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Sunday, December 5, 2010

Prop 8 This Week - Finale or Allegro ma no troppo?

All below the cut. Long and academic-ish.

Looking at the amicus curiae of the Robbie P. George brain trust in prep for this week’s oral contest on marriage for gays in California, one observes they continue to hold the view of rival goods, rather than the more intuitive and obvious complementary goods.

They argue that there is no value neutral marriage policy (even if their quoted assertion from Michael Sandel is easily falsifiable, because the government could have other, normative grounds to bar polygyny). Who would disagree, except perhaps those who believe that the only common good that is served by ‘marriage policy’, within reason, is to facilitate private, individual goods?

They suggest there are legitimate moral purposes for a discriminatory marriage policy, but they analogize to goods that are not obviously in conflict, such as the relationship of business partners compared to personal friendships. Elsewhere, in contrast, they suggest that the purpose for a retained prejudice against gay couples is to be found in the perceived conflict of goods, i.e. down the road the perceived social linkages or norms may be lost (a consequence both in dispute and not in evidence at trial and one that could be, nevertheless, easily addressed by propagating the appropriate ethic, rather than denying or hypothesizing that so much is impossible).

They suggest that one can’t reason from a ‘fundamental right’ to marriage to gay marriage, because the concept of fundamental right is contingent on the purposes of marriage. A contingent fundamental right is hardly intuitive, because what we would think of as grounding the word “fundamental” is what we should use to judge whether restricted purposes are legitimate. Thus, we might well consider fundamental expression of innate sexuality and associated partnership, as seen by evidence and testimony in court and so obviously related to “flourishing” and “human good”, as not quite in the same category as their choice example, an artist seeking contingent self-expression through antisemitic art, who nevertheless gets defunded.

Indeed, they fail to meet the burden that the court should choose to impose on them. If they purport that there are legitimate moral purposes for discriminatory policy, it should have been proven at trial that these purposes can win the form of rationality, going beyond mere animus, reference to tradition, or belief in revealed truths. The trial record is pretty bare on this.

What’s more, it is closer to the time when the Supreme Court Justices ought to formally realize that, in finally removing “criminalization” as a penalty, they ought not to simply replace it with other forms of sad and uninspired penalties, that are often as damaging to the human spirit, even if they are not as physically threatening. This is the spirit of Romer, I think. If the court has the prescience to see the obvious complementarity of goods, we do not lose the past, we gain the future.

Their answer to these problems is not to delve into them much, but to provide a formalism: whatever the postulated legitimate and inevitable moral purposes of discriminatory marriage policy are, the court(s) should not assess them, because such purposes are only for the people to decide. (They confuse the legislature with the people, in citing Gregg v Georgia, p. 13, raising the vexing issue of judging the ‘legislative intent’ of a plebiscite and other issues besides.)

But, this is no answer, really.

If the moral purposes of the law are all left to a non-deliberative plebiscite, that makes a mockery of their statement about the majesty of the law, “instituted to preserve justice and secure the conditions under which individuals or communities can thrive or flourish” (p. 4), because a plebiscite could make a horse a Senator and more besides.

Even in that potential chaos, a court would still have to weigh competing and conflicting moral claims of the plebiscite, e.g. we want to live with equal protection and we want to discriminate against a minority (gays). To settle that question, with weighty matters at hand, a court would have to weigh consequential harms, look at the case in hand, examine the aptness of the discrimination in meeting the governmental interest, to see whether it rested on sheer animus or on supportable, evidential linkages. The trial court did that, in spades. The plaintiffs must and should win on appeal.