Wednesday, June 11, 2014

On Wolf v. Walker

I have an op-ed in this morning's Milwaukee Journal Sentinel on the merits of resolving the same sex marriage controversy through judicial means. This week - at Right Wisconsin - I have more extended commentary on the likelihood that Judge Crabb's decision will be upheld (no one can really know) and some observations about claiming that there is a fundamental right to have same sex unions included within civil marriage or that the failure to do so denies the equal protection of the laws.

Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).

The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.

In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.

But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.

To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.

So if you have to answer the big questions first. You have to decide what marriage is for.

On the one hand: Is marriage  a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?

On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?

These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.

But I still don't believe that judges are in a position to resolve these questions. We have to do it.

22 comments:

Anonymous said...

Done deal attorney Esenberg, there is no turning back same sex marriage is here to stay.......as Gavin Newsom said "whether you like it or not"

Time for those who have denied gay people fundamental rights to move on and get over it.

John Mitchell said...

"First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work."

Professor, while the motivating factor behind the passage of this amendment was to ultimately protect the rights of former slaves, there were several other components you conveniently forget that ultimately applies to ALL citizens. Per usual, you are not offering the entire picture.


"But I still don't believe that judges are in a position to resolve these questions. We have to do it."

That same logic was employed by those southerners who claimed that federal courts ought not to intervene when it came to Jim Crow laws. Citizens will pass state constitutional amendments defining marriage, which will be contested by other citizens in federal court. Judges will then decide the merits of each side and render a decision. Citizens then have the opportunity to work toward a national amendment to achieve their desired goal.

Rick Esenberg said...

Mr. Mitchell

No, I didn't write a law review article. There are reasons to believe that the 14th amendment has particular purchase when it comes to race. I do not say that it has nothing to do with anything else (indeed, I've brought lawsuits saying that it does), but neither is it a warrant to strike down all laws that can be characterized as discriminating against a class of citizens. Facile comparisons of sexual orientation to race assume the conclusion. They do not prove as much as you think they do.

So, it is not a good response to say that people argued against judicial intervention against Jim Crow laws. The Constitution had resolved the question of racial equality. It does not resolve the question of the meaning of marriage.


Mr. Anon

It may well be a done deal. But how it gets done matters. Slogans about denying fundamental rights are not an argument, they are a conclusion. They don't help resolve anything.

John Mitchell said...

Wrong again, Professor. But then again, it is a day ending in "y."

Anonymous said...

Precisely.....the Supreme Court got it done and there is no turning back or taking away rights granted as in the rather h8teful proposition 8.

John Mitchell said...

Repukes are going to keep pushing the matter, and they'll continue to be taken to the woodshed.

I predict by this time next year, the laws banning people from refusing to serve homosexuals will be nationwide (and Constitutional) and anti-gay statements will be codified as hate speech.

Anonymous said...

The Applings and Esenbergs will be a historical footnote along with Anita Bryant

Anonymous said...

I know this will be tough medicine for many conservatives, but it needs to be said: Republicans need to let it go when it comes to the gay marriage issue. Our current position is a loser politically, an embarrassment socially, and a raving hypocrisy morally.

It is a loser politically. I hate to break it to you folks, but this issue is lost.

It is an embarrassment socially. When the GOP claims that opposition to gay marriage is a way to defend and affirm the importance of marriage in our society, it embarrasses itself. How is anyone expected to believe that Republicans actually oppose gay marriage because we have such a high regard for traditional marriage as a building block of society? Really? Would that be the party of the once divorced Ronald Reagan or the twice divorced Newt Gingrich? Or maybe the party of Mark Sanford "hiking the Appalachian trail" with his Argentinian mistress? Marriage may indeed be the foundation of a civil society, but the GOP is hardly a credible messenger for that message. No matter what anyone thinks of gay marriage, it is hard to imagine that gay unions will do a worse job in terms of fidelity and stability than our heterosexual marriages have done of late. The institution of marriage has been cheapened almost beyond recognition in today’s society. It has been more a disposable ticket to a preferred tax status than a lifelong commitment to love, honor, and cherish. In an era of no fault divorce, where nearly all marriages are treated as marriages of convenience – when they are no longer convenient we dissolve them – arguing that gay marriage will somehow weaken the institution is absurd to the point of farce.

Finally, it is morally hypocritical. Being anti-homosexual in the name of Judeo-Christian morality or "traditional family values" is the ultimate example of obsessing over the speck in your brother’s eye while ignoring the beam in your own eye.

Some people may want to argue over the "sinfulness" of homosexuality based on the Judeo-Christian tradition and scriptures. But it impossible to argue where those same traditions and scriptures stand on the sinfulness of heterosexual sex outside of the bounds of marriage. For every Biblical proof text you want to assert in opposition to homosexuality, I will give you 20 in clear unequivocal opposition to adultery or fornication.

Anonymous said...


Texas Governor Rick Perry, seen as a potential Republican presidential candidate in the 2016 election, compared homosexuality to alcoholism in remarks in San Francisco

Perry made the comparison on Wednesday night during an appearance before the Commonwealth Club of California after being asked whether he believes homosexuality was a disorder, according to local media reports.

"I may have the genetic coding that I'm inclined to be an alcoholic, but I have the desire not to do that," Perry said in remarks broadcast on the local CBS affiliate. "And I look at the homosexual issue in the same way."

A few people in the audience gasped in response, according to the CBS report.

A representative for Perry was not immediately available for comment. Perry has been a staunch defender of a Texas constitutional amendment that bars same-sex marriage, saying states should be allowed to set their own policies for who can get married.

The already conservative Texas Republican Party in the past week adopted a hardline position on gay rights, adopting a policy at its convention that endorses "reparative therapy" for gays who seek to change sexual orientation through counseling.

The American Psychological Association has dismissed the idea that sexual orientation is a mental disorder and said mental health professionals should avoid telling clients that they can change their sexual orientation through therapy or other treatments.

John Mitchell said...

The 1:01 p.m. and 9:30 p.m. "John Mitchells" are not yours truly. Just a deranged anony impersonator.

"I do not say that it has nothing to do with anything else (indeed, I've brought lawsuits saying that it does),"

What??? This statement makes no sense.

In any event, you first stated that the 14th Amendment was "if anything, it was about race". Upon clarification, you now say the 14th Amendment was "a particular purchase about race". This stipulation ought to have been initially made.


"but neither is it a warrant to strike down all laws that can be characterized as discriminating against a class of citizens."

Gobblygook on your part. Regardless, some southerners made the case that the mixing of the races was "socially undesirable" because it would denigrate "civilization". As a result of this conclusion, they passed laws to deny people their liberty to choose whom to marry. In a similar vein, some people today are employing the same logic--enabling men to marry men and women to marry women will ultimately lead to that degeneration.

sean s. said...

Professor;

Way back in 2009, you and I debated this subject at great length on the MU Faculty blog. I see your views have not changed much at all; neither have mine. This is not a criticism; if one thinks they’re right, one should stick to their guns.

But the view of the Courts and society has changed; and it seems more and more that your views are in the minority. It is telling that your best arguments and those of other nay-sayers are foundering.

Your two paragraphs on “what marriage is for” (beginning with “On the one hand...”) cite a number of your concerns; generally these are irrelevant. There is no reason to believe that legal recognition of same sex marriage will interfere with any heterosexual couple’s relationship, or that it would alter whatever norm such a couple submits to, or that any changes to this norm would be harmful, or that same sex marriage would deprive any child of their biological parents.

Same sex marriage have some effect. But “effect” and “damage” or “harm” are not at all the same things. Permitting Jackie Robinson to play MLB had a significant effect, but caused no harm. Your rationale equating “change” to “harm” is not just a reason to prohibit same sex marriage, it is an objection to any and all change. No rational court would give any weight to this rationale alone. This, by the way, is where comparisons to race are appropriate and telling: in the day when racial equality was controversial there were many that thought courts should just let society figure this out; they feared that any change was bad.

It is not too late to “preserve” your view of marriage, but it is too late to impose it on those who don’t share it. Would legalized same sex marriage have an “incremental impact on the public understanding or marriage?” Probably; but again “incremental impact” is not “damage” or “harm”; this is a repetition of the argument against change in general.

Judges may not be the persons to resolve your questions, but your questions are not what these cases are about anyway; these cases are about equal protection under the law. Since none of the questions you raise can reasonably posit any harm caused by legalized same sex marriage—nor even any benefit from prohibiting same sex marriage—the courts are properly striking down legislation intended to impose this purposeless limitation on equality under the law.

sean s.

John Mitchell said...

At the end of the day, there's not much of a difference between niggers and faggots.

Both groups spread AIDS like a motherfucker.

John Mitchell said...

Professor, if you are somehow reading this, please note my IP address compared to the deranged stalker at 6:01 p.m. This person engaged in the same behavior on Dad29's site to the point that he had to moderate his comments.

George Mitchell said...

Which you bragged about ruining over on other blogs.

Get over yourself, "John," and quit drinking and typing.

George Mitchell said...

I apologize again for my actions.

Anonymous said...

So John Mitchell whines about a doppelgänger, then pulls the same crap himself.

Mark another blog he's ruined.

Anonymous said...

Anonymous 3:21 p.m. is the same one who ruined Dad29's site.

John Mitchell said...

Anonymous 10:51 is the one who claimed to be George Mitchell, then John Mitchell. He is a convicted felon and child molestor.

John Mitchell said...

Now the deranged anony at banned from Dad29 is pretending to be another anony and myself, once again showing his true colors.

Anonymous said...

I guess we can say now that John Mitchell/George Mitchell/Anonymous has ruined yet another blog.

sean s. said...

Anonymous @ 12:50;

The thread seems dead anyway, the topic pretty much settled. Bans on SSM don't withstand minimal scrutiny, much less anything more rigorous.

Whoever the troller is, they're mumbling in an empty room.

sean s.

sean s. said...

Another one bites the dust. 10th Circuit re. Utah.

http://www.ca10.uscourts.gov/opinions/13/13-4178.pdf

sean s.