking down those state constitutional provisions on the basis that "marriage" is a fundamental right. I do see a real risk of the civil rights question being hijacked by social conservatives nationally and a long, acrimonious campaign to amend the federal constitution to prohibit gay marriage nationally.

The politics of gay marriage may work in Vermont, but it's a loser nationally. The civil rights struggle encapsulated in our pioneering civil unions law may not give good-hearted Vermonters the same sense of accomplishment, but it's a legal juggernaut that could and should eventually transform the nation. I am proud of my state for pioneering that path, forged from an open and difficult debate. This next step, I fear, is actually a step backwards.

The Marijuana Paradox and the Right to Sin

Windsor County State's Attorney Bobby Sand's Forum letter in today's Valley News is worth a ponder. Sand frames the decriminalization debate in terms few have acknowledged and effectively exposes the political motivations behind the hyperbole. It might also be read as a gracious gesture towards Governor Douglas who has been on his back heels over marijuana since the day he tried to make populist hay of Sand's prosecutorial discretion in the Martha Davis matter.

Sand's thesis is straightforward: Our national drug policy is a tremendous drain on law enforcement resources with very little to show for the effort. With marijuana use widespread, a significant minority of voters against criminalization, and thousands of lives disrupted by arrest and prosecution for marijuana possession, we need to reconsider our drug policy -- and marijuana laws in particular -- in a rational and dispassionate manner. Political ambition, expressed in the sanctimonious manner Jim Douglas exhibited this past autumn, does not help.

I would go a step further.

I've seen people I care about destroyed by illicit drugs -- even marijuana, which I would otherwise consider a less addictive substance. I've seen people I care about destroyed by alcohol abuse. I've seen the lives of people I care about shortened and weakened by addiction to tobacco. Having witnessed the price of addiction firsthand, I cannot say decriminalizing illicit intoxicants -- or greater access to licit ones -- is a good idea. But that's not the issue.

There are plenty of things Americans are allowed to do that aren't good ideas -- some which utterly repulse me. I don't think flag and cross burning are a good idea, but I accept that those too close-minded to recognize the deep insult of their actions have the constitutional right to make fools of themselves. The pornography industry is huge in this country, deemed an exercise in free speech protected by our First Amendment. The idea of watching other people have sex doesn't do it for me, but I accept that millions of Americans will pay good money for the vicarious thrill. I don't think pornography is a good thing for the actors or the audience, but that's not the issue.

The issue is one of individual liberty and the extent to which our laws may limit individual liberty for the benefit of society as a whole. The issue is our right to sin.

Take tobacco for instance. Unlike alcohol -- an illicit drug in this nation for a decade -- tobacco has never faced a complete legal prohibition. While there are likely some beneficial characteristics to tobacco consumption, there's really no question smoking and chewing tobacco regularly has a serious, progressive, negative impact on the health of the user. By law, we've prohibited the sale and use of tobacco by minors on the principle that minors do not have the mature capacity to choose what's best for themselves. By law, we've recently prohibited smoking in indoor public spaces on the principle that workers employed in those spaces aren't truly free to avoid the secondhand smoke. Compared to the outright prohibition on alcohol in the 1920's and on marijuana today, these are relatively nuanced measures to balance public health concerns with individual liberty -- not unlike the balance we've struggled to maintain with regard to free speech.

Can we find a similarly nuanced approach to marijuana and other illicit intoxicants? Can we recognize the individual's right to be intoxicated balanced against society's right to be protected from secondhand injury due to that individual's indulgence? I cannot imagine why not. But that question -- the proper balance between an individual's right to sin and society's right to be protected from injury -- isn't even on the table for discussion.

Why do we recognize and protect the rights of the pornographer, the drinker, and the tobacco smoker, but deny adults the right to mistreat their bodies using other intoxicants? Certainly, the pornography, tobacco, and alcohol industries are now so well entrenched financially that they can mount an effective defense against legislation seeking outright prohibition. But that can't be the whole answer, as social mores regarding alcohol, tobacco and pornography have shifted substantially over the decades; alcohol and tobacco treated more stringently since the 1960's and pornography actually finding wider acceptance within the mainstream.

Ultimately, it may simply be a matter of majority rule. A lot of people like the intoxication of alcohol and nicotine. A lot of people like watching other people have sex. Not enough people like the intoxication of marijuana, methamphetamine, or opiates to tip the political scales against prohibition?

Unfortunately, the cost to this minority -- their families and neighbors -- is horrific. By driving the market for these intoxicants underground, we've abandoned millions of people to a criminal underworld which mocks the law-and-order sanctimony of our politicians. Selectively denied their right to sin -- their addictions arbitrarily criminalized -- we feed a cycle of property crime, prostitution, and exploitation which our prisons and police are finding increasingly difficult to contain. It is politically expedient to sweep the mess under the rug, but the cost in terms of individual lives and innocent bystanders is immense.

Political expediency and majority rule can and do perpetuate terrible injustice at times. Our founders understood this and sought to enshrine the supremacy of individual rights in our Constitution. This did not prevent the perpetuation of slavery, racial segregation, the disenfranchisement of women, or Prohibition, but it was instrumental in the eventual remedy of each over time.

As a society, we need to insist upon our right to sin. Since our founding, we have recognized an adult's right to sin by decriminalizing divorce, contraception, engaging in homosexual acts, and gambling -- to the chagrin of many. This right to sin is not a monolithic trump to reason. The right to sin with tobacco, alcohol, and XXX videos is not without counterbalancing restrictions for the protection of broader society. Drunk driving, secondhand smoke and child exploitation for sexual gratification are legitimate dangers to others and thus legitimate bases for regulation. Despite the distaste many may feel, it is time to confront the implications of recognizing an adult's right to sin with a broad range of illicit intoxicants, not least marijuana.

Our forty year experience with this "War on Drugs" raises legitimate and difficult questions regarding the war itself. As we've learned, sometimes we lose wars because we were mistaken about the enemy. We talk about this "war" in terms of foreign narco-terrorists and drug cartels, but we've actually been fighting a war against the desire of millions of Americans to intoxicate themselves. Who are we, as a nation, to deny individual citizens this right so long as they exercise it without harming others? Who are we, as a people, to consign fellow citizens to a criminal underworld entirely of our own legislation? The impulse to control society for our perception of the "greater good" has within it the seeds of tyranny. Our insistence upon the rights of individuals -- enshrined within our Constitution -- forces us to question our own provinciality regarding what we believe to be the greater good. We err badly pursuing wars founded, not upon our defense of individual liberties, but rather upon our own sense of righteousness. We're going to lose this war, even if we win.