INALIENABLE RITES? Gay Marriage in the Courts

Friday, March 25, 2005

On March 14, 2005, a California Superior Court judge ruled that the state's ban on same-sex marriage violated the state constitution. Although the decision is certain to be appealed up to the California Supreme Court, California may now be on the road to joining Massachusetts in legalizing gay marriage. Did the Superior Court judge decide correctly? Just how compelling are the constitutional arguments for and against gay marriage? Peter Robinson speaks with Terry Thompson and Tobias Wolff.

Recorded on Friday, March 25, 2005

Peter Robinson: Today on Uncommon Knowledge: gay marriage--speak now or forever hold your peace.

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: gay marriage. On March 14, 2005, a California Superior Court judge ruled that the state's ban on gay marriage violates the California Constitution. "It appears," Judge Richard Kramer wrote, "that no rational purpose exists for limiting marriage in this state to opposite sex partners." Although the decision is certain to be appealed to the California Supreme Court, California may now be on its way to joining Massachusetts in legalizing gay marriage. Did Judge Kramer rule correctly? Just how strong are the arguments for and against gay marriage?

Joining us today, two guests. Tobias Barrington Wolff is a professor of law at the University of California at Davis. Terry Thompson is a lawyer with the Alliance Defense Fund.

Title: Seven Grooms for Seven Brothers

Peter Robinson: Marriage advocate Maggie Gallagher, "The reality is that there is going to be a national definition of marriage. The question is whether it will be the novel definition now being foisted upon us by the courts or the one affirmed by the vast majority of the American people." Is that a fair way to frame the issue?

Tobias Wolff: Nope. It's been said before and it wasn't right then and it's not right now.

Peter Robinson: Terry?

Terry Thompson: It's absolutely the right way to say it. Marriage is all about a man and a woman and rearing children.

Peter Robinson: All right. California Superior Court Judge Richard Kramer ruled this past spring in favor of gay marriage, arguing, as had the Supreme Court of Massachusetts before him, that restricting marriage to heterosexual couples lacks any rational basis. Let me give you another quotation. Editors of National Review magazine, "Kramer does not hold that the reasons for holding the view of marriage as heterosexual, that everyone has held for millennia, are defeated by other better reasons. He holds that there are no good reasons in the first place. One would think that even a proponent of same-sex marriage would want to do better than that." Tobias, do you want to do better than that?

Tobias Wolff: What Kramer held is that there are very good reasons for straight couples to want to be married and that gay couples have exactly the same reasons to want to be married and that there's no good reason to prevent them from doing so. And I think that's a very good argument indeed. And his argument was very persuasive. The fact is that…

Peter Robinson: Hold on. Any rational basis, there is no rational basis for denying marriage to same-sex couples. Now surely if you're going to be making a comprehensive argument and you're really trying to attempt to persuade the country, you have to say of course there are rational bases however, they are trumped by other better arguments. You just don't want to play that game at all?

Tobias Wolff: Well, let me ask you a question, Peter. By conservative estimates, there are probably about ten million gay men and lesbians in the United States. And they're going to be there. They're going to be having relationships and they're going to be having kids no matter what we do in our laws and no matter what courts say. And the question about whether gay and lesbian couples should have an equal right to get married under our state laws--we're talking about state laws here, we're not talking about private religious organizations. The question is what is it rational to tell these folks that they should do? Should they just stop being gay? Are we telling them…

Peter Robinson: No, no, no.

Tobias Wolff: …go have…

Peter Robinson: That was certainly not the question put to Judge Kramer. Judge Kramer simply had to ask does the Constitution of the State of California make it impossible to prohibit same-sex marriage? Right? That's really the question that he was facing.

Tobias Wolff: Question he was facing was does California have a good reason for telling gay and lesbian couples that they shouldn't have the same rights and the same opportunities that straight couples have.

Peter Robinson: A good constitutional reason.

Terry Thompson: I think that's the wrong way to frame the question. The question really is is there a rational basis for the statutes that are on the book now? Does California have a rational basis for what, as we said in Prop. 22…

Peter Robinson: Proposition 22 which was on the ballot in the year 2000 and passed by a 2 to 1 margin and defined marriage as that between a man and a woman in the State of California. Go ahead.

Terry Thompson: Only marriage between a man and woman is valid or recognized in California.

Peter Robinson: Gotcha.

Terry Thompson: So that was Proposition 22. 61.4% of the people said that…

Peter Robinson: Right.

Terry Thompson: …very loud and clear. So the question is not does it harm gay couples or how does that harm me but the question is is there a rational purpose for having a law similar to what we just said that restricts marriage in California to only a man and a woman.

Peter Robinson: Okay, name a rational purpose.

Terry Thompson: Oh, there's not only a rational purpose but I believe it's compelling purpose. People are going to procreate and, you know, whether the government approves of it or not or encourages it or discourages it, they will procreate. And it's the government's interest to steer procreation into marriage. If they do not, if the children are--we don't want to be a "Lord of the Flies" type society…

Peter Robinson: Okay. For my purposes, that's good enough. You've just named a rational reason. Judge Kramer bats it aside.

Tobias Wolff: Now a rational reason--Terry, I need you to explain a little bit more. A rational reason for having the institution of marriage absolutely--a rational reason for excluding gay and lesbian couples from that institution--I don't get it. Gay and lesbian couples have kids. And we want them to be responsible, committed parents just like straight couples.

Peter Robinson: Quick answer. Quick answer.

Terry Thompson: Yeah, well I'll answer that, but first of all, gay and lesbian couples, by definition, can't procreate spontaneously. They have to have outside help. And so what the government is trying to do is narrowly tailor a law that will steer procreation into marriage.

Peter Robinson: Let's take a closer look at Terry's argument that the purpose of marriage is procreation.

Title: First Comes Love, Then Comes Marriage…

Peter Robinson: Whereas lots of heterosexual couples never have children--Judge Kramer makes this point and Tobias makes this point--many homosexual couples adopt children and many lesbian couples have children by way of artificial insemination as well as adoption. What do you do with that?

Terry Thompson: Okay, what we first have to do is why we have marriage and we've said it's because we want to steer procreation into marriage...

Peter Robinson: Hold on…

Terry Thompson: …because…

Peter Robinson: Make a note. I want to know why you want marriage in a moment. I mean, what you think the institution is for. He says it's for procreation.

Terry Thompson: Okay. The state has an interest in steering people that way. They give certain benefits. There are certain legal responsibilities so that the children, by and large, are raised with a mother and a father. It's not always the way but the state is tailored…

Peter Robinson: It is a crude instrument but the intention is rational.

Terry Thompson: Intention is rational. So if we go to the other side, rather than saying what harm the same-sex marriages cause, we want to know how does this implicate the state? Why is the state interested in sanctioning same-sex marriage?

Tobias Wolff: I'd love to answer that question.

Peter Robinson: Isn't the logic of procreation that these days when you go to get your marriage license, they ought to ask what about children?

And if it's impossible, you shouldn't get a marriage license. Right?

Terry Thompson: If we have people that can procreate spontaneously, accidentally, same-sex couples cannot. So the state has an interest in steering these people into marriage--the heterosexuals. Now you're asking me--which is very good question--why don't say--I have some friends, 75 years old, both widow and a widower, they got married. They're both 75 and there's not much of a chance, I don't think, they're going to have any children.

Peter Robinson: Right.

Terry Thompson: What this does, it's a lower basis, maybe the state doesn't have as much interest but what this does is models for younger people what marriage is supposed to be and what relationships are supposed to be. For heterosexual couples, the standard is being married, not cohabitating.

Peter Robinson: Now here's what I answer to you. What I answer to you is I am very suspicious. I think that what you're doing is coming up with the best argument you can, even though it doesn't really work very well, you have to stretch it and pull it to make it cover the cases that you just named, the hard cases. But what's really going on is that you consider homosexuality wrong. And, by the way, you would not be alone. That has been the traditional understanding in Judeo-Christian morality, but that, at this stage of the legal game, in the 21st century, you feel inhibited from making such a claim in court so you're falling back to your second best argument, and is it ever second best.

Terry Thompson: No, I think you have a--we were talking about the legal issues in court and that's all we argued in front of Judge Kramer.

Peter Robinson: But, in other words, why didn't you just say to the judge, look, here's a rational basis. Throughout the millennia of the development of the Judeo-Christian understanding--and it would be extremely easy to produce the documentation on this--it has been a central understanding of the majority opinion that homosexuality is, in and of itself, disordered or wrong or simply--you can apply any number of words, and bowing to that overwhelming moral tradition is entirely rational, but nobody makes that argument.

Terry Thompson: No, they don't.

Peter Robinson: Would you feel that that was a more honest argument?

Tobias Wolff: I think it's a more honest characterization of why a lot of folks are hostile towards gay and lesbian couples getting married.

Peter Robinson: The true animation of…

Tobias Wolff: Sure. Absolutely.

Terry Thompson: But all we're really talking about here is what's the state's interest. And…

Tobias Wolff: Can I just respond to that state's interest question?

Peter Robinson: Yes, please.

Tobias Wolff: You know, in large measure, I'm very much in agreement with a great deal of what Terry has just said about the purposes behind marriage. Marriage is about steering people into responsible sexual behavior. It's about steering people into stable unions, which are good for them and are good for society, economically and socially. And it's about creating stable and secure home lives for kids so that kids are going to be raised in the atmosphere where they'll be most likely to succeed. And of course, these are all interests that gay and lesbian couples can partake of in exactly the same way.

Peter Robinson: Not quite exactly.

Tobias Wolff: And the fact that most straight couples, if they choose can biologically procreate between each other whereas gay couples either have kids from previous marriages or from whatever the case may be. I challenge you--both of you--to name a single right or benefit in law or society that we reserve to somebody who has been either produced as the result of a biological union between a married couple or that we reserve to the parents because they are capable of biologically procreating. All the things that we provide the kids, all the things that we provide the couples--education, prenatal care, postnatal care--we don't say but you're only going to get this if you and your husband or you and your wife can biologically procreate between the two of you. We say, however you have kids, we want to support those kids.

Peter Robinson: Next, comparing same-sex marriage to interracial marriage.

Title: Not So Black and White

Peter Robinson: Judge Kramer, in his decision, cites a 1948 decision by the California Supreme Court striking down a law against interracial marriage. Marriage advocates argued that those laws against interracial marriage, which were prominent across the country, were about racism, not marriage. They were attempting to enforce racial understandings, not understandings of the underlying relationship of marriage. And let me quote Maggie Gallagher once again. If the courts adopt the view that "favoring the traditional understanding of marriage is analogous to favoring racism--" and Judge Kramer already has taken a large step in that direction--"then many churches, faith-based organizations and schools will eventually face penalties in the public square." So it's not quite just a matter of permitting marriage to gays and lesbians. Really in order to do that, you have to rewrite social understandings of all kinds. And if you do it through the court, you're going to be overriding the popular will or at least deeply and firmly embedded will of large organizations.

Tobias Wolff: Right. Let me just say a few things to that. First of all, the issue of race and race discrimination and the issue of sexuality and sexual orientation discrimination are different in a lot of ways. They also raise some very similar issues that go to, for example, the question of whether society is going to try to mark off first class and second class citizens. The California Supreme Court, when it was presented with the anti-miscegenation laws, had…

Peter Robinson: The same '48 decision that Kramer cited.

Tobias Wolff: The Perez decision--had the opportunity to rest that decision purely on arguments about racism. They were certainly presented to the court and the court talked about racism in that opinion but it also decided that it was incumbent upon the court to recognize that there was a deeper principle that applies to everybody. And it's a principle that says that it's a natural part of the human condition to want to form connection with another human being and that we form connection in ways that the state has an interest in fostering as secure and stable and that people have a right to enter into that kind of stable relationship. And that an anti-miscegenation law impermissibly restricts that right for no good reason, for no good reason because of issues having to do with racism.

Terry Thompson: All of these miscegenation cases, from Virginia v. Loving and Perez, each one of them had to do with a man and a woman, every one of them. Zablocki, Skinner, all of these--these whole series all had to do with a man and a woman. And the common law is based on marriage between a man and a woman. The judge cannot redefine marriage without getting into a separation of powers problem.

Peter Robinson: The slippery slope argument. Let me ask Tobias whether extending marriage to include same-sex couples might eventually lead to the legalization of polygamy as well.

Title: Seven Brides for One Brother

Peter Robinson: [You] talk about the natural human impulse to reach out for what, companionship or fulfillment…

Tobias Wolff: And family.

Peter Robinson: …and family. All right. How do you use that language but construct a barrier--perhaps you don't wish to construct a barrier. How do you use that language while still constructing a barrier against polygamy?

Tobias Wolff: I don't have an interest in sitting here and moralistically proclaiming that polygamy is wrong and against God's will and never to be considered.

Peter Robinson: Polygamy wouldn't bother you?

Tobias Wolff: I find it personally distasteful. It's not something that I would be interested in. I think the state has very good reasons for fostering stable relationships between two people because I think there is good reason to believe that stability in a two-person relationship is fundamentally different from stability in a multiple-person relationship. It's also the case that polygamy in the United States has most frequently been practiced in ways that involve abuse and subordination of women. And to the extent that polygamy has been viewed very skeptically, it's been partly about trying to protect the equal status of women. And I think the state has a serious interest in making sure that the relationships it fosters are stable.

Terry Thompson: What you're talking about is a slippery slope argument. I think the state has a very, very…

Peter Robinson: Am I wasting time on it or do you think it's serious?

Terry Thompson: No, I think it's a serious problem. In the event that the Supreme Court affirms Judge Kramer's decision, there will be no principled reason for disallowing marriage relationships between, for example, a mother and her daughter. They have no interest in sex but they want to get the incidences of marriage. They want the benefits.

Tobias Wolff: Now that's just a silly thing to say.

Terry Thompson: Let me just finish. Let me just finish.

Peter Robinson: I don't see why.

Terry Thompson: I don't see why. And they would. Why not me and my business partner? My wife dies, my business partner so I won't have to write a buy-sell agreement. What about--heard a lot about the bisexual folks recently.

Peter Robinson: Why is this silly? Why is it silly?

Tobias Wolff: It is silly because to suggest that there is no principled difference between a gay or lesbian couple who are in love with each other, who are committed to each other and who want to spend…

Peter Robinson: How do you test their love? How do you test their love?

Tobias Wolff: Well how do you test for love in the marriage institution now for heaven's sake? I mean, if your business partner is a woman and you two view some business opportunities…

Peter Robinson: Fine but you're making his argument, not…

Tobias Wolff: ...the two of you can get married today.

Terry Thompson: There's a great confusion between the emotional aspects and the state's interest. My wife is, I think, a very beautiful woman. I was attracted to her, sexually attracted, was intelligent--I couldn't wait to get out of college to marry her.

Peter Robinson: This is a PBS show now, settle down…

Tobias Wolff: I'm glad it's the straight guy who talked about sex first but that's…

Terry Thompson: I expect some exactly same feelings are held by same-sex couples.

Peter Robinson: Right. Okay.

Terry Thompson: Right. But the state has absolutely no interest--they don't care a rat's eyebrow about my feeling for my wife. That doesn't impact the state's or implicate the state's interest. What does implicate the state's interest--they knew that when my wife and I got married we were likely to procreate and it might be by accident. And they didn't want our children to be wards of the state.

Tobias Wolff: The folks on the other side of this debate always talk about threats to the institution of marriage. That characterization of marriage seems to be one of the greatest threats that I've heard in a long time. It is such a denuded and thin and really sort of tragic characterization of what marriage is about. Marriage is about a connection between people who are in love with each other and making a life together. How can you say anything else?

Terry Thompson: It's not about emotional attachment. It's about the state's interest in steering procreation into marriage. It's not about emotion. It's not about love. That may be a reason but some…

Peter Robinson: But on your argument, if you try to bring that fuller, richer--I mean, let the poet speak--yes, that's closer to our understanding, at least what we all hope to end up in a married relationship, right? But if that's your principal definition of marriage, then I can't begin to see grounds for excluding polygamy or--maybe it's an act. Maybe the mother and the daughter, all they want is certain legal benefits but they come in and say we're in love--I don't see the grounds for excluding it.

Tobias Wolff: Well, we've talked about polygamy ad nauseum. The reasons in the past and I think still in the present why incestuous relationships have been excluded from marriage and from sex relationships…

Peter Robinson: Right, right, right.

Tobias Wolff: …is number one, there's a great danger that those are not in the consensual relationships, that there's a great opportunity for coercion in the family context. And second, that if you allow and encourage sexual relationships within the family, then you're going to destabilize families by always having the possibility of competition.

Peter Robinson: Next, will opponents of gay marriage ultimately be forced to seek passage of a constitutional amendment?

Title: A Tough Act to Follow

Peter Robinson: Judge Robert Bork, speaking on this program, as a matter of fact, just over a year ago, "The Supreme Court of the United States is ready to give a right to homosexual marriage or at least will be ready in a few years. The only way to stop this is a constitutional amendment saying that marriage is something between a man and a woman." Now first question is just sort of predict it. Is he right about that? Do you think that the Court--the Lawrence decision--that the Court is moving in the direction of granting a right to gay marriage?

Tobias Wolff: I don't think the Court is going to be ready to take up that issue for some time.

Peter Robinson: Some time is a decade or three years or…?

Tobias Wolff: You know, playing sort of baseball in the Supreme Court is a hard thing to do. I think it's not going to be anytime soon.

Peter Robinson: Okay. What do you think?

Terry Thompson: I think Judge Kramer has put some rocket fuel under this federal marriage amendment. I think we're going to get a federal marriage amendment and I suspect we may have a constitutional amendment in California as well. And I predict we're going to win in the Supreme Court in California.

Peter Robinson: Two large points of yours have emerged on this program. One is that you don't want the courts overturning an ancient social understanding which until now, nobody has really questioned, is also reflected in law. Right?

Terry Thompson: Right.

Peter Robinson: So you don't want it to happen through the courts. Right. So that means that you have no choice now but to direct your argument to the people, get a ballot initiative, a constitutional amendment--frankly, I can't remember how the constitution of California gets amended. Can that be done by ballot?

Tobias Wolff: It can be done by sneezing.

Peter Robinson: Oh, is it that easy?

Tobias Wolff: There's a robust tradition of amending the constitution in California.

Peter Robinson: Do you genuinely--here are the people you need to persuade. You've already got your folks with you. The people who tend to be waverers would be mildly liberal and centrist, probably Democrats. Do you think that this procreation argument, which in my judgment, Tobias has rightly suggested, doesn't cover anything like all cases and in the second place is a really denuded, stripped down, cold definition of marriage. How can you hope to persuade the great mass of people in the middle?

Terry Thompson: Right. You have to do some persuasion because people are compassionate. The same compassion we had 30 years ago when we were worried about a few people that were in bad marriages so we had no-fault divorce.

Peter Robinson: Right.

Terry Thompson: But we had unintended consequences. And now we have maybe 50% of the marriages end up in divorce with children that are split. So we do have unintended consequences because of our compassion. So…

Peter Robinson: But you'd stick with that procreation argument?

Terry Thompson: Sure I'd stick with the procreation argument and also I think it's very important that people shouldn't be offended. Gays, lesbians should not be offended that we want to steer procreation into marriage because it's better for everybody. It's common sense that children do best with a mother and a father. If we…

Tobias Wolff: Terry, how can you say that gay and lesbian couples should not be offended by the suggestion that it's common sense that they're inherently less good parents?

Terry Thompson: I didn't say that. There are…

Tobias Wolff: That's exactly what you just said.

Terry Thompson: Certainly there are anecdotal--that there are bad heterosexual parents and there's probably some good--not probably--there are good same-sex parents but that's an anecdotal thing, the laws mare made in general.

Tobias Wolff: You think it's a good thing…

Tobias Wolff: It's a good thing to be reasonable but I think that to suggest that you can package all of these arguments in sort of, you know, legalistic sounding terms and just ignore the real harms that are being done to gay and lesbian couples and their children in the United States right now is really just unfair.

Peter Robinson: Finally, predictions. What's the future of gay marriage?

Title: Playing It Straight?

Peter Robinson: A decade from now gay marriage will be--this is a multiple choice question--A) permitted throughout the country, B) permitted in only a few states but permitted in some states or C) be forbidden by virtue of an amendment to the Constitution? A decade from now, what do you think is going to be the actual fact as a matter of political prognostication? Tobias?

Tobias Wolff: Gay couples will be permitted and will be very successfully taking advantage of the opportunity to be married in a relatively small number of states.

Peter Robinson: I see. Okay. Terry?

Terry Thompson: I think the remainder of already--we have 37 states that have passed D.O.M.A., Defense of Marriage Acts, either as a statute or constitutional amendment. I predict that will continue. I predict California will probably enact a constitutional amendment. Proposition 22 ended up as a statute not as a…

Peter Robinson: Over--without any help from the governor, by the way. He's already said that he will take the ruling of the California Supreme Court as final. So it'll have to be by you rather than Arnold Schwarzenegger. You still think you could get it through?

Terry Thompson: Yeah, we're going to do it in California.

Peter Robinson: All right.

Terry Thompson: But I suspect there'll also be a lot of pressure for a federal marriage amendment.

Peter Robinson: A decade from now, will gay marriage at least be permitted in Massachusetts whose Supreme Court has already said it is legal?

Terry Thompson: I don't know. I think it's another year or so before it finally gets to this constitutional amendment in Massachusetts where, you may be more up on it than I am, Tobias, but I'm not sure.

Tobias Wolff: Massachusetts is a great note to end on because the fact is that in Massachusetts, gay and lesbian couples have been getting married for ten months now as of this time this filming--more than a year by the time this program airs.

Peter Robinson: Any idea of the number of couples?

Tobias Wolff: The last number that I've heard is about 5,000 but I'm not sure.

Peter Robinson: That's a big number.

Tobias Wolff: And divorce rates have not skyrocketed in Massachusetts. Society as we know it has not ended in Massachusetts and people are starting to figure out that really this is just about equal treatment.

Peter Robinson: So within two years the Governor of Massachusetts, Mitt Romney, will indeed have a constitutional amendment before the people of the commonwealth of Massachusetts…

Tobias Wolff: Well, it's not up to Governor Romney. It's up to the Massachusetts legislature sitting in constitutional convention and I think there's very good reason to think that they are not going to go forward with that step.

Peter Robinson: So…

Terry Thompson: I disagree with Tobias' characterization of what will happen, that everything is cool and nothing is going to change. And I think you only have to look to Scandinavia where in the Netherlands in 2001, they did adopt same-sex marriage and things are changing there. Look at all of Scandinavia--in some--some of the liberal parts of Scandinavia, marriage is non-existent. And…

Tobias Wolff: And that's gay people's fault?

Terry Thompson: Here's what happens. Heterosexuals don't want to get married. The…

Tobias Wolff: Because of gay people?

Terry Thompson: Because the marriage does not mean what it used to mean.

Tobias Wolff: Because of gay people?

Terry Thompson: Because of a change in the law, not because of gay people.

Peter Robinson: You are arguing that that change in the law in Sweden, right? It's not--Denmark is a more conservative…

Terry Thompson: Yeah, it's in the Netherlands and Norway and Sweden, yes.

Peter Robinson: And that the change in the law has indeed affected…

Terry Thompson: Drastic effects. I used to be an engineer. You don't do something that's going to change society without doing…

Tobias Wolff: Engineers know that you have to look for causal relationships. In the last four years, greenhouse gases have skyrocketed and that's not gay people's fault in the Netherlands either. You need to show a causal relationship and you can't do that.

Terry Thompson: Exactly my point. You have to look at long-term results.

Peter Robinson: Thank you very much, Terry Thompson, Tobias Barrington Wolff, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.