Stardate 20040313.1156

(On Screen): Bill Quick writes about the most recent events in the ferment resulting from the decision by the Mayor of San Francisco to begin issuing marriage licenses to gay couples. Bill says the following:

This was entirely to be expected. I said the court would take its time. The real question will be whether the Defense of Marriage initiative California voters put into law is constitutional under the California constitution. My bet is that it isn't:

California Constitution, Article 1, Declaration of Rights, Sec. 7.

(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

I don't agree with Bill that the law in question violates this provision of the California constitution. On the other hand, IANAL and I don't ever try to predict how courts in this state will decide contentious social issues.

Nonetheless, my understanding of the legal situation is that under that law, all straight men and gay men have equal ability to marry women. Neither straight men nor gay men have the right to marry other men. (And similarly for straight and gay women.)

Of course, equality under the law means that neither rich men nor paupers are permitted to sleep under bridges. There's unquestionably a difference between straights and gays in what they want to do. But I don't think that is legally significant.

So far as I know, differences in desire alone do not create a "class". Heroin addicts desire to use heroin, but this clause in the California constitution does not therefore nullify the laws against illicit drugs. People who enjoy driving 130 MPH on the highway are not a class which is discriminated against by traffic laws. For any law, there will be people who want to do what the law bans. That, alone, doesn't make them a legal class subject to discrimination under this clause.

And a good thing, too. If it did, then it would be impossible for California to outlaw anything.

I think that the most common argument in response to the above would be that this law permits straights to marry those they love but prevents gays from marrying those they love, and that means it is discriminatory. Perhaps. However, by analogy consider that alcohol is legal and heroin isn't. Therefore, alcoholics can legally purchase their drug of choice, while heroin addicts cannot. Does that mean California is discriminating against heroin addicts? In a sense, yes, but that doesn't mean this clause of the California constitution kicks in. Both alcoholics and heroin addicts are permitted to buy alcohol, and neither may legally purchase heroin. Legally speaking, there's no discrimination.

Gays are not the only people who prevented from legally marrying those they love. California also does not recognize plural marriage, marriage to children, marriage to animals, and marriage to dead people. (You think I'm joking about that?)

California also won't issue a marriage license to a man who wants to marry his life-like love-doll. California doesn't permit marriage to inanimate objects. (Even if he claims she's more than just a pretty face...) As soon as you argue that equality under the law requires that everyone be permitted to marry those they love, all kinds of strange and wonderful relationships might end up legally recognized by the state of California.

The case law on this kind of thing I think is pretty clear: desire is not legally relevant. We are not legally differentiated by what we want to do. If the overt opportunity is the same, it doesn't matter whether people desire different things and some of those desires are thwarted by the law.

If the law had said that straight people were permitted to marry and gay people were not, that would have been discriminatory. But that isn't what the law says. Gay people are permitted to marry, just as straights are. Everyone is permitted to marry someone of the opposite sex, but no one is permitted to marry someone of the same sex. Legally speaking, that's equality.

Whether it's the correct policy is an entirely different question, and I don't believe that it is. I've long been in favor of legal gay marriage. But using court activism to force this kind of policy on an unwilling electorate is the wrong strategy for those who believe gays should be permitted to marry. It's wrong in part because it is foolish; it risks provoking backlash. But it's also wrong because it subverts our system.

The right strategy is to convince the electorate and to prevail within the democratic process, even if that takes a long time.

Update: Bill Quick responds.