Gay Marriage, Equal Protection

On March 4, the California Supreme Court heard arguments in the _Marriage Cases_, a legal challenge to the state's ban on gay marriage. It is a complicated series of cases that raise fundamental questions about fairness and tolerance, as well as tradition and history. Legally it pits competing claims of equal protection against the state's police power--its right to regulate the health, welfare, and morals of its residents.

But the case is more complicated than even this. In our recent constitutional and legal past, the United States experienced a national backlash against the extension of civil rights to marginal groups. From the 1940s on, all three branches of the federal government have demonstrated a willingness to protect the rights of U.S. citizens against states and individuals who threatened them. Beginning with African-Americans and eventually extending to women, Asians, and other minorities, the language of rights claims became prominent in America.

The 1980s "Reagan Revolution" was the first concerted backlash against this new, rights-oriented culture. Its success was not precisely a rollback of the civil rights movement--after all, part of the civil rights movement's success was in changing the predominant culture to such a profound degree that even right wingers could no longer profess openly racist views and get away with it. Tolerance became normalized.

This did not please some. The interest group known as the "religious right" began expressing dismay that the dominant culture was *too* tolerant. Its tolerance was creating a culture of relativity that equated with permissiveness. The right already had political muscle, which it flexed powerfully in 1992, forcing President Bush I to shuffle to the right and abandon his own centrist and pragmatic policies and, for these sins, lose the election to Bill Clinton. The religious right pressed on, joining the "Republican Insurgency" of Newt Gingrich, and ultimately becoming a decisive factor in garnering electoral votes for George W. Bush in 2000 and 2004.

This was the context within which the subject of gay marriage became headline news. When the Massachusetts Supreme Court said in 2003 that the marriage law of its state could not exclude homosexual unions (because it violated the equal protection of the law to homosexuals), the reaction became nationwide. A number of states, including Georgia, sought to amend their constitutions to define marriage as being between one man and one woman. That these votes were often brought during key national elections (the presidential election year of 2004, for example) should surprise no one. Karl Rove helped organize the backlash to bring evangelicals to the polls at precisely the moment that Bush needed votes to defeat John Kerry. It should also be noted that the first stages of this backlash were in the mid-90s, culminating in the Congress passing the Defense of Marriage Act (DOMA) in 1996 (another election year). Bill Clinton signed it into law, and the Clinton campaign trumpeted this defense of marriage in ads on southern and midwestern radio stations while remaining mute about it in the national race. So much for the progressive Clintons.

Which brings us to California. It is true that state law, not the state Constitution, bans gay marriage. But it also extends all the benefits of marriage that the state can provide to gay couples in the form of "domestic partnerships." The only difference between a domestic partnership and a marriage in California is that the domestic partnership will not be recognized by other states that prohibit gay unions. This has nothing to do with California law, but rather with DOMA (mentioned above). DOMA provided that no state could be compelled to recognize a marriage from another state that was not between a man and a woman. Whether this is a legitimate exercise of the full faith and credit clause has not been scrutinized judicially.

Does the California law violate equal protection of laws? The case recalls the question of segregation that was presented during the famous cases of Plessey v. Ferguson (1898) and Brown v. Board of Education (1954). In Plessey, the high court ruled that separate but equal facilities for blacks and whites were not a violation of the equal protection clause of the Fourteenth Amendment. If blacks chose to view it as a badge of their second class citizenship, opined the Court, that was their choice, not the reality. In Brown, famously, the Court said the reverse: that separation was inherently unequal.

Is it true with marriage? Do homosexual couples in California suffer from not being able to call their union a "marriage," even if state law extends them the same privileges as married couples under a different name? Is it an invocation of the discredited "separate but equal" standard?

I'll avoid making a direct answer. Suffice it to say that the issues are even more complex than I let on. And the fact that California's story is wrapped up in a national narrative makes it all the more interesting. We are witnessing, perhaps, one of the great constitutional struggles of our day that will be as trenchantly written about by later generations as was the 100 year struggle for civil rights.