Common Sense in NY

No matter how much you love your car, you can't get a license to marry her

The Court of Appeals of New York has provided a small victory for common sense. In a modest ruling, the court found that "the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature." This case reveals the important distinction between "what I want" and "what my community owes me." Our constitutional system of government is long overdue for a similar distinction, between "my desires" and "my constitutional rights." There are differences.

The usual media headlines have trumpeted how this case works for or against various interested parties. There have been the predictable sound-bytes from the predictable collection of advocacy groups. But why should informed citizens allow our own thoughts to be molded by such interpretations? The entire decision of the court, including all concurring and dissenting opinons, is available on the web, New York Case No. 86 . If you care about the subject at all, read the decision for yourself.

In a very sensible concurring opinion, Judge Graffeo dismisses Equal Protection arguments. Among other reasons, "individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex."

Some might respond "isn't that like Henry Ford saying you can have any color you want, as long as your preference is black?" In a way, it is. But the point is, the legislature has not set out to discriminate against homosexuals, it has merely defined the nature of an institution that the state will recognize and regulate. Some people would prefer to enter into some other relations, for reasons of their own. This does not mean that the state has discriminated against them. These individuals would like to call what they share "marriage." This desire does not entitle them to a license from the state.

The plurality opinion (that one half of the justices could agree on) is a little disappointing. It relies heavily on procreation to provide a "rational basis" for the state to define marriage as the union of one man and one woman. By the nature of constitutional law, there must be some "rational basis" for a any law to discriminate between different classifications of people. For example, Equal Protection of the Laws does not require that three year olds have the same voting rights as 45 year olds. There is a "rational basis" to require that a citizen be 18 years old before they can vote.

The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.

True enough as far as it goes. However, many marriages do not result in children. Many men and women marry after their most likely child-bearing years are long past. This isn't exactly a resounding end to the debate. A second "rational basis" accepted by the court also relies on the aspect of marriage that provides a framework for child-rearing:

The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.

The court did not have to list every possible rational basis, in order to uphold the law. If there is any rational basis for the distinction made in a law, the law can be upheld. But these two are subject to challenge. Chief Judge Judith Kaye pointed out in her dissent

In holding that prison inmates have a fundamental right to marry – even though they cannot procreate – the Supreme Court has made it clear that procreation is not the sine qua non of marriage. "Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life . . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship."

Marriage is indeed about much more than producing children. People of many faiths who recognize marriage as the union of one man and one woman have also recognized that marriage is a very complex relationship, which cannot be reduced solely to a framework for procreation. James Watkins is very eloquent on this point.

In future cases, that observation will have to be addressed. No court seems to have considered a rather obvious and comprehensive fact: the distinction between men and women pre-dates every constitution in the United States of America, and indeed, every form of human goverment. Every person who has ever lived, married or unmarried, has been either a man, or a woman. There are unmistakable physical differences and identifying characteristics. When a baby is newborn, there is no doubt as to its sex.

On the other hand, there is no clear way of identifying who is "a homosexual." Every "homosexual" who has ever lived has also been either a man, or a woman, before they are anything else. In fact, homosexuality has no meaning in the absence of the identities "man" and "woman." Being "gay" is a matter of intangible feelings and preferences, which may or may not change in the course of a lifetime, for various reasons, also poorly understood. In fact, why should the state make a distinction between "heterosexuals" and "homosexuals" by offering marriage licenses to "homosexuals" – (whatever that may be)?

Further, the distinction between male and female is inextricably bound up, in its origins, with a specific process of mating. The most obvious physical differences have no other purpose. This process is more or less consistent for all life more complex than a sponge. The question is not, has the state discriminated against homosexuals? The question is, must the state even recognize the condition known as homosexuality in writing its marriage laws? NO. The state need not recognize the existence of homosexuality at all. Homosexuality is, in an objective mathematical and biological sense, a mere deviation from the norm for human life, one of considerably less interest to the state. In an understated way, the court's opinions acknowledged this:

The binary nature of marriage – its inclusion of one woman and one man – reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaintiffs suggest that the connection between procreation and marriage has become anachronistic because of scientific advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.

To put it more crudely, for a woman to have a child by turkey baster requires a male donor. A lesbian partner cannot provide the necessary package of chromosomes to form a fertile zygote. A humane observer cannot refrain from some empathy with Chief Judge Kaye's dissent. Essentially, she is simply presenting legal argument, a badly contrived one, for giving some very concerned human beings what they seek, in order to lead more fulfilling lives. As she wrote:

Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a State legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children–from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

Compassion calls for a ruling in their favor. Equal protection of the laws, however, does not. Judge Kaye insists that plaintiffs have been "deprived of a fundamental right," which is simply not true. They do not wish to exercise the right of "marriage" as that is licensed by the state. They want to expand the definition of marriage to include their own preferences. The legislature could do that. The courts have no constitutional basis to mandate it.

In fact, Judge Kaye tripped over her own argument, when she cited Lawrence v Texas 539 US 558 (2003). As she says, the Supreme Court in Lawrence rejected its own prior ruling in Bowers v Hardwick 478 US 186 (1986). The earlier decision erred by examining whether the constitution confers a "fundamental right upon homosexuals to engage in sodomy." Of course it doesn't. In Lawrence, the court ruled that the proper question is whether the constitution confers "the right to engage in private consensual sexual conduct." At least seven Supreme Court justices affirmed in deciding Lawrence that this question has no implication for gay marriage. The right to be left alone in one's private life does not equal the right to official recognition from the state for one's private choices. To ask whether the constitution confers a fundamental right upon homosexuals to receive a marriage license is as erroneous as the question posed in Bowers.

Kaye's best citation that the definition of marriage cannot be the union of one man and one woman is from a case against the Attorney General of Canada, under a totally different framework of laws. She also cites the Massachusetts Supreme Court decision mandating marriage licenses for same-sex couples in that state. Thereby, Judge Kaye works a tautology to disprove a tautology: to show that marriage is not the union of a man and a woman "because it just is", she cites the only decision by any state Supreme Court which says that marriage is not the union of one man and one woman (because it just isn't, in Massachusetts).

The plurality decision could have been more comprehensive and more coherent, but the court was properly restrained as to its role:

The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection Clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.

This decision offers hope for voters in states where constitutional amendments to define marriage are on the ballot. In states such as Wisconsin, we can well afford to vote no. There is every reason to expect that the Supreme Court of Wisconsin would show as much common sense as the Court of Appeals of New York. We don't need a constitutional amendment to affirm that the sky is blue, that the sun rises in the east, or that marriage is the union of one man and one woman.

Loving v. Virginia

"The spouse of one's choice"

What a name for a Supreme Court case. And it was all about marriage too. Advocates of "gay marriage" presented many losing arguments to New York's highest court this year. Several of them were rooted in the Supreme Court's 1967 decision of Loving v. Virgina, 388 U.S. 1 (1967). The state of Virginia may have coined the phrase "Virginia is for Lovers" in an attempt to live down the infamy of that case.

It began when a sheriff kicked in the door of Mr. and Mrs. Loving's home, found them in bed with a framed marriage license on the wall, and arrested them for being of two different skin colors. A concurring opinion from the New York Court of Appeals got one thing wrong: it said the case involved a "white" woman married to a "black" man. In fact, Mr. Loving was classified by the laws of Virginia as "white" and Mrs. Loving was classified as "colored." Either way, they were both subject to arrest for being married to each other.

The U.S. Supreme Court ruled Virginia's law against inter-racial marriage null and void because it violated a fundamental "right to marry the spouse of one's choice." At the time, everyone understood that was the right of any man to marry any woman he chose, if she agreed, and the right of any woman to marry any man she chose, if he agreed. That language is now being used to suggest that the right to "marry the spouse of one's choice" includes the right to marry a "spouse" of one's own gender. Dubious. As the New York court found:

While many U.S. Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage right as involving a union of one woman and one man (see e.g.Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma, 316 US 535 [1942]).

The NAACP Legal Defense and Educational Fund filed an amicus curiae brief to the New York Court of Appeals, accepting that "[a]lthough the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual's right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court's decision in Loving."

That was a shallow analysis. No doubt the NAACP has caught the one big happy family feeling, that every form of liberation from every restriction is one big cause. In truth, every form of discrimination is different, and must be analyzed on its own merits.

In the case of racial discrimination, there are no merits. The distinction is an empty one, which exists only in the human imagination. It has been specifically and explicitly rejected by multiple constitutional amendments. After 100 years or so, courts even began to enforce those amendments with some consistency. Congress even got around to passing laws to put some teeth into the enforcement. Racial discrimination is subject to what courts call "strict scrutiny." That, as the Supreme Court wrote in Loving, means that if racially discriminatory laws "are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate." Justice Stewart went further, stating his entire analysis of Loving in one sentence. "It is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

In the case of discrimination by sex, most of us prefer separate bathrooms, and in certain respects we don't even want them to be equal. It is arguable that women have less inclination toward some occupations than men, and more inclination toward others. This has been argued from both a feminist and anti-feminist perspective. All these arguments are far from proven. In any case, it is irrelevant to whether each individual, without regard to sex, should have equal access to prove themselves in any form of education or profession. Still, there are some women who prefer going to all-women schools, and some men who prefer to get their education without the presence of women. Separate sometimes is equal, or simply recognizes genuine differences.

Laws against inter-racial marriage are not legally equivalent to laws which define marriage as the union of a man and a woman. Mr. Loving was a man, whatever his skin color, and Mrs. Loving was a woman, whatever her skin color. The law struck down in Loving was rejected by the Supreme Court due to "the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." The court was very explicit that other forms of discrimination do not automatically get the same strict scrutiny.

Now here is where it gets sticky. The State of Virginia argued in 1967 that its law did not discriminate against any race, because both those designated by the state as "white" and those designated by the state as "colored" were equally prohibited from marrying anyone designated by the state as of a different race. Both individuals who entered into an interracial marriage were punished by the same prison sentence. The Supreme Court rejected that argument. Therefore, a certain logic suggests that if state's restrictions on marriage equally prohibit a woman from marrying another woman, or a man from marrying another man, then the Equal Protection Clause can still be violated by a law limiting marriage to heterosexuals.

In fact, no state marriage law discriminates against homosexuals. No state law even considers the existence of homosexuals as a class or an individual characteristic. The language of Virginia's invalid law defined in detail what is a "white" person, what is a "colored" person, what is an "Indian" – and made various exceptions for percentages of "white" and "Indian" blood. (Why? The state wanted to "honor" the descendants of John Rolfe and Pocahontas as "white.") The law in Virginia imposed criminal penalties for being married to a person of a different race. There is no counterpart in any marriage law defining what is a "heterosexual" and what is a "homosexual." There are no criminal penalties for being a homosexual married to a heterosexual, or being married to a person of the same sex. The only classes recognized by state marriage laws are "men" and "women." That is without question a rational distinction when it comes to marriage.

No state has banned homosexuals from the benefits of marriage, for such purposes as preventing "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," which were Virginia's stated defenses of its marriage law. It would be foolish to bar homosexuals from marriage for the purpose of preventing the birth of more homosexuals. Homosexual unions do not produce children of any preference. Same-sex couples who wish to adopt children have made a consistent point that the orientation of the parent does not influence the orientation of the child.

All that current marriage laws in most states do is to accept and adopt the definition of what marriage is, a definition which has been in effect for many centuries in Europe and North America, and in some parts of the world for thousands of years. Definition of terms is generally required in any law before anything else can be said. What same-sex couples object to is not that they have been discriminated against, but that marriage has been defined as something they don't want, and does not include something they do want. That is not unequal protection of the laws. If the right to marry "the spouse of one's choice" is understood to mean whatever one chooses, why stop at a person of any gender? Why not one's dog, or a sheep, or one's car? A lot of men have love affairs with their cars, why not issue marriage licenses? That is if they are not already married to a woman, or a man. Marriage to both a man and a car would be bigamy, wouldn't it?

Once the state chooses to license something called "marriage," and defines what the licensed activity is, the state may not discriminate among people who wish to enter into the covenant defined by law as a "marriage." If marriage IS the union of one man and one woman, then the state may not discriminate as to which man can marry which woman. Not based on race, not based on sexual orientation, not based on hair color, not based on nationality. The state has no constitutional obligation to license as a "marriage" anything that any given individual wants to call a "marriage." You can call it a marriage if you want to. You just can't get a license for it from the state.

Virtuous Battlefields

Who shall we send to Darfur?
To the inner city? To anywhere?

Mallard Fillmore has been flapping his duck bill about the "United Nations Sex for Food Program." This is a sarcastic reference to a real problem. Repeated reports suggest that soldiers detailed to United Nations peacekeeping operations either indulge in rape themselves, or condition receipt of food aid to starving refugees on young women providing sexual favors. Ditto for African Union forces detailed to Darfur.

Mallard Fillmore has some funny one liners, and plenty of boring monologues, but never really digs into, what shall we do about this? There is a growing list of things that most humane people agree or demand that "we" should do, or our nation should do, or our government should do, to alleviate obvious suffering in the world. Nobody who comes up with these admirable ideas seems to examine this vital question: Where will the people come from to carry out these noble purposes?

For example, the United Nations has no soldiers of its own. It has to borrow troops from member nations. It is doubtful that the United Nations, even if it had its own forces, could recruit and retain a force of gentle giants, capable of overcoming hardened military outfits with ease, while subsisting on a vegetarian diet, daily prayers, total abstinence from sex, and a rigorously virtuous attitude toward suffering civilians. Where are whole battalions of such people to be found in the world?

I'm not sure we would choose to send Taliban soldiers, or Islamic militants from Somalia – but these are military forces known for stamping out rampant rape and looting, maintaining strict discipline among their own soldiers. If we find the right people, will they volunteer for service in the Sahara Desert? So military operations in Darfur, or Congo, or anywhere, have to rely on the real soldiers and real armies that are available to be deployed.

In most armies in the world, soldiers tend to be young, single, male, and more or less profane in both language and off-duty habits. This statement cannot characterize every soldier, or any given individual soldier. Many soldiers throughout history have displayed a genuine concern for children, and respect for civilians. But when a large number of soldiers are sent into action, every commander and politican who sends them can, or should, count on a good deal of promiscuity to occur in some manner. During World War II, military police had to be detailed to maintain order in the long lines of soldiers waiting for service from available prostitutes. On the other hand, rape of civilians was one of the more common reasons for execution of American soldiers in Europe.

Soldiers, by the nature of their training, are violent. They are trained to kill, maim, destroy -- sometimes with the most virtuous and patriotic of motives, but that is what war is about. Many will come home to lead productive, virtuous lives, loved and honored by their families, friends, neighbors and coworkers. Others will come home to a lifetime of flashbacks and mental demons. The janjaweed militia is not being suppressed by an army recruited from veterans of the annual sales of UNICEF greeting cards. There is a disconnect between the people who formulate the idea, and the people called upon to implement it on the ground.

This same disconnect exists in civilian life and government. It can be found in child protective services (and many other areas of social welfare) and in endless disputes about police brutality. It is a natural human reflex to say that a child should be removed from a dangerous and destructive family environment. We seldom stop to ask: are child welfare bureaucracies able to provide a consistently better life for the children they take charge of? Often, the only places they have available to put children are much worse. Social workers do not take their entire caseload home with them, giving each their own room in the social worker's own spacious house. And, how many card carrying members of the ACLU have applied for careers as police officers? Most of us stand on the sidelines, leaving the hard work to others. Which others? Whoever is motivated to seek the job.

Why would anyone choose to go into police work? Like most occupations, there are no doubt a wide range of motives. Some are dedicated to an ideal of public service. Some want to keep their own neighborhood safe, and by extension all the neighborhoods of their city. Some find detective work intellectually interesting. Some decide its as good a job as they are likely to get, and the pension will be helpful. Some like to wear a uniform, carry a gun, and tell other people what to do. In some times and places, the opportunity for graft has been a significant attraction: Chicago in the 1950s for example.

When we, the people, through "our" government, give anyone legal sanction to carry a gun and "enforce the law," we should impose strict controls on their use of that authority. It is delegated authority. It is not theirs to use however they wish, and to employ whatever prejudices they may carry. They are physical representatives of the majesty of The Law. But, they are flesh and blood representatives. They are putting their own lives on the line to keep the rest of us safe. We are not each taking our own turn to protect our own communities. We are paying them to do it for us. A professional, trained, police force is necessary in a complex modern urban society. But when we complain about how our hired guns do their job, we have to ask: who else is available to do the job? Would I step forward to do the job better? Why not?

Similar criticisms could be raised concerning a host of programs, motivated by the highest ideals, and implemented with large amounts of government money. Paratransit for example. When advocates for the disabled secured passage of the Americans with Disabilities Act, a door to door transit service for those who cannot use the local mass transit system was included. Very nice. Nobody thought about where the hundreds, thousands, tens of thousands, of drivers were going to come from. Mostly, of course, they are people who need the job and can't find a better one. (Better, defined as, offering more money, better benefits, and less demanding or more stimulating work.)

It's actually not a bad job. It is not paid very well, but it pays well over the legal minimum wage. Drivers get to know their passengers, and vice versa, and develop a good deal of empathy, in the highest sense of the word. There are also those who do as little as possible, refrain from doing parts of the job that seem personally inconvenient at the moment, endangering themselves and/or their passengers. There is high turnover, both from employees voluntarily leaving and being fired. One thing for sure: massive numbers of dedicated advocates for the cause of Americans with Disabilities did not rush to apply for paratransit driving jobs! They all had more comfortable situations to remain in. The prevailing sentiment seems to have been "offer money, someone will do the job." When that is the attitude, you get who you get.

Schools are another good example. We can talk forever about "the schools should do this" or "the schools should do that." We can even talk about how much money we are going to give to "the schools." Schools don't do anything for students. Teachers do. If people with the qualities to be good teachers don't enter the profession of teaching, "the schools" aren't going to do jack. It is also true that if highly qualified teachers don't have a reasonably secure environment to teach in, and equipment to give their students hands-on experience, not much will be accomplished. But it starts with the teacher(s).

There are times and places in the world where people step out to do a job in massive numbers because they fervently believe in what they are doing, or because their backs are against the wall and they have no choice but to fight for survival. The Israeli armed forces in 1948 and 1967 provide examples of both motivations. To some extent, American service men and women in World War II do also. It did require a draft to secure the numbers of troops needed. But millions literally stepped out of civilian life to serve their country, and their world, providing a whole different experience than the "professional soldier" can ever find. The experience shaped an entire generation's subsequent civilian life as well.

From that perspective, perhaps what the UN should be doing is arming and training those in the refugee camps to go out and kill the janjaweed, and to prevail against them by force of arms. After all, who else in the world is truly motivated to take any real risks for that purpose? But, then we would be taking sides in a civil war. Experience teaches that there is no other way to intervene in a civil war. The standard wisdom on intevening in a civil war is (1) Don't. (2) If you do, pick a side. (3) Make sure your side wins.

Anyone motivated to reach out to the brutalized refugees of Darfur should first ask, "Am I ready to go?" Most comfortable western voices are ready to send "them" or "someone" or "our troops" or to provide logistical back-up to some unspecified regional forces. If you are not prepared to respond "Here am I," then the job will be done, if it is done at all, by whoever can be scraped up to do it. We should also recognize that the only way to end a civil war is to overwhelm and smother every combatant force in the area. It cannot be done be putting a "thin blue line" of UN helmets on the ground between opposing armed forces.

The Taliban's rise to power in Afghanistan began when they started hanging a few rapists. The recent success of Islamic militias in Mogadishu, Somalia, drew a good deal of support from Somali women, who were tired of being harrassed by what American government officials like to call "secular" forces. (They are "secular" in the same sense that American street gangs are "secular." Profane might have been a more accurate term. They are the same forces that brought down the marine helicopter immortalized in the movie "Black Hawk Down.") So it is true that if "we" leave a vacuum, others may step in to do the job – their own way. It is also true that if "we" step in, we may only make matters worse.

Maybe we should send Mallard Fillmore to do the job right. In the spirit of the "Kentucky colonels" and the old-style milita, Mallard could recruit, train, equip, pay for, and offer for service, a regiment to suppress the bad guys wherever in the world the UN has failed to do so. If they succeed, Mallard and the entire regiment will be heroes. If they fail, Doonesbury will never let them hear the end of it.