A Stitch in Haste

This is not the first time something judicially monumental has happened whilst I was on vacation. I hope you can find enough commentary on the decision to tide you over for a few days.

I won’t lie to you: There is no way I am reading 172 pages of California constitutional interpretation here in my undisclosed location. It will have to wait until I get back.

I can, however, offer two hasty stitches:

1. Tim Sandefur asks what’s in a name:

The Court begins by making clear that the question is not whether the state can bar homosexual couples from having the same substantive rights as heterosexual couples, but rather whether the state can establish an identical (or nearly identical) set of substantive rights for each, but only confer the name “marriage” on one and not the other. The entire dispute is about the word “marriage.’
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The only difference is the word the state uses. Do you have a right to a word?

I think on this point, there is room for disagreement, but I would be skeptical. First, if the state were using a word for same-sex marriages that was derogatory or offensive, then there would be a stronger argument that the state was discriminating against them.
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California simply denominates gay marriages “civil unions.” Is that really a violation of the rights of gay couples? If so, is it discrimination to refer to people on AFDC or WIC as “welfare recipients”? Is it discrimination to refer to people in wheelchairs as “handicapped”? I find this an implausible ground for a finding of discrimination.

Sandefur is as fine a libertarian legal mind as you’ll find, and no enemy of gays. (Again, he is critiquing the decision, not the concept of gay marriage generally.) So my observation is probably best filed away as a lawyer’s quibble, but I think his analysis is utterly untenable for a reason that can be summed up in two “just words” — New Jersey.

A New Jersey straight “married” (just a word) couple can have their marriage (just a word) recognized and legally enforced in New York.

A Massachusetts or Canada “married” (just a word) gay couple can, now, have their marriage (just a word) recognized and legally enforced in New York.

A New Jersey gay “civil-unioned” (just a not-quite-word) gay couple cannot have their civil union (just words) recognized and legally recognized in New York. This despite the fact that the New Jersey Supreme Court insisted and demanded that “civil unions” be afforded all (just a word?) the rights and privileges of marriage.

New Jersey tried, and failed, to make marriage “just a word” —

We will not presume that a difference in name alone is of constitutional magnitude.

It was a Sisyphean nightmare then; it is a Sisyphean nightmare now. Marriage, for better or for worse, is not “just a word” in American jurisprudence. That is axiomatic in the exteme.

Note also that Sandefur’s suggested qualifier “derogatory or offensive” has nothing to do with it. Full and equal either obtains or it does not; asking, “Is this derogatory or offensive?” is simply not a robust distinction in this context.

Like I said, this is a just a late-night* nitpick; Sandefur’s post is really quite good. Do read it.

(*”Late-night”? Did I just give an inadvertent hint as to my undisclosed location?)

2. So while the heroes of Lambda Legal (aided as they often are by the ACLU) were busy actually doing something for gay equality, what was the Human Rights Campaign doing?

They were busy conflating gay marriage with socialized medicine:

In our national debate on health care — we need to remember that in America, health care is a right, not a privilege. Too often that’s not true for gay, lesbian, bisexual and transgender Americans. The absence of federal protections, inadequate state laws and inconsistent hospital policies often result in discrimination and inadequate health care for GLBT patients and their families.

The question of fair and equal (not to mention sane and humane) recognition of gay relationships in the context of medical care has nothing, absolutely nothing, to do with the gobbledygook of a “right to health care.” To equate gay marriage with socialized medicine is to make gay marriage as evil as socialized medicine. It also marginalizes, as unimportant collateral damage, all those gays who dare not to be radical liberal malcontents. It’s worse than “win the battle, lose the war” — it’s “win the battle, bomb your allies.”

I’m not being entirely fair, of course: HRC did find the time and money to “sign on” (their term) to somebody else’s (whom they couldn’t bother to identify in their press release) amicus brief. How bold of them. And how much, I wonder, are they asking for in donations for “their” (just a word) “victory” (not just a word)?

If your charitable money is up for grabs, then give it to Lambda, not to HRC. (If you want to be utterly apolitical, then opt for the Point Foundation.)

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The litigtion is In re Marriage Cases, No. S147999 (S. Ct. Cal., May 15, 2008) (PDF – 172 pages).

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