But that’s not the way it works, Otto. If you raise a state constitutional claim, you will always raise a corresponding federal constitutional claim as a back-up in case you lose at the state level. So it will play out like this. If the California Supreme Court strikes down gay marriage, San Francisco will appeal to the U.S. Supreme Court. If the U.S. Supreme Court denies cert, one (or probably more) of the newly-married couples will file an action in federal court raising federal constitutional grounds. It would be pretty hard for the U.S. Supreme Court not to take that case since the Ninth Circuit would probably uphold gay marriage. Winning in the Ninth Circuit is, of course, the kiss of death at the U.S. Supreme Court.
Let’s suppose, however, that the California Supreme Court upholds gay marriage. Within a week, someone will have filed a federal case in a state with a DOMA claiming that DOMAs are unconstitutional. Once again, there is no way the Supreme Court could avoid this case.
Do you see the inherent tension in these two positions? This is exactly what I’ve been trying to point out. You cannot argue on one hand that “It’s nobody’s business but ours.” while arguing on the other hand that gays should be allowed to marry so they can get access to a big bundle of rights and benefits. These rights and benefits are not somehow constitutionally mandated. They’re offered by society to help achieve certain goals. In other words, they represent policy decisions. The way to convince society that gays deserve those same rights and benefits is to demonstrate that offering them to same-sex couples will help achieve the same goals.
Let’s take an example from private industry. Married workers have traditionally been allowed to carry their spouses on their health insurance. Companies offered this benefit because it helped them retain good employees. This benefit was not available, however, to unmarried couples. Over the last few years, however, a number of companies have begun providing insurance plans that do allow unmarried couples, whether same sex or otherwise, to carry their partners on their insurance. Why? Because doing so furthered their goal of retaining good employees.
The beauty of these kinds of argument is that they are convincing to everyone, even conservatives. Who can argue with something like, “A study by the Rand Corporation reveals that gay marriage will save 1.3 billion dollars annually in health care costs.”
I am frankly baffled that no one is even making an attempt to do this. I don’t think it’s that difficult. For example, while I have no data, I would assume that gays in long-term committed relationships are, on average, healthier than gays who aren’t in committed relationships if for no other reason than that they have fewer partners and, therefore, less exposure to STDs. Therefore, society should encourage long-term committed relationships for gays.
Q.E.D.
Would it be hard to conduct such a study? Not at all, a sophmore psychology major could do it. In fact, I have great difficulty believing that such a study hasn’t been done.
The problem is, Otto, that he wouldn’t be unless the U.S. Supreme Court goes the whole hog like Massachusetts did. Otherwise, the federal government will not, at least currently, recognize same-sex marriages for immigration purposes even if some states allow them.
This is, once again, exactly what I’m concerned about. If you make everybody takes sides on the issue today, gay marriage will almost certainly go down in flames. Worse, having been decided, the issue won’t be re-visited for decades. Legal action at this point is going to be a slow-motion disaster – yet that’s exactly where this battle is being fought.
With political action, like civil unions and even marriage in some states, however, the thing will be a fait accompli in ten years.