Friday, May 16, 2008

California Supreme Court decision

The California Supreme Court recently decided that a statutory scheme allowing marriage to only heterosexual or opposite gender couples was unconstitutional under the California state constitution. The majority's opinion in the case is marvelous in many ways, first and foremost because of the result, but also because of its reasoning. It focuses on the what the right to marry means to both the individuals involved and society as a whole. Refreshingly, and unlike most religious discussions, sex is not mentioned. Rather, partnerships and the families they engender (couples and extended family, not just children), are viewed as whole relationships, not just the sum of single, discrete economic, social, emotional, psychological, or physical components.

I'm going to include a long excerpt from the majority opinion below, but I would recommend reading more, as I hope to do in the near future. For now, however, let me remind everyone, as others have elsewhere, that the legal and political analysis required to understand what may yet happen in light of the November ballot initiative is rather complicated. (See Greenwald article in Salon- hat tip to Paul M. at Jake's place.)

What is at stake here is NOT an interpretation of the U.S. Constitution but rather the California state Constitution. Under the U.S. Constitution, there is no express right to privacy or "fundamental rights" as such -- notions which 20th c. case law only recently found implied in the Due Process clause of the 4th Amendment. In contrast, the California constitution not only has its own body of case law from its own courts interpreting it, it now has amendments that expressly provide for the right of privacy and other rights not mentioned in the U.S. Constitution. They can be found here.

The big outstanding question is whether the November ballot initiative (assuming it is found to be legally qualified), which would amend the California state constitution to say that marriage is only between a man and a woman, could, if it is passed by the voters, in effect reverse the court's decision. Some speculate that it might not, given the court's finding that the right to marry is a fundamental right. Although I certainly would welcome that result in this instance, as a legal matter, I find the notion questionable. While I also do not think that any constitution should be amended by a majority vote of the electorate, given that the California constitution allows this, it seems both impractical and dangerous to suggest that a court's interpretation of a constitution could prevail over a constitutionally adopted amendment. As an institutional matter it makes no sense. I am sympathetic to the notion that Equal Protection cannot said to realistically exist with regard to marriage if the ballot initiative were to pass. Nevertheless, in the end I would not want four justices of the California Supreme Court to decide that their opinion cannot be altered by any means save appointment of new justices who would reverse them.

For now, however, I want to put aside those concerns, as important as they may be, and continue to celebrate the majority opinion, which reads in part as follows:

From In re Marriage Cases, S147999 (Cal. May 15, 2008):

Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution....

Although all parties in this proceeding agree that the right to marry constitutes a fundamental right protected by the state Constitution, there is considerable disagreement as to the scope and content of this fundamental state constitutional right. The Court of Appeal concluded that because marriage in California (and elsewhere) historically has been limited to opposite-sex couples, the constitutional right to marry under the California Constitution properly should be interpreted to afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional “right to same-sex marriage.” In the absence of any historical or precedential support for such a right in this state, the Court of Appeal determined that plaintiffs’ claim of the denial of a fundamental right under the California Constitution must be rejected.

Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In Perez v. Sharp, supra, 32 Cal.2d 711 — this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional — the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California.32 Instead, the Perez decision focused on the substance of the constitutional right at issue — that is, the importance to an individual of the freedom “to join in marriage with the person of one’s choice” — in determining whether the statute impinged upon the plaintiffs’ fundamental constitutional right. 32 Cal.2d at pp. 715, 717, italics added.) Similarly, in Valerie N., supra, 40 Cal.3d 143 — which involved a challenge to a statute limiting the reproductive freedom of a developmentally disabled woman — our court did not analyze the scope of the constitutional right at issue by examining whether developmentally disabled women historically had enjoyed a constitutional right of reproductive freedom, but rather considered the substance of that constitutional right in determining whether the right was one that properly should be interpreted as extending to a developmentally disabled woman. (40 Cal.3d at pp. 160-164.) And, in addressing a somewhat analogous point, the United States Supreme Court in Lawrence v. Texas (2003) 539 U.S. 558 concluded that its prior decision in Bowers v. Hardwick (1986) 478 U.S. 186 had erred in narrowly characterizing the constitutional right sought to be invoked in that case as the right to engage in intimate homosexual conduct, determining instead that the constitutional right there at issue properly should be understood in a broader and more neutral fashion so as to focus upon the substance of the interests that the constitutional right is intended to protect. (539 U.S. at pp. 565-577.)

The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs’ argument that we recognize they are not seeking to create a new constitutional right — the right to “same-sex marriage” — or to change, modify, or (as somehave suggested) “deinstitutionalize” the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords to same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords
to opposite-sex couples. For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of “same-sex marriage.”

Accordingly, in deciding whether the constitutional right to marry protected by the California Constitution applies to same-sex couples as well as to opposite sex couples and, further, whether the current California marriage and domestic partnership statutes deny same-sex couples this fundamental constitutional right,
we shall examine the nature and substance of the interests protected by the constitutional right to marry. In undertaking this inquiry, we put to the side or the moment the question whether the substantive rights embodied within the constitutional right to marry include the right to have the couple’s official relationship designated by the name “marriage” rather than by some other term, such as “domestic partnership.” The latter issue is addressed below. (See, post, pp. 80-82.)

In discussing the constitutional right to marry in Perez v. Sharp, supra, 32 Cal.2d 711 (Perez), then Justice Traynor in the lead opinion quoted the seminal passage from the United States Supreme Court’s decision in Meyer v. Nebraska, supra, 262 U.S. 390. There the high court, in describing the scope of the “liberty” protected by the due process clause of the federal Constitution, stated that “ ‘[w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one’s own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ ” (Perez, supra, 32 Cal.2d at p. 714, italics added [“to marry” italicized by Perez], quoting Meyer, supra, 262 U.S. 390, 399.) The Perez decision continued: “Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men.” (Perez, supra, 32 Cal.2d at p. 714, italics added.)

Like Perez, subsequent California decisions discussing the nature of marriage and the right to marry have recognized repeatedly the linkage between marriage, establishing a home, and raising children in identifying civil marriage as the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship. constitutional right to marry. In undertaking this inquiry, we put to the side for the moment the question whether the substantive rights embodied within the constitutional right to marry include the right to have the couple’s official relationship designated by the name “marriage” rather than by some other term, such as “domestic partnership.” The latter issue is addressed below. (See, post, pp. 80-82.)

* * * *

Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple. As noted above, past California decisions have described marriage as “the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.” (Marvin v. Marvin, supra, 18 Cal.3d 660, 684; accord, Maynard v. Hill, supra, 125 U.S. 190, 205 [describing marriage as “the most important relation in life”].) The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual’s happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual’s development as a person and achievement of his or her full potential.

Further, entry into a formal, officially recognized family relationship provides an individual with the opportunity to become a part of one’s partner’s family, providing a wider and often critical network of economic and emotional security. (Accord, e.g., Moore v. City of East Cleveland (1977) 431 U.S. 494, 504-505 [“Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. . . . Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. . . . Especially in times of adversity . . . the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life”].) The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life.39 Moreover, the opportunity to publicly and officially express one’s love for and long-term commitment to another person by establishing a family together with that person also is an important element of self-expression that can give special meaning to one’s life. Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of one’s liberty and personal autonomy. Although persons can have children and raise them outside of marriage, the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one’s parental relationship to one’s children (cf. Koebke, supra, 36 Cal.4th 824, 844-845; Elden v. Sheldon, supra, 46 Cal.3d 267, 275), and the additional security that comes from the knowledge that his or her parental relationship with a child will be afforded protection by the government against the adverse actions or claims of others. (Cf., e.g., Dawn D. v. Superior Court, supra, 17 Cal.4th 932 [when biological mother was married at the time of a child’s conception and birth, husband is the presumed father of the child, and another man who claims to be the child’s biological father has no constitutional right to bring an action to establish a legal relationship with the child].)

There are, of course, many persons and couples who choose not to enter into such a relationship and who prefer to live their lives without the formal, officially recognized and sanctioned, long-term legal commitment to another person signified by marriage or an equivalent relationship. Nonetheless, our cases recognize that the opportunity to establish an officially recognized family with a loved one and to obtain the substantial benefits such a relationship may offer is of the deepest and utmost importance to any individual and couple who wish to make such a choice.

If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage (and any similar institution, such as domestic partnership). In recognizing, however, that the right to marry is a basic, constitutionally protected civil right — “a fundamental right of free men [and women]” (Perez, supra, 32 Cal.2d 711, 714) — the governing California cases establish that this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state.

Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it. (Accord, Poe v. Ullman (1961) 367 U.S. 497, 553 (dis. opn. of Harlan, J.) [“the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected.”

Slip opinion, p. 49-63.

Thursday, May 15, 2008

Marx calls it offside

1972 Monty Python sketch, "The Philosophers' Football Match"

Late addition. My resident football player brought this to my attention. They showed it in school today, too late, however for Karl Marx Day.

Actually, I like the part about carding Nietzsche the best.

It may be old news for most people, especially the U.K. crowd, but it had me in stitches. Although not listed on the roster, I think that the inestimable Archbishop Rowan Williams might have been on the field somewhere.

Up in the air

I've never been very good at juggling more than one thing at a time, and now it's worse than usual. Some people can blog on the run -- I can't. It just makes my thoughts more disjointed than ever and the whole point, for me at least, is to try to make sense, even when I fall short.

Anyway, right now I'm in the midst of the latest health crisis with my mother, who is 84, and who lives alone in the Midwest in the house I grew up in. My brother and his family are in Seattle; I and my family are here in New York. We have been struggling with the difficulty of taking care of her long distance for a long time, worrying much about her and, at the same time, trying to respect her wishes, which have always been founded in a fierce determination to stay in the house, the only place she has lived since leaving her own parents' home when she married, something like 56 years ago. There is no family locally anymore and most of her friends are dead, too feeble to visit much or help at all, or moved away. She has a woman she pays to clean, take her to the doctor's, etc., and last year she managed to pass her driver's license road test to keep her license, and back then managed to drive herself to the bank and drugstore drive up windows from time to time (not a good idea, but no one could stop her). She hasn't even done that for a long time, however, and she will not take Meals on Wheels, so she forgets to eat or take her medications on time, gets mentally fuzzy and weak, and only goes out to see her doctor, who keeps saying there's nothing wrong with her but being old, as she struggles with incontinence and other issues, no longer able to work her computer and barely able to manage the telephone, unwilling to subscribe to cable t.v., so not doing much but read books when she can and talk to us on the phone.

A few weeks ago she passed out or nearly passed out or something and called the paramedics with her Lifeline. They came and found her with very low blood sugar. She revived enough that she refused to go to the hospital (fearing ending up in nursing home care), and then tried to make sure she got someone to bring her meals regularly and take her medications as prescribed. She sounded much better within a couple days, but a week or so ago she started having trouble keeping any food down and became dehydrated and mentally very confused. My brother and I called her several times, talked to some friends and neighbors who had seen her, talked to the doctor who kept insisting nothing was wrong or different, and finally, when one of her friends called me and reported that she still was not keeping any food down, even soup, I made some calls and got her taken to the hospital. They put her on i.v. feeding, drastically cut back on her medications, and she was sounding 5 years younger and sharper and overall much better with 24 hours, but they could not find out why she was not keeping food down. They finally concluded it was "gastritis" (o.k. stomach was irritated, but why?) and were about to discharge her, although she was still physically much weaker than she had been.

To make a very long story short, she is now in rehab at a local nursing home, and once again we've got to decide what happens next, with none of the realistic options being what she wants, some tension and life-long difficulty communicating between me and my brother, the problems of dealing with any of this long distance, and our own normally busy lives with our family, jobs, etc. There have been days like last Friday when I was finishing work articles and trying to keep in touch with my daughter, who was taking her big European History AP exam in the afternoon, going off to track meet far away from here, and my supposedly picking her up and taking her nearly 3 hours in the opposite direction for a weekend college showcase soccer tournament, while my brother had important business meetings and presentations to attend to, and I needed to be the one making the calls to the doctor, hospital, and nursing home. Then, just when I thought things were getting difficult for me, in the midst of a beautiful, sunny spring afternoon on the soccer fields, I heard the story of Mary Frances and her family ("When words fail" below), which made both heartsick for her, her husband, and their surviving daughter, and thankful that my own problems were pretty mundane in comparison.

Well, I never give the "short" version of anything, do I? Anyway, this is my way of saying that blogging is not on the top of the list of my priorities anytime soon. Just got home at 2:30 a.m. this morning after picking up my son from college last night, have much work to do, contemplating various travel plans to the Midwest, and have one more big soccer tournament gig out of state for Memorial Day weekend, not to mention more track meets and yes, there is church in the midst of it all.

So, I guess my long unfinished essay on "What does science have to do with it?" will remain in pieces for now. And I will not be able to figure out a way to talk about the most peculiar thing in Steven Pinker's article, "The Stupidity of Dignity," which I read earlier in The New Republic (now featured at The Lead). It was kind of snarky quote on his part, but it suggests to me some of the underlying pathology among some of the neo-Puritans (although in this case it was a neo-con Roman Catholic). Just in case someone misses it, it was this quote by Pinker from Leon Kass:
Worst of all from this point of view are those more uncivilized forms of eating, like licking an ice cream cone -- a catlike activity that has been made acceptable in informal America but that still offends those who know eating in public is offensive. ... Eating on the street -- even when undertaken, say, because one is between appointments and has no other time to eat -- displays [a] lack of self-control: It beckons enslavement to the belly. ... Lacking utensils for cutting and lifting to mouth, he will often be seen using his teeth for tearing off chewable portions, just like any animal. ... This doglike feeding, if one must engage in it, ought to be kept from public view, where, even if we feel no shame, others are compelled to witness our shameful behavior.
(Pinker, "The Stupidity of Dignity").

Always the worry that people will somehow enjoy themselves too much, never mind that health, life, and love are always on the brink of being lost. I'll never get what all the fuss is about.

Anyway, there will be little or no blog activity for awhile, while I get back to the muddle of my life and try to find some order if not peace in it. Prayers continuing for everyone else, my friends and acquaintances online and in RL, especially those struggling with the horrific losses and mounting challenges due to the tragic events in China and Myanmar.

What does science have to do with it? (Part 1)

[Originally written 5/04/08]

A week or so ago, discussion at Fr. Jake's produced the following question and response (among others). First, the question from Peter:
The issue ... is whether homosexuality is biologically or genetically determined or not. That's not a question to do with one's moral attitude towards those who have a homosexual orientation or who behave homosexually (not always the same people) but simply a question of scientific fact. . . . A large part of the TEC argument in their presentation to the 2005 AAC was that since homosexuality is a natural biological variation in humanity, it was a justice issue that a normal variation in humanity shouldn't be condemned. If however, the science shows this not to be the case, then what we have is in fact a deep-seated human behaviour, perhaps with genetic or biological predisposers but ultimately an environmentally produced phenomena, similar to other forms of human emotional response. This would then put it on the same category as things like kindness, anger, paedophilia, liking soft cheese, all human behaviours for which we recognise complicated patterns of formation. Without the clear scientific evidence of biological/genetic causation the justice argument falls apart
One response came from a scientist, IT:
...As a professional geneticist (although not one who studies homosexuality; my gig is cancer research), and a professor who teaches the subject, may I point out YET AGAIN that someone does not understand genetics.

Almost no complex traits can be traced to a single gene. Okay? NONE. Not even blue eyes/brown eyes, although they are pretty close. Certainly nothing as complex as behavior.

Even in fruitflies.

Nothing complex is solely nature or nurture, but both. You may have the genes to be 7 feet tall but if you aren 't eating a good diet you won't get there.

There are plenty of studies showing that human sexuality exists on a continuum, not a binary. It's extremely complex.

However, there are also plenty of studies showing a very strong genetic component to homosexuality; it may not be the single gene absolute concordance that the conservatives want (see preceding) but it is vastly, vastly higher than chance.

Go read Pubmed if you want the citations...The VAST majority of medical and psychiatric opinion is clear on the subject...
Jake reposted part of the question and response here as well as some resources on the "Nature and/or Nurture" debate. The discussion that followed was enlightening in many respects. However, it did not quite pin down what science has to do with the moral issues that raise these questions in the first place, although one person (Scott) commented:

The temptation presented to the Christian tradition by the scientific study of the genetics of human sexuality is either to use that study to "prove" that variations away from thorough heterosexuality are sinful, or that they are not. Such direct application of scientific analysis (in either direction) wholly ignores the theological richness of the questions of "relatedness" (love) and "separation" (sin).

I think most would agree that the scientific answers to the question of the nature and origins of human sexual orientation cannot resolve the moral issues. Yet people on both sides seem to think the science is relevant, even though at some point those who condemn homosexual behavior say they do not care how "good" or "natural" or biologically determined it may be because God has (supposedly) given the last word on the subject in the Bible.

Monday, May 12, 2008

When words fail

words fail
standing on the sidelines
hearing a friend
tell of a friend
whose mom died
and two weeks later
her daughter
killed herself at home
turtleneck up to her chin
in the casket
yes, I will write the words
but what comfort
can they give?
she, her husband
and their younger daughter,
the one we knew,
have survived and must go on
in such pain and grief
I cannot imagine
they say bad things
do happen
to good people,
but this should not be
not to them
not Mary Frances, especially,
whose warmth and smiles
have always cheered me so
when I was tired or distant.
I know - children are dying
mothers are mourning
but these I knew