California’s same-sex marriage decision

I have now read Judge Walker’s decision in California (documents.nytimes.com/us-district-court-decision-perry-v-schwarzenegger?ref=us), and I think I conceded far too much in a recent online colloquy with someone in the blogginheadstv fora who was opposing same-sex marriage, primarily on the grounds that heterosexual marriage has been the preferred means for achieving the state’s interest in perpetuating or increasing its population.

According to evidence offered in the case, 18% of same-sex couples in California are raising children, a much higher percentage than I had imagined.  The male couple plaintiffs say that they want to be married prior to starting a family.

According to evidence offered by plaintiffs, there is a body of social scientific work that demonstrates that children raised by same-sex couples are as well-adjusted as those raised by heterosexual couples.  The State of CA offered no evidence on this question, and the proponents of Proposition 8 offered only evidence which compared childred raised by two parents of the opposite sex with children raised by single parents or divorced parents, but in no case with children raised by two parents of the same sex.

On the question of whether California’s domestic partnership classification satisfies the desires of same-sex couples to marry, the judge is unequivocal in saying that it does not.  The domestic partnership classification is simply an invidious form of discrimination.

On the question of whether the discrimination felt by gays and lesbians is overstated, not just in the past, but recently (as the entire Proposition 8 campaign apparently demonstrated – I was not in California to witness it), the judge was equally unequivocal in rejecting claims that the extent and degree of such discrimination are overstated, at least in the US.

In his legal conclusions, Walker states that, “Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating.”

No evidence was offered to the effect that same-sex marriage reduces the rate of marriage or the fertility rate among heterosexual couples.  I am myself somewhat skeptical about this lack of evidence, because we know that people have children within heterosexual couples and subsequently become gay or lesbian.  Presumably, some subset of gays and lesbians will eschew the earlier stage of heterosexual relationships entirely, and the bearing of children within them, if same-sex marriage is available to them.  On the other hand, their hypothetical heterosexual partners might find other partners with whom to procreate, and some lesbian couples will bear biological children, so the effect of same-sex marriage on the fertility rate could be minimal.  Looking at the matter of a nation’s fertility rate in an a priori way, an argument can be made that any effect of the introduction of same-sex marriage on a nation’s fertility would be nil or very slight.  In principle, the fertility rate could even increase, for the reasons noted.  The real danger here, the imagined one, is that heterosexuals will be converted to the “gay lifestyle”, that people who would otherwise be expected to marry heterosexually and have children will not, because of the introduction of same-sex marriage.  Another possible danger is that the divorce rate among same-sex couples would exceed that of heterosexual couples and thus further undermine the claim of marriage to contribute to the stability of society and of the way in which the state’s interest in perpetuating its population expresses itself.  But the opposite result is also equally conceivable, that the divorce rate among married same-sex couples will be lower than that among heterosexual couples.  In fact, I would expect this to be the case, at least for some initial period.

The tenor of the decision lends credence to my hypothesis that more children would be adopted, in the aggregate, if same-sex marriage were available.   Plaintiffs, including the City and County of San Francisco, also offered a lot of economic evidence that tends to demonstrate advantages to the state of allowing same-sex marriage.  Reduction of crime is not offered as such a reason, however.

I find it virtually inconceivable that Scalia, Thomas, Alito, or Roberts will vote in favor of same-sex marriage.   Kennedy may be more in play than I have estimated.  It will be interesting to see whether the conservatives emphasize the fertility criterion, and, if they do, how they do so.

A recent CNN poll cited by Frank Rich in his NYT column of August 15, 2010, found that 52% of Americans favor a constitutional right to same-sex marriage.

www.nytimes.com/2010/08/15/opinion/15rich.html?ref=frankrich

Judge Walker is very clear, however, that the question before us is not one that can be subjected to plebiscite, but is one of fundamental constitutional rights that can have nothing to do with elections or polls or the absolute number of citizens whose fundamental rights are being denied.  So two things are true for my interlocutor, that the majority opposes same-sex marriage and that there is no widespread discrimination against gays and lesbians.  But the first true thing may not be true and would not be relevant, even if it were true, and the second supposedly true thing is false.

Having read the decision, I am more confident than I had been that none of the four liberal Supreme Court justices will vote against gay marriage.  Therefore, it really is up to Kennedy, in my view.   I don’t know how the conservative justices will frame their opposition, but I am sure that they will find a way.

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