Marriage and legal nonsense

One of the most misunderstood stories in the Western moral tradition involves the “judgment of Solomon,” which usually is taken as a metaphor for splitting the difference.

But that’s wrong. The story, for those who have forgotten, involves two harlots who came to King Solomon to resolve a dispute. Both recently had given birth, but one women’s baby lived and the other’s died. The woman who went to sleep with a living child and awoke to find a dead baby in her arms claimed that the other had switched their infants. Solomon listened to both and then announced that he would “cut the living child in two, and give half to one woman and half to the other.”

When one of the women renounced her claim “in anguish” and the other accepted the verdict, the king gave the anguished harlot the living child, for she had reacted as only the true mother would. The point, in other words, is that Solomon didn’t split the baby. Justice divided is no justice at all.

That’s essentially the problem with the California Supreme Court’s ruling Tuesday, upholding Proposition 8’s ban on same-sex marriage while leaving legally intact the 18,000 or more unions the state already has sanctioned.


Legal precedents notwithstanding -- and the six clearly nervous justices who made up the majority in this case reached all the way back to the state Constitution of 1849 for those -- Tuesday’s decision was intellectually and morally incoherent. It essentially tells Californians that a right as fundamental as the ability to choose the marital partner of your choice is a kind of judicial lottery ticket -- if you got in early, you win, but those who arrived a few days late lose. Sorry.

You could feel the justices straining for their convoluted result in every tortured sentence of Tuesday’s 6-1 opinion, and it was impossible not to draw comparisons with the moral and legal clarity of the court’s ruling last year that the state Constitution guaranteed gays and lesbians the right to wed the partner of their choice.

That ruling, also written by Chief Justice Ronald M. George, drew deeply -- in spirit, at least -- on the philosopher Michael Walzer’s insight that the American conception of moral progress consists not in the creation of novel rights but in the extension of those recognized as fundamental to those people to whom they’ve been denied. As such, the earlier decision stood in a distinguished line that includes Griswold vs. Connecticut and Brown vs. Board of Education -- in which courageous judges undertook to synchronize the law with the social conscience of their age.

Tuesday’s ruling stands in the line of moral retreat and expedient retrenchment that includes Dred Scott vs. Sandford, Plessy vs. Ferguson and Korematsu vs. the United States.

Consider this passage from George’s latest majority opinion, asserting -- against all reason -- that Proposition 8 did not entirely repeal or abrogate same-sex couples’ right to privacy and due process or the “constitutional right of same-sex couples to ‘choose one’s life partner and enter with that person into a committed, officially recognized and protected family relationship.’ ” Instead, George wrote, “the measure carves out a narrow and limited exception to these state ‘constitutional rights.’ ”

George went on to argue that Proposition 8 did not abrogate “all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection under the laws.”

In other words, gay and lesbian Californians can board the marital bus but must take seats at the rear.

Moreover, denying an entire class of people the right to marry the partner of their choice is a “narrow exception” to the equal protection clause? And it’s morally permissible to carve out exceptions to constitutional rights for specific groups, as long as it’s done by majority vote?

So, if a majority of Californians voted to “carve out a narrow exception” to California’s right to privacy and applied it only to Jews, would it be constitutionally acceptable? If Native Americans were accorded all the protections of the law by a ballot proposition, except the right to marry a non-Indian, would that be legal?

This is social and moral nonsense.

The court tried Tuesday to cover itself with a fig leaf of decency by allowing the 18,000 existing same-sex marriages to stand. It won’t work. This is a logically and morally incoherent decision that simply will plunge the state into another round of bitterly divisive initiative politics, while adding fuel to the growing sense that all three branches of California’s government have lost the ability to function in the public interest.