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One thought on Hernandez

As I said yesterday, neither the ruling of the New York Court of Appeals nor the dissent in Hernandez provided much surprise to watchers of the debate. However, Chief Judge Kaye's dissent did serve to strengthen one of my convictions as to the most profitable course that gay-marriage advocates could take: ditch "equality."

Equality, after all, is not much more than a gossamer word. Demands for "equality" (or "equal protection") mean nothing in and of themselves. Rather, they gain meaning only after one has defined the scope of the equality to be protected. Hence, Judge Kaye can that New York treats a woman who wishes to marry a woman differently from one who wishes to marry a man, and thus that woman is treated unequally. Judge Smith can counter that the same woman is treated no differently from any other woman or any other man: they are both limited to marrying members of the opposite sex.

I would imagine that to many readers, either Judge Kaye's reasoning or Judge Smith's seems self-evidently obvious. Some day, perhaps, after sufficient search through precedent or a laborious effort towards enlightenment, some Solon might conclude that in the balance some platonic ideal of "equality" sides with one or the other Judge. But such arguments leave few tools with which the advocate on Side B can attempt to convince his opposite on Side A. The degree to which the opinions and dissents in gay marriage cases--either Hernandez or Goodridge--tend to talk past each other when it comes to what is "equal" rather illustrate the difficulty.

It seems to me that a better avenue of argument is to abandon the fetish for equality. Certainly, it's good to treat people equally, equality is a value, and all that. But the concentration on equality leads gay marriage proponents to two particular strategic potholes. First, equality has a moral dimension: it is tough to make a demand for equality that does not at least implicitly accuse ones opponents of bigotry. Now, perhaps one believes that no one can oppose gay marriage without being a bigot. Yet popular referenda are continually passing opposed to same-sex marriages, which suggests that accusing the opposition of bigotry is a quick way to turn off voters rather than woo them.

The second problem with focusing on equality--or rather its close sibling, equal protection--comes from the test most likely to be invoked. Equality is either a "gender" issue (getting "intermediate scrutiny") or subject to rational basis review. This in turn requires proponents to use arguments, of which Chief Judge Kaye's is only the latest, that there is no rational way one can support heterosexual-only marriage. The logical corollary of this, of course, is that all those who do oppose gay marriage are irrational. See above for why this might not be too wise as a political matter.

Further, I simply cannot fathom the idea that opposition to gay marriage is utterly irrational. The institution is, after all, relatively novel, especially as opposed to polygamy and its deeply-rooted history. As Judge Smith said yesterday, "A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted." And if one does not reach that conclusion, it staggers the imagination that gay marriage would not be more common.

These two "potholes," as I've called them, tend to blind gay marriage proponents to what I'd consider a more profitable avenue of attack: that even if a choice to ban gay marriage is rational, it's nonetheless simply a bad idea. After all, rational people are not perfect people, and they are perfectly capable of holding views that are mistaken.

That's one reason that even during my bar review course, I've been continuing my research into how to use the Defense of Marriage Act to create a tax shelter for gay couples. [1]. While I was once a proponent of DOMA as a bulwark against judicial activism, I'm becoming more and more convinced that as a jurisprudential matter it's a mistake.[2] The federal code, after all, recognizes marriage as much to prevent cooperative behavior against the government as it does to "reward" committed couples who raise families. DOMA may in some measure check activist judges, but it does so at the cost of making our general law inconsistent, and that may very well be too high a cost.

Notably, arguments that heterosexual-only marriage is a bad idea are superficially awfully similar to arguments about equality. Take the litany of unfairness catalogued by Chief Judge Kaye, for instance:

Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers' compensation, the right to sue for wrongful death and spousal privilege.

Each of those "equality" principles are a double-edged sword. Consider, for instance, parental rights. Certainly in New York there must be some "deadbeat" gay father who has skipped out on his partner and their (in fact if not law) adopted child? At least for the father, the lack of recognition is a boon, yet not one that we'd like to encourage. Or take health insurance. One would think that so long as a state does not force private employers to recognize same sex couples, there will be a certain number of them in which one member has private health benefits but the other must be supported by the state. Is that a policy to be encouraged by fiscal conservatives?

And even arguments that don't rely on the double-edged nature of legal responsibilities can be cast without a "fairness" consideration. Yes, one can say that it's unfair that a homosexual who dies intestate (or with a somehow invalid will) may not find his estate passing to his long-committed life partner. But even if it were somehow equal, it would still conflict with another deeply-held principle, that a decedent's effects should pass to those they would naturally choose.[3]

The distinction remains subtle but important. It is nearly impossible to talk of "rights" without saying to one's opponents, "You must recognize this: to do so is at the very least irrational, and probably immoral." Whereas to talk of outcomes softens the tone: "You should recognize this, because failing to do so has painful and even perverse effects." As arguments go, the latter is far more likely to win votes.

[1]: A more pressing reason, of course, is that my free Lexis access runs out at the end of the summer.

[2]: In saying that DOMA is a mistake as a jurisprudential matter, I mean that the only way I can think of to reconcile the obvious purposes of much of the tax code with DOMA requires one to believe that either the tax code or DOMA don't mean what they clearly do. Certain tools beloved of the more modern constitutional scholars might be adopted to square this circle--for instance, consider the Code to be an "evolving" text--but I consider that jurisprudentially undesirable.

[3]: I'm sure I could somehow work tenancy in the entirety into this. But it's currently a big headache for me on the bar exam: I keep getting it wrong.


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You might be interested to know that non-official same-sex parents don't necessarily get to avoid child support obligations. There's a well known California (I know, bear with me) case where the courts were perfectly happy for a child to have two mothers, as long as the state didn't have to support the child. There's also a "de facto parent" doctrine floating around, which gets pulled in sometimes to assign rights/obligations to same-sex parents. Too bad none of this is going to be on the bar! Although in Massachusetts, I suppose it could show up...

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