When the Law Speaks in Tongues: CA's Gay Marriage Opinion

There is no way I’m going to be able to get through the 172 pages of the California marriage cases opinion anytime soon [pdf]. But in my punchdrunk way I can cherry pick a few items.

First I have to get out of the way the personal confession that gay marriage as a constitutional question leaves me feeling very punchdrunk indeed, and punchdrunk on thin ice. I’ve been trying to determine why exactly, and hopefully this post will get it across. There are two key portions of the opinion — the closing fanfare of the majority opinion and then of the closing dissent — that might throw it into focus. Last things first:

Democracy is never more tested than when its citizens honestly disagree, based on deeply held beliefs. In such circumstances, the legislative process should be given leeway to work out the differences. It is inappropriate for the judiciary to interrupt that process and impose the views of its individual members, while the opinions of the people are still evolving. Restraint is the hallmark of constitutional review. “[I]f the judiciary is to fulfill its role in our tripartite system of government as the final arbiter of constitutional issues, it cannot hope to escape the tension between legislative policy determinations and the challenges raised by those who would seek exceptions thereto. We can, however, while entertaining such challenges, seek to hold the tension in check by always presuming the constitutional validity of legislative acts and resolving doubts in favor of the statute.” (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 939, italics added.)

The majority abandons this judicious approach. Instead of presuming the validity of the statutes defining marriage and establishing domestic partnership, in effect the majority presumes them to be constitutionally invalid by characterizing domestic partnership as a “mark of second-class citizenship.” (Maj. opn., ante, at p. 118.) This judicial presumption contravenes the express intent of the Legislature to equalize the rights of spouses and domestic partners.

Now, consider what I take to be the crux of the majority’s decision:

As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.

The problem with the dissent, I think, is that it must ignore that the definition of marriage itself has been put in controversy. This is a problem because the call of the case is for the justices themselves to rule on the legal definition of marriage in California. And that is a problem because jurisprudence looks to the tradition and history of the meaning of the terms addressed in the statute — worth doing not only in a pinch, but because the laws of a state and the will of the citizens are not always the same thing. It is good to maintain the presumption that they are, but the majority is correct to recognize that there are times when it is not, and courts must be forced to confront that possibility at least in times when cases before them hinge on the express question of whether that’s so. The danger is that if the court takes the law to be the final word on the voice of the people — that is, if the court takes the opinions and sentiments of the citizens to be fully expressed by the letter of the law — then the court will be strongly inclined to erroneously take the wording of controverted laws as totally representative of the tradition and history from which they appeared. There is, however, especially where opinion is evolving, a gap that must be recognized.

The trouble is that the majority opinion recognizes that gap only as a consequence of first resolving that it does not exist. This is absurd, so let me explain. When the majority says that gay unions not recognized as gay marriages (with gay marriages, in a quantum leap, recognized yet further as gay families) “likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity,” what the majority is really saying is that the majority itself certainly views the letter of the law as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity. That strikes me as a point of law which the court is free to argue over, and in fact should argue over in grappling with the case. But the majority does something else entirely when it then applies its own present judgment concerning the meaning of the letter of the law to the future public meaning of the spirit of the law. It asserts, in essence, that the meaning of the letter of the law has a determinate effect on the evolving opinions of the people and the historical traditions from which they derive. Actually, what the majority really asserts is that the meaning of the letter of the law “likely” has such an effect, which is a cop out designed to escape the burden of responsibility for the rest of the sentence. How likely, one wants to ask? What is the degree of likelihood? Among what group of citizens? Having first determined that the meaning of the letter of the law controls popular opinion, the majority proceeds to rule that the meaning of the letter of the law is actually other than what it meant when it captured prior public opinion, i.e., popular opinion does not control the meaning of the letter of the law.

This is a rather nerve-wracking one-way street, especially because the majority permits only the court to drive both ways. But this is not why I feel punchdrunk on ice while trying to analyze gay marriage and constitutional law. Bad jurisprudence is easy to criticize; bad rulings may be comfortably despised. That’s an easy way out on this one. Here, by contrast, the questionable jurisprudence is at least in part the product of a very real breakdown of the rule of law. Specifically, the meanings of some of the most important terms we use in politics have collapsed. Under such circumstances, there is no higher arbiter of the meanings of these terms than the highest court with proper jurisdiction — here, the California court. Look carefully at this phrasing:

…because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples…

The key terms here are ‘marriage’, ‘widespread’, ‘understanding’, ‘family’, ‘relationship’, ‘unreservedly’, ‘sanctioned’, ‘community’, ‘limit’, ‘access’, and ‘designation’. The term ‘marriage’ is the one under controversy, and so has been stripped of any prefab definition. The term ‘widespread’ is impossibly vague. The term ‘understanding’ fails to capture the depth and character of public judgments about marriage. These judgments are sometimes mere ‘opinions’, sometimes are fiercely held ‘convictions’; sometimes they are well thought through, sometimes they are not. To declare that some unquantifiable but sufficiently large number of citizens share some unqualifiable but sufficiently coherent mental characterization of marriage as an unreservedly community-sanctioned family relationship is to abstract bizarrely away from the way plain people think about marriage. God knows what a ‘community’ means in this context. A state? A county? A town? ‘Community’ is a wholly meaningless term here. ‘Unreservedly’ is similarly nebulous. And if we all know what ‘family’ means, why must the term be thrown into ambiguity by the qualifier ‘relationship’? How is a family different from a family relationship? These sorts of verbal curlicues are not mere flourishes. They are acts of cluttering up and evasion which are decisive to the reasoning, such as it is, of the majority opinion.

My deep concern is that this kind of nonsense is now the reigning vocabulary in jurisprudence and politics. The legacy of political correctness is a will to illiteracy, a conscious destruction of particular meaning as an affront to abstract principles, an attack on the facticity of words in favor of their plasticity and contingency. We now want, and have created, a vocabulary of words designed to have no reliable meaning. We need these words in order to evade the costs of commitment to the behaviors they describe. And we want to enshrine legal rights to both make and break those commitments, as free of cost as possible. On the public side, this means institutionalizing an official right to equal recognition; on the private side, this means abstracting morals and ethics in order to minimize, if not eliminate, the suffering of guilt.

In such a situation, it’s devilishly hard to mount any kind of functioning counterattack to the linguistic moves made by the majority. The dissent can only fall back on the truisms of prudence. What the dissent should have done is confront the linguistic problem head-on. But the resulting exchange would hardly have been appropriate for a court, because in order for a court to function, the meaning of the terms at the center of its cases must not only be generally agreed upon by the public but by the court itself. And that’s simply absent now.

Still, that’s no excuse for these abstract and nonsensical qualifiers, which do the most to undermine the legitimacy of the marriage cases ruling. Yet it is unclear to me how the majority could have even couched the ruling in more particular language. Should it have been the language of love? Of contract? Of sexual behavior? Of sexual feeling? Of a yearning to raise children? It is impossible for the court to explain in concrete, particular terms why it is that gay marriages and gay families merit official celebration and respect of a kind identical to that afforded straight marriages and straight families because we, and our culture at large, have no idea of how to explain it to ourselves. Our opinions are somewhere out ahead of us, and we are groping toward them; mores are shifting out from under us and no one seems particularly responsible for it. We are like Lincoln, who said of the civil war that ” I claim not to have controlled events, but confess plainly that events have controlled me.” Just as the coherence and comprehensibility of the Union fell apart in the years leading up to 1860, the coherence and comprehensibility of our basic units of social order are falling apart now. All we can do to restore them, legally speaking, is rely on the opinions-cum-laws of court and legislature. But the whole point is that restoring them legally is inadequate to the task before us, which is a new shared conviction in the metaphysical truths lived through our social institutions. The old one is plainly unraveling. No courthouse or statehouse will knit a new one.