Perry v. Schwarzenegger -- week one -- the "beyond marriage" perspective

The last time we saw a full-blown trial on the constitutionality of a ban on same-sex marriage it was 1996 in Hawaii. The Hawaii Supreme Court had ruled that the state would need to show a "compelling state interest" in excluding same-sex couples from marriage and that the exclusion was necessary to achieve that interest. At the trial on remand, the state claimed that children do best with their married biological mother and father. After hearing the evidence, including the state's expert witnesses -- all of whom agreed that same-sex couples could be good parents -- the trial court ruled that the state had failed to show that banning same-sex marriage furthered the state's interests in providing for the welfare of children. The opinion is a great read. (The people of Hawaii later passed a constitutional amendment giving the state legislature the right to ban same-sex marriage, which it promptly did. That made the litigation moot.)

Since then, the state courts ruling on the constitutionality of the same-sex marriage ban have reviewed evidence in writing -- affidavits or deposition transcripts from plaintiff couples and from experts.

So the trial that began this week in a San Francisco federal courtroom is unusual, and not only because conservative lawyer Ted Olson is one of the attorneys for the plaintiff couples. The judge is hearing actual testimony, including cross-examination, of individuals and expert witnesses. After the US Supreme Court blocked broadcast of the proceedings (a terrible and unprincipled ruling), even into courtrooms in other jurisdictions, the best way to follow the trial is through one of the numerous blog post summarizing each day's proceedings. My favorites are the one by National Center for Lesbian Rights legal director Shannon Minter and Prop8trialtracker.com. From the mainstream press, I like the one by San Jose Mercury News reporter Howard Mintz.

Early in the trial the judge raised the question I have discussed in an earlier post: could the state eliminate the word "marriage" and call the legal status for all couples something different? (My favorite choice: civil partnership). There's no equal protection violation if the name of the status is the same for both gay and straight couples, so the answer to the question turns on whether there is a constitutional right to the word marriage, something I dispute.

Anyway, I was surprised to see the issue come up immediately in this trial. Judge Walker interrupted Olson's opening statement to ask (among other things) if California could get out of the marriage business altogether and just provide domestic partnership for all couples. He pressed the point through additional questions, even though Olson said the state would never "get out of the marriage business."

Subsequently, according to Prop8trialtracker.com, (scroll down to 3:20 pm update), the judge asked one of the plaintiffs, Sandy Stier,

"If the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?

Sandy: I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I'd not have to worry about access to it because no one else would either."

Note that this is not the common answer from proponents of marriage equality. Yet it is precisely the glorification of marriage that I find so disturbing about same-sex marriage advocacy. On the same day of testimony, Sandy's partner, Kris Perry, (scroll to 2:46 pm)testified that:

"I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not."

And in what I find the most disturbing portrayal of marriage, plaintiff Jeff Zarrillo said (scroll to 11;34 am):

"We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. It would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family."

Of course this is completely in keeping with the argument that children do best with married parents, but that's an argument with its origin in opposition to same-sex marriage (Just look at the Hawaii litigation, for example.) Back when marriage equality was not a prominent item on the gay rights agenda, LGBT rights advocates opposed that reasoning, arguing that children do just as well with a gay or lesbian parent or with a same-sex couple. Now in furtherance of marriage equality, advocates assert that children with same-sex parents will be better off if those parents are married. Let me tear my hair out now. The tangible benefits of having two parents are not supposed to turn on whether those parents are married. I've written about this at length.

Many folks may think that the goal of marriage equality is important enough to win with any argument, and if glorifying marriage and/or the superiority of married parents does the trick then that's fine. I disagree. Equality is an important legal doctrine, and gay couples deserve it. So as long as marriage exists we should have access to it. But an argument that marriage is superior is fundamentally an argument that hurts the vast number of LGBT people (and striaght ones!) whose families are organized in other ways. It is also a license to discriminate against the unmarried once same-sex couples do win the right to marry. I cannot get behind that.