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March 14, 2005

Equal protection sucks

The San Francisco Superior Court has a website that is truly laughable. It looks like something an 8th grader would whip up in FrontPage.

I mention this only in passing, as I had occasion to visit the site to dig up the writings of the latest judge who thinks it's his job to make law, as expressed in Marriage Cases, and yes, that's the official title of the case. I've come to the conclusion that constitutional provisions guaranteeing "equal protection under the laws" just plain suck. The term is so damn vague that it's an open invitation to any jurist to make it mean whatever he wants it to mean.

I support gay marriage. I also support multiple marriage, consanguineous marriage, limited-term marriage, and any other form of consensual human relationship that can be derived. In point of fact, I wish the state would just get the hell out of the marriage business and let people enter into whatever kinds of contracts they want. If two or more people wish to form a contract combining their assets and granting certain rights of inheritance and other powers of attorney under whatever terms they find mutually acceptable, that's their business, not the government's.

But I recognize that what I want and what the law says are two different things. And I consider the sanctity of law to be more important than merely getting what I want. Some judges, apparently, disagree.

It's important to distinguish between the arguments in favor of gay marriage, and the arguments that the state lacks the authority to prohibit it. It's much easier to argue that gay marriage would be good than it is to argue that the constitution actually mandates it.

In fairness to Judge Kramer, there is a colorable legal argument that California's constitutional provision extending "equal protection under the laws" prohibits the state from restricting marriage to opposite-sex couples. But what I'd like to ask Judge Kramer, and others who agree with this ruling, is this: if the "opposite-sex" part is void, why not the "couples" part? Kramer ruled that a strict scrutiny standard was applicable to the heterosexual marriage law, which means that the state bore the burden of proving that it had a compelling interest which justified the law. Not only that, the state also had to prove that the law was necessary (i.e. it was the only way) to meet that compelling interest. Do laws against polygamy meet this standard? I don't see how the state has any compelling interest in precluding polygamy that it lacks in precluding homosexual marriage.

And then there's consanguineous marriage -- or, for those who don't like ten-dollar words, marriage between closely related persons. Judge Kramer actually takes up this argument in his opinion:

[Opponents of same-sex marriage] suggest that to do otherwise [than defining marriage in terms of whom one may marry] will open a door to such improprieties as brothers marrying their sisters or the marriage of an adult to a child.


Thus, when Perez recognizes that "...the essence of the right to marry is freedom to join in marriage with the person of one's choice...", it is not saying that therefore anyone can marry anyone else (e.g. siblings to each other or adults to children), but rather that the starting point is that one can choose who to marry, and that choice cannot be limited by the state unless there is a legitimate governmental reason for doing so.


Likewise, the state can preclude incenstuous marriages as well as establish a minimum age for effective consent to marriage because such limitations on the fundamental right to marry would further an important social objective by reasonable means and do not discriminate based on arbitrary classifications.

Excuse me? Why is precluding consanguineous marriage an "important social objective" while precluding gay marriage is not? Certainly the citizens of California considered it important enough to bar it by initiative. Who decides what's "important" and what's not? You, Judge Kramer? Why is your judgment of social objectives more reliable than that of the voters? And why is forbidding me to marry one woman while permitting me to marry another merely because the former happens to be my twin sister any less "arbitrary" than forbidding me to marry a man while permitting me to marry a woman?

Again, the equal protection argument that the constitution mandates gay marriage is colorable, simply because the text is so vague. That's not to say that it's correct, merely that it's not inconsistent. But if one accepts the argument, one can only preserve consistency by accepting that the constitution also mandates polygamous and incestuous marriage. One can't say that the gays are entitled to equal protection under the law while the polyamorous and the cousinlovers are not.

March 14, 2005 in Current Affairs | Permalink


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It dawned on me the other day that you have to be a Libertarian to truly be intellectually honest with yourself in a gay marriage debate. Why? Because the Polygamy -> Incest -> Toaster Oven slippery slope is valid, but even so, it's still an appeal (if not an incredibly strong one) to emotion.

Posted by: Kade | Mar 15, 2005 8:37:33 PM

I wouldn't call it an appeal to emotion, I'd call it a reductio ad absurdum. The proposition that the Constitution mandates gay marriage implies that the Constitution mandates polygamy; therefore to be consistent one must believe either that the Constitution mandates polygamy or that the Constitution doesn't mandate gay marriage.

Posted by: Voice of Reason | Mar 16, 2005 3:09:50 PM

One can't say that the gays are entitled to equal protection under the law while the polyamorous and the cousinlovers are not.

This argument is flawed. Being gay is not making a perticular choice. It is not that the law is invalid on equal protection grounds because a gay person cannot marry one perticular man/woman, but because they can marry no one that they are capable of forming a relationship with. Someone in love with their cousin or sister does not suffer from this handicap - while they are prohibited by law from marrying a perticular person, they are not prohibited from marrying anyone in the group of people they are capable of forming a relationship with. A similar situation exists for polygamy. Were it only possible for a polygamist to really form polygamous relationships, the argument would hold, but that's not the case. As a society, we probably should allow these sorts of marriages - exept perhaps brother/sister marriages, as a law allowing them to be married but not have kids would be constitutionally and ethically questionable - but it's not the same sort of issue gay marriage is.

In addiution, you continually suggest the decision claimed the constitution mandated gay marriages. This isn't the case; it is merely impermissible to only allow hetero marriages and not homo marriages. The decision merely stated such a distinction was not constitutionally acceptable. It struck down a distinction in the law, rather than creating its own law. If the state wants to get out of the marriage buisness altogether, there's nothing in the decision to stop that.

Posted by: Evilweasel | Mar 18, 2005 3:56:46 PM

Sorry, I must have missed the line in the 14th Amendment or in Kramer's decision when it said marriages could be barred as long as there was a possibility of forming a relationship with somebody else. And your reasoning is false, anyway. Surely it is possible for gay people to marry those of the opposite gender. Throughout history, many have done so, and have even fathered or borne children. Some of them might even have been happy. Frankly, I think it's terribly condescending to gay people to describe them as being "incapable of forming a relationship" with people of the opposite gender.

I cheerfully concede the incredibly nitpicky point that Kramer's decision is that the constitution mandates gay marriage as long as the state recognizes any marriages.

Posted by: Voice of Reason | Mar 20, 2005 5:28:44 PM

Pendatic point, but the case turned on California's constitution, not the 14th.

The word 'impossible' may be a bit strong, but the point still holds. Being gay is innate and unchangable in a way polygamy/incest is not. Gays form a distinct class of people in a way sister-lovers and polygamists do not. To deny gays the right to marry impacts a specific class of people who cannot really leave that class.

Posted by: evilweasel | Mar 20, 2005 10:21:29 PM

I know that Kramer's decision referenced the equal protection clause in California's constitution, not the equal protection clause in the 14th Amendment. The same logic applies.

Now, let's play Spot The Difference:

Person A is a gay male. He could marry a female, but he wouldn't love her, and he'd be desperately unhappy. Person B loves his sister. He could marry someone other than his sister, but he wouldn't love her, and he'd be desperately unhappy. Can you Spot The Difference?

So gays form a distinct class in a way that polygamists and sister-lovers do not? What way is that, exactly? And where in the California Constitution does it say anything about "distinct classes?"

Posted by: Voice of Reason | Mar 20, 2005 10:57:33 PM

The difference is obvious. Conflating the entire group of people gay men can fall in love with with one person someone is currently in love with is ludicrous. It's like asking : Person A is a black man, prohibited by law from riding the bus because he's black. Person B is a person who is not being allowed on the bus because he's naked. Both are being denied entrance because of their appearance. Can you Spot The Difference?

A specific case of not being allowed to marry one person is not the same as not being allowed to marry any person you will fall in love with. For a gay man, the probability he will fall in love with someone he is legally allowed to marry is vanishingly small. There is no such group of "sister-lovers" - that you are in love with someone who it is illegal to marry is different from everyone you will potentially fall in love with is illegal to marry.

Lastly, distinct classes are a good way of making equal protection - a concept that's virtually a requirement of justice - workable. Applied so that every law must affect everyone equally is unworkable. Distinct classes are a good way to apply a principle enshrined in law to protect one distinct class.

Posted by: evilweasel | Mar 21, 2005 10:43:33 AM


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