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Wednesday, May 27, 2009

Deborah Hellman on Prop 8 decision, Peter Westen, & Equality

Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below:

"Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right. Moreover, equality cannot require that the state treat each of us the same, as the state clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, “treat like cases alike,” is meaningless, he argued, because the important question will always be: which cases are relevantly like which others? And the California Supreme Court unfortunately agrees.

"Yesterday, that court decided that Proposition 8 – which “added” text to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” – was an amendment to that state’s constitution rather than a revision of it. Because an amendment requires only the process used to pass Prop 8 (a referendum), while a revision would require a constitutional convention, this decision upholds Proposition 8. Prop 8 itself overturned the prior decision of the state’s highest court holding that the California Constitution forbids limiting marriage to opposite-sex couples. The court reached the conclusion that Prop 8 is only an amendment to the constitution by finding that the change it makes is not to constitutional fundamentals. It did this by reading equality as an empty idea.
The court reasoned that gay men and lesbians can afford themselves of the civil union opportunities California provides. In the court’s view, while restricting the designation of “marriage” to gay couples is not irrelevant, it does not constitute an abandonment of the state’s commitment to equality because this is a fairly limited restriction. Prop 8 is a constitutional amendment because it makes a minor change, merely limiting the designation of “marriage” to some people while still affording others the actual rights they deserve – to be able to form families, have meaningful relationships, etc.

"This decision shows Westen’s mistake, as well as what is at stake in how we conceive of the norm of equality. Equality is not an empty idea. It requires that the state treat each of us as equals. Westen is right that equality does not require that the state treat us the same in all circumstances. Nor does the norm of equality tell us what particular rights (other than equality) we each have. If the state wanted to stop granting marriage licenses to anyone, essentially leaving the designation “marriage” to religious or other private parties to confer, and simply grant civil unions to both straight and gay couples, the right to equality would not be offended. In that sense, no one has a right to “marriage.” But what equality does demand is that the state must treat us as people of equal worth. This command forbids the state from drawing distinctions among people in a way that is demeaning. Justice Moreno of the California Supreme Court explains in his opinion, concurring in part and dissenting in part, that “[d]enying same-sex couples the right to call their relationships marriages treats them as ‘second-class citizens.’” It is this that equality forbids.

"One cannot help but think of Justice Harlan’s famous dissent in Plessy, “as all will admit, … the real meaning of...” the law is “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Today we might say, “as all will admit”, the real meaning of Prop 8 is that the relationship between couples of the same sex is not equally valuable as the relationship between opposite sex couples and therefore does not deserve the name of 'marriage.' While this is not exactly the same as branding gays as inferior, Prop 8 surely brands their relationships as inferior, which is awfully close."

Posted by Rick Hills on May 27, 2009 at 02:07 PM in Constitutional thoughts | Permalink


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I don't think there's any doubt that Prop 8 stigmatizes gays. However, I have some doubts about whether sexual orientation is enough of a suspect class for that to matter. Regardless of whether sexual orientation is an immutable characteristic or not, the fact remains that sexual orientation, unlike gender or race, is really nothing more than a proclivity to behave in certain ways. My being 'straight,' for instance, is nothing more or less than a desire to sleep with members of the opposite sex. That being the case, it strikes me as odd to extend suspect class status to a group defined solely by their desire or proclivity to behave in a certain way. Suppose a state banned wearing a certain color tie. Such legislation would be absurd and unconstitutional for a number of reasons, but it would be nearly as absurd to argue that an equal protection claim could be made on the grounds that such a statute discriminated against those who really liked wearing that color tie - even if it could be shown that it was a matter of genetics that that color was their favorite color.

Posted by: Asher | May 27, 2009 8:15:18 PM

As I understand Professor Hellman's argument, which is an extension of the argument from her book, the state may draw distinctions between people so long as those distinctions are not demeaning in nature. It seems to me that the concept of "demeaning," (like "equality") may not be a completely empty concept, but may nonetheless be too elusive to use as the litmus test for whether or not a distinction is an appropriate or lawful one. For example, Professor Hellman argues that the Prop. 8 distinction is demeaning because it treats homosexuals as second class citizens, or treats their relationships as having less moral worth. But in her book, she argues that affirmative action measures are not demeaning. Why not? It seems to me they could easily be considered demeaning both to whites (whose test scores, grades, etc., are treated as less "worthy") and to minorities (who may feel demeaned by the notion that they don't need to score as well as a white person). I think Professor Hellman would argue that the difference is that there is no history of treating whites as second class citizens, so in the affirmative action context drawing a distinction based on race is not a "demeaning" distinction. But isn't that really just using the history of discrimination against certain groups to define what is appropriate line-drawing today? In other words, doesn't that make historical treatment of the group the real litmus test? Does the fact that we, as a society, do not have a history of discriminating against whites mean that affirmative action is always (and always will be?) justifiable? I assume that Frank Ricci, the white firefighter in the New Haven case, felt "demeaned," or treated as of lesser moral worth by the state, when he was not promoted because the test he aced resulted in a disparate impact on certain minorities. This is not to say that affirmative action measures are always wrongful discrimination, or that New Haven's actions in the Ricci case were wrongful, or that Prop. 8 is not wrongful discrimination. Rather, I am simply questioning whether the concept of "demeaning" might be too elusive or ambiguous to serve as a useful guide for determining whether any particular distinction should be considered wrongful or acceptable.

Posted by: Jason Bent | May 27, 2009 5:42:23 PM

Unlike Plessy and Loving, however, gay couples are not arrested and thrown in prison for having a relationship or sitting in the heterosexual part of the bus. What precisely prevents a gay couple from living together, wearing rings, and saying they are married? The dissent is wrong in that the law forbids this - it does nothing of the sort.

It seems too that homosexual couples have rights conferred by the domestic partnership law of the State of California.

Finally, Ms. Hellman seems oddly to have taken one or more of the following positions, with their underlying assumptions, all of which seem problematic to me:

1. Homosexual relationships are equal to heterosexual relationships, and therefore, the law must treat them equally.

2. Regardless of whether homosexual and heterosexual relationships are equal, the law, as it is blind to distinctions among people, must treat them as equal de facto.

3. If the State does not officially recognize my relationship with my significant other in the same manner as others, than either me or that relationship is worth less.

On this last point, I must ask why it is worth less or demeaned due to lack of recognition in the law? It is much different than slavery or miscegenation laws (for, as noted above, two people living together, calling themselves married, will not be punished by the local authorities)?

Posted by: Jonathan | May 27, 2009 3:37:31 PM

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