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January 22, 2004

Making Use of the Pain

The Marriage Debate blog noted the latest development in a story that reached only the periphery of my current-events awareness when it first broke because I wasn't paying as much attention then:

In the first case in the nation that recognized a couple who entered into a Vermont civil union as spouses outside that state, Lambda Legal today asked an appeals court to uphold an earlier ruling that a gay man in New York is a legal spouse and able to sue St. Vincent's Hospital for medical negligence leading to his longtime partner's death.

I've given this story a bit of extra consideration not only because it is rooted in a pain with which anybody who cares about anybody can easily empathize, but also because multiple angles of the gay marriage debate and larger judicial problems come into play. The strands, suffice to say, of this ball in which emotion, morality, civil rights, religion, the role of the judiciary, and the sexual demands of the post-Sixties culture all tangle are difficult to unravel.

For an example of threads tying themselves together in unexpected ways, consider the difficulty that this case presents to somebody who opposes gay marriage, yet is by nature compassionate. Beyond forcing the Vermont civil unions in the first place, the American judiciary's loose — cut, paste, and blur — standard for precedent exerts its weight exactly where we might seek to rest a balanced, respectful conclusion. The court forces us to argue the cold, bad-guy side of a heartrending story because exceptions cannot be made without a high risk of their becoming the rule. By the same token, the case illustrates why a constitutional amendment is so necessary.

If precedent were more context-sensitive, then it would be possible to argue that, within this narrow set of circumstances, civil unions ought to act as marriages. (I'll address this suggestion in an addendum.) In the initial ruling (PDF), Nassau County Supreme Court Justice John P. Dunne explicitly left open the applicability of his reasoning to other areas in which marital policy intersects with the law, and considering the extent to which Dunne drew on such cases in other areas (e.g., rent-controlled housing) as well as the extent to which he makes use of selective precedent, there can be little doubt that he has flung open the door.

In one emotionally charged case — with an ideal plaintiff and particularly unforeseeable tragedy catalyzing the lawsuit — lie myriad angles through which gay marriage can become law by way of the judiciary. That this is so is a prima facie consequence of the magnitude of what the judge's logic has accomplished: not only is Vermont's civil union law imported to New York, but it is equated with marriage — all in one swoop.

The most direct way in which this case will become legal inclusion of homosexuals in marriage is that the court's reasoning will simply be copied as precedent for a less emotional issue. The court called a homosexual partner a "spouse"; therefore, the law says that such partners count as spouses, whatever the circumstances.

A more subtle path to the same end, including the direct precedent or not, emerges from Dunne's having rested his decision on New York's standards for handling the common-law marriages of other states. Considering that the couple was not from Vermont, merely going there for the purpose of marriage, the judiciary has invented a way around any and all New York marriage laws — at least for homosexuals.

At the most restrictive, gay couples would have to "honeymoon" in a state with civil union laws, enacting their union while there. At its most permissive, the state of New York will essentially have created "common-law marriage" for gays in every state — even states, such as Vermont and New York, that do not recognize heterosexual common-law marriages.

For one thing, Dunne has ignored the fact that common-law marriage isn't the sort of thing that can be established over a weekend. Moreover, revealing the tangled net that the American judiciary is casting to capture this cause, the Massachusetts Supreme Court was forced to admit that the opposite-sex definition of marriage derived from common-law and to assert the right to change it. Now, on the strength of New York's previous handling of common-law marriages from states that recognized them, Dunne writes:

Raum [a previous case that established an inconvenient, and thus "notwithstanding," precedent] held that the wrongful death statute excludes unmarried heterosexual partners to the same extent that it excludes unmarried homosexual partners, and therefore it does not discriminate on the basis of sexual orientation. Plaintiff cannot be categorized as an "unmarried" partner, rather he is like a common law partner, recognized in New York as a spouse because lawfully recognized in a sister state. To withhold recognition from one joined under the Vermont statute on the grounds that it is not a marriage, when it requires all the same formatlities as New York, and at the same time to extend recognition to a common law "marriage" of a sister state, does not withhold benefits equally from homosexuals and heterosexuals.

In this way, it comes about that homosexual couples are required to be treated as if they are married because all of the precedent that restricts heterosexual relationships like theirs does not apply to them. They are "married" because Vermont has set up a civil arrangement that is not marriage. They are entitled, for reason of equal protection, to be treated like married couples because unmarried heterosexuals in both their home state and the state of their civil union are not treated like married couples.

The shadow through which the judge slips is the difference, in the eyes of the law, between marriage and civil unions. If Vermont recognized common-law marriage to the exclusion of homosexuals, then it would be plain that civil unions and common-law marriages are not equivalent in either Vermont or, therefore, New York. Dunne takes the fact that the relevant categories are marriage, civil union, and nothing as reason to equate civil unions to a form of marriage that Vermont does not offer. (Legally speaking, it is important to note, marriage and common-law marriage are not really different forms of marriage, but merely different ways of entering into marriage.)

Another implication of this backward approach to requiring gay marriage to be portable is, obviously, that the Defense of Marriage Act was a waste of time and paper. Dunne dismissively concludes that "New York's public policy does not preclude recognition of a same-sex union entered into in a sister state." Therefore, because the state's judiciary, in the person of John Dunne, is accepting the gay marriage, the "government" is not being "required to give effect to" the marriage law of another state. Rather, the tacit argument goes, New York is opting to do so. Under its own laws it... requires said recognition.

Beyond the slippery methodology, with state courts' making a habit of citing each other's rulings, Dunne's logic will act as precedent, and this sentence will surely come into play:

It is unclear by what authority the Congress may suspend or limit the full faith and credit clause of the Constitution, and the constitutionality of DOMA has been put in doubt.

For its part, the New York case undermines DOMA both on the basis of treating civil unions as marriage without calling them such, and by making ambiguous to the point of inapplicability the idea of "required to give effect." Meanwhile, the California legislature has illustrated that New York's lack of a "mini DOMA" was not the decisive factor.

By a one-vote-majority party-line vote, that legislature has passed a domestic partnership law (in effect in 2005) that will equate those arrangements with marriage, despite the majority demand of the people that marriage be defined as between a man and a woman. So, even in states that have explicitly declared marriage to be limited to heterosexuals, civil-unions-gay-marriages-whatevers can be construed to grant all of the rights of marriage and, therefore, to be marriage.

Thus, in every state, in every area in which marriage touches on public life, most of which are personal and carry a great deal of emotion, activists will leverage the courts to push through their agenda. Where possible, they will push legislatures to create "marriage-like" unions that can then be moved across borders and transformed into relationships between "spouses."

The only means of stopping this avalanche mid-roll in such a way as to ensure that the decision to change the definition of marriage falls to the majority of our society is through constitutional amendment confirming the opposite-sex requirement and barring other civil arrangements from being treated as marriage-that-isn't-marriage. Without such a move, taken in full, there isn't even the plausible possibility of each state "experimenting" with such compromise measures as civil unions.

ADDENDUM:
This case also shows why civil unions cannot, under equal protection, be limited to homosexuals or even, properly, members of the same sex or exclude close family members. If the logic — and emotional hook — is the degree of interdependence and commitment, there is really no reason to limit the benefits to gay couples.

In an emotional case akin to the one facing the courts of New York, would we discriminate against, say, heterosexual friends of opposite sex who were emotionally and financially reliant on each other merely because they were "just friends"? (That is, on the basis of their sexual orientation.) Or what about family members who are in the same situation?

Such argument is probably moot, anyway — what with judges taking the approach that their burden is to fit their preference into the law rather than judging what the law actually states.

Posted by Justin Katz at January 22, 2004 3:10 PM
Marriage & Family
Comments

Did you think that I (of all your readers) wouldn't comment?

I'm unclear of your position here. Obviously you don't want to come off as the cold, uncompassionate bad-guy but you are clearly worried about the precedent this may have.

First you are correct that DOMA isn't worth the paper it's printed on. It isn’t constitutional with present law. It was passed and signed to appease the activists (like yourself) and admittedly with support of the majority of the public.

But I don't understand what your fear is here - you are against gay rights based on your religious principles. But those same principles seem to suggest to you that this man should be allowed to sue the hospital and therefore be treated as a spouse - so the question is really - what does a 'civil union' in Vermont mean in another state. Doesn't DOMA override the Full Faith & Credit clause? I don't know. Also, is your argument that common-law marriages are good or bad? You are condemning same-sex couples who live elsewhere going to Vermont for their civil-union but why is that different for residents of another state who go to Las Vegas, Nevada to get married.

The logic in your addendum actually ends up supporting the argument made by Andrew Sullivan - which is that civil unions will only cause more 'legal' trouble and are not fair, under equal protection. The same logic used to say that civil unions cannot, under equal protection, be limited to homosexuals (and I agree) can also be applied to yes, marriage.

As you say, would we discriminate against any two people who were emotionally and financially reliant on each other regardless of their gender, ages or familial relationship? The only emotionally correct answer is no.

So again, we go back to the beginning - what is marriage? How does it differ from other 'reliant' relationships?

For me, I think the best solution is to have state-defined civil-unions that are 'portable' based on the Full Faith and Credit clause. I do believe that the government should provide some 'recognition' of same-sex relationships without going so far as making them equal to opposite-sex relationships. Yes, this will infuriate some social conservatives by giving gays some legitimate legal status and also infuriate some gay-rights activists (including Andrew) by having the government give secondary status to same-sex relationships.

Finally, I'm reading 'Mere Christianity' by C.S. Lewis and it's fascinating. When I'm all done I may email some comments to your for your, um…... commentary.

Posted by: Mark Miller at January 23, 2004 5:10 PM

Mark,

Sorry for the delayed response. I actually addressed your comment last night, but being very tired and not yet used to my new system, I apparently never actually hit "post." As it happens, I'm dizzyingly tired, now, so I'll attempt to remember to hit the right button when I'm done (in addition to my attempts to be coherent). In the interest of expedience, I'll respond to your comments, presented in italics:

those same principles seem to suggest to you that this man should be allowed to sue the hospital and therefore be treated as a spouse

— This is true in the sense that I don't see why the right to sue, in this way, ought to be limited to spouses. Perhaps it could be a "perk" to encourage marriage, but it's a cold one, if taken that way. In some article, somewhere, that I read for this entry, I believe I read that New York doesn't allow even spousal "pain and suffering" (as distinct from a punitive reward to "recover" [ick!] for the "pain and suffering" of the victim). Therefore, I don't see why compensation for lost support ought to be limited to spouses.

Doesn't DOMA override the Full Faith & Credit clause?

— As I understand our system, the Full Faith & Credit clause is constitutional. Therefore, it can only be overridden by an amendment. Congress couldn't pass a law overriding the Establishment Clause, either. The only hope for DOMA, in this respect, is the unlikely scenario in which the Supreme Court declares that marriage is not covered by the FF&C clause.

is your argument that common-law marriages are good or bad?

— I'm not really making an argument either way. Generally, I think the availability of marital "credentials" makes common-law marriage unnecessary, at best. At worst, the practice encourages people to resist marriage as part of a calculation that they'll subsequently be able to claim it anyway. Most states, as it happens, do not recognize common-law marriages.

You are condemning same-sex couples who live elsewhere going to Vermont for their civil-union but why is that different for residents of another state who go to Las Vegas, Nevada to get married.

— Well, in this context, I'm not condemning same-sex couples for this activity, and I'd note that I think Nevada's marriage laws are pretty ridiculous. But the difference is that marriage is marriage, and here, the judge has argued that something that is not marriage is marriage.

The same logic used to say that civil unions cannot, under equal protection, be limited to homosexuals (and I agree) can also be applied to yes, marriage.

— Not really. The argument on behalf of traditional marriage is that the stable male-female relationship is inherently different in ways that make it an ideal coupling in the eyes of society. Primarily, this has to do with the complementary nature of the sexes — not the least in their ability to combine in the creation of new life. Were we to lift homosexual relationships to that level, we would inherently shift the central benefit that is sought. Generally, this amounts to mutual support, stable lifestyles, and so forth. None of these are unique to homosexuals; therefore, there is no (as the now-famous phrase puts it) rational basis for barring heterosexuals from an arrangement that seeks to encourage those results.

For me, I think the best solution is to have state-defined civil-unions that are 'portable' based on the Full Faith and Credit clause.

— I can go that far. However, I would insist on the reminder that such civil-unions oughtn't be limited to homosexuals; for one thing, that would be baselessly discriminatory, and for another thing, it makes gay sex the behavior that the law seeks to encourage rather than the fidelity and mutual dependency. That said, each state would be able to determine its own specifics (including the decision not to enact such unions), and some would surely seek to limit it to same-sex couples. As for portability, the way that would work (I think) and should work (I believe) would be that a civil union from one state would be valid in another state that recognizes civil unions, but granting only the rights, privileges, and obligations that the new state grants.

I'm reading 'Mere Christianity' by C.S. Lewis and it's fascinating.

— I look forward to hearing your thoughts (and offering mine... but of course).

Posted by: Justin Katz at January 26, 2004 12:05 AM

Justin,

I know what you mean .... I'm very busy here and slept much of the weekend due to .... being over tired, I would guess.

But let's move on ....

The only hope for DOMA, in this respect, is the unlikely scenario in which the Supreme Court declares that marriage is not covered by the FF&C clause.

- I agree. But we do have different 'hopes', obviously.


But the difference is that marriage is marriage, and here, the judge has argued that something that is not marriage is marriage.

- Not really. In Vermont, the man would have a right to use based on his 'civil union'. The question is whether those 'rights' are portable. (and a very difficult question, indeed it is).

The argument on behalf of traditional marriage is that the stable male-female relationship is inherently different in ways that make it an ideal coupling in the eyes of society. Primarily, this has to do with the complementary nature of the sexes - not the least in their ability to combine in the creation of new life.

- This is where we really differ and, as I see it, the crux of this debate. That your argument against gay-rights is based the stability of the male-female relationship and also that homosexual relationships are inherently different and a less than ideal coupling. First, I do not agree with your assertions. But more importantly, I think that the differences are not relevant for public policy purposes.

However, I would insist on the reminder that such civil-unions oughtn't be limited to homosexuals; for one thing, that would be baselessly discriminatory, and for another thing, it makes gay sex the behavior that the law seeks to encourage rather than the fidelity and mutual dependency.

- Again, this is where we split. And only where you say that same-sex civil unions would 'encourage' gay sex. First, I don't agree and second, that it is not relevant in the public policy arena.

I'm reading 'Mere Christianity' by C.S. Lewis and it's fascinating.
I look forward to hearing your thoughts (and offering mine... but of course).

- When I'm done, I'll send you my thoughts.

Mark

Posted by: Mark Miller at January 26, 2004 1:30 PM

Mark,

I'm behind on everything, and you've moved on to another comment box, so this will be quick:

This is where we really differ and, as I see it, the crux of this debate. That your argument against gay-rights is based the stability of the male-female relationship and also that homosexual relationships are inherently different and a less than ideal coupling.
— I wasn't, in this instance, touting the heightened stability of male-female couplings (although I believe them to be more stable, for the most part). Furthermore, unless you're willing to declare that men and women are exactly the same in all respects except for genitalia, you have to concede that the two types of relationships (three, actually) are indeed "inherently different." As for the ideal, even Andrew Sullivan has ceded that point.

And only where you say that same-sex civil unions would 'encourage' gay sex.
— Actually, what I was saying was that restricting civil unions to homosexuals would make gay sex the defining factor of the arrangement, because it is the only aspect of a homosexual relationship that heterosexuals cannot mirror.

Posted by: Justin Katz at January 28, 2004 10:50 AM