By Helen Berry
I happened to be in New York at the end of June this year when the State legislature passed the Marriage Equality Act to legalise same-sex marriage. By coincidence, it was Gay Pride weekend, and a million people waved rainbow flags in the streets of Manhattan, celebrating this landmark ruling in the campaign for gay rights, and I was one of them.
What struck me as a visitor from the UK – where civil partnerships for same-sex couples have been legal since 2004 – was the way in which gay marriage is still such a divisive issue in American politics.
By Elvin Lim
In 2004, the Republican’s hot button political issue du jour was same-sex marriage. 11 states approved ballot measures that defined marriage as a union between a man and a woman. Last week, a federal judge struck down California’s Proposition 8 (passed in 2008) because it “fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license.”
However, Republicans politicians are not taking the bait to revisit this hot button political issue, despite Rush Limbaugh’s encouragement. One explanation is that Republican voters are already angry and motivated this year, and they are concerned about the economy and jobs. There is no need for Republicans to exploit a get-the-vote-out issue this year.
But, that is exactly what some Republicans have done, just not on the marriage issue. Instead, prominent Republicans like Senator Lindsay Graham and presidential hopeful Tim Pawlenty are directing their attention this year on repealing the 14th Amendment, and in particular the provision guaranteeing birthright citizenship.
So is it or is it not “the economy, stupid,” for Election 2010? I think it’s about something even bigger than the economy. It’s about the power of the federal government, which increased dramatically with the passage of the 14th Amendment.
Consider that the first sentence of Section 1 of the 14th Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”), which established the priority of national citizenship over state citizenship. While there were references to citizenship in the Constitution of 1789, the Framers did not define the content of citizenship in part because there was little need, at the time, to consider the idea of national citizenship as opposed to state citizenship. The nation as we know it today was not fully developed until the Civil War.
Read in totality, the first Section of the 14th Amendment isn’t so much a grant of birthright citizenship – the content of the first sentence – but a constraint on states’ rights, the point of the second: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” We know this to be historically accurate. Since the 1930s, the “equal protection” and “due process” clauses have been used against state actors to extend the scope and depth of federal governmental powers.
Fast forward to the 2010, and it is no coincidence that almost everything up for political debate today and in November has something to do with the power of federal government versus states’ rights, whether it be Arizona taking it upon itself to write its own immigration policy and the Obama administration insisting that immigration policy is a federal prerogative, or Missouri primary voters rejecting the federal (“Obamacare”) mandate that all individual citizens must buy health insurance, or Californians deciding in Proposition 8 that only marriages between a man and a woman are valid in their state. If the unifying thread in these agitations is the perception of a bloated, out-of-control federal government, it is also worth noting that the major resource for the aggrandizement of the government has been the 14th Amendment.
The Republican Party of 2010 is not the Republican Party of 1868, the year the 14th Amendment was ratified. The GOP, back then, believed in federal preemption of states’ rights. Democrats were the ones who were wary of federal power. The Rep
William N. Eskridge, Jr. and Darren R. Spedale are the authors of Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence. Eskridge is the John A. Garver Professor of Jurisprudence at the Yale Law School. Spedale spent two years on a Fulbright Fellowship in Denmark researching Scandinavian same-sex partnerships. He received his J.D. and M.B.A. degrees from Stanford University, and continues his work on same-sex marriage through his pro bono activities. Here, they comment on the recent decision by the California Supreme Court to uphold Prop 8.
The California Supreme Court’s decision upholding Proposition 8 will be analyzed as a referendum on gay marriage. That would be a mistake. There are much higher stakes in the case. At bottom, it posed the question, What is a Constitution for? The Justices did not address that issue explicitly, but their action spoke volumes.
Prop 8’s ratification by the voters in the 2008 election overrode the Court’s earlier decision invalidating the state’s marriage exclusion of lesbian and gay couples. Lesbian and gay couples challenged Prop 8 as an “unconstitutional constitutional amendment.” Their argument, rejected by the Court, was that Prop 8’s fundamental change in minority rights should have gone through the more deliberative process for constitutional “revisions.” California Attorney General Jerry Brown made a similar argument, that a Constitution cannot be amended to retract “inalienable” rights.
At war in the Prop 8 case were two competing visions of what a Constitution is for. Representing the supporters of Prop 8, former Judge Kenneth Starr argued that a Constitution (or at least the California one) is an expression of the values held by the citizenry. To use Aristotle’s language, the Constitution is the “soul of the city.” Modernizing Aristotle, California provides its citizens with formal opportunities to express their constitutional commitments, through popular initiatives. Once the voters had spoken, the Court itself would have been engaging in unconstitutional usurpation if it had insisted on same-sex marriage.
Attorney General Brown and Shannon Minter (representing the challengers) argued that a Constitution demands more from the democratic process. Inspired by John Locke, their constitutional assumption is that the constitution is a social contract that guarantees basic rights to everyone. The Declaration of Independence called them “inalienable rights,” which means that even the Constitution cannot take them away without risking dissolution of the social contract. Because the Court itself had in 2008 held that marriage was a fundamental, inalienable right for lesbian and gay couples, Brown and Minter maintained that Proposition 8 was a constitutional betrayal.
A superficial reading of the Court’s opinion suggests that Starr prevailed. The Court upheld Prop 8, consistent with Starr’s democratic updating of Aristotle. But the Court rejected Starr’s argument that Prop 8 nullified the estimated 18,000 same-sex marriages performed between June 15 and November 8, 2008. The effect of the Court’s interpretation is to recognize those marriages, consistent with Brown and Minter’s stance in the litigation.
What is one to make of this Solomonic resolution? It may have been politically motivated, splitting the baby so that neither side would feel disrespected, on an issue that evenly divides the citizenry. It may been motivated purely by rule of law considerations. The Court would have had to stretch its precedents to strike down Prop 8, but the well-established canon against retroactive application of new amendments provided a legally hard-to-question rationale for narrowly interpreting Prop 8.
In our view, the Court was operating, at least in part, under a third understanding of what a Constitution is for. Constitutions establish processes for deliberation about important policies and values we should commit ourselves to. A Deliberative Constitution keeps the channels of political discussion open, insists that representative bodies be accountable to the people, and from time to time nudges the political process.
This is probably what the Court was up to. On the one hand, the Justices were persuaded that citizens were not settled in the gay marriage debate. Even as it allowed Prop 8, the Court reminded voters that a future initiative could overturn its rule. The Court was channeling both supporters and opponents of gay marriage back to the persuasive process; judges would not decide the issue for the people.
On the other hand, the Justices gave a nudge to that deliberation by validating the existing gay marriages. This provided an opportunity for gay marriage supporters to falsify stereotypes of gay people as anti-family. (The biggest anti-gay trope, and one exploited during the Prop 8 campaign, is that rights for gay people will corrupt children.) These lesbian and gay married families might also put to the test traditionalist arguments that gay marriage is bad for the community.
Gay marriage will still come to California, through a future initiative rather than a judicial decision. As we argued in our recent book, the new wave of marriage recognition has been coming in state legislatures (Vermont and Maine, with others to come).
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