What’s So Great About . . .
Last year, after a panel on which we both spoke, a colleague from another law school approached me and asked “so what’s so great about relationship?” To which I – sounding in form, if not substance, mostly like a 7 year old – retorted “well, what’s so great about sex?” One of the many wonderful things about Robin West’s new book is that she implores us to elevate that childish exchange to a higher level.
By not having those richer discussions about what is good and bad about relationship, particularly marriage, and what is good and bad about sex, particularly consensual sex, progressives have failed to produce bodies of thought that could be immensely important to causes they care about. I would like to provide a bit more real world support for West’s arguments. My first example, which I’ll discuss today, implicates West’s discussion of natural law, and comes from Perry v. Scharzenegger, the federal case challenging the California’s Proposition8 (which dismantled the California Supreme Court’s determination that same sex couples had the right to marry in California). My second example, which I’ll discuss tomorrow, implicates West’s discussion of legal positivism and comes from the DOMA challenges percolating in the federal Courts of Appeals. Later, I will also suggest that the failure of academic elites to defend the institution of marriage is ironic at best and maybe hypocritical at worst. It leaves the less elite who often want marriage as much as elites do, without allies or arguments to help them secure it.
As for the what’s so great about sex question, which I will also talk about later in the week, I think there is an unnecessary chasm between those on the (far) right and those on the (far) left who think about the question. If, in any given locale, you lined up all the people who agree with EITHER John Finnis OR Janet Halley, your line would likely not extend around the block. (Though it would make an interesting cocktail party.) Why is no one in the middle writing about what is so great about sex? Justice Kennedy, among others, needs us.
Turning first to the what’s so great about relationship question, Judge Vaughn Walker, in his opinion striking down Proposition 8 in Perry laboriously analyzed the subject of marriage. One might think this a positive development, but the opinion reads strangely like an antitrust epistle. Judge Walker develops 80 findings of fact, including, most oddly, a finding of fact about what marriage is. Judicial findings of fact on what marriage is strike me as akin to findings of fact on what race is or what love is. Ask yourself, if you were a judge, would you feel comfortable defining race or love as a matter of fact? Race and love are not legal statuses so perhaps they are in a different category than marriage. But Walker did not and could not rely on marriage’s legal meaning because the legal definition of marriage was precisely what was contested. He needed to articulate what marriage was apart from law. He found, as fact, that “Marriage is the state recognition and approval of a couples’ choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” (Finding of Fact #34). As a legal matter, none of that is true. There is no legal requirement that spouses live with each other or stay committed (whatever that means) or share their property (unless they divorce).. What Walker is finding, as fact, is the collective social understanding, the non-legal meaning of what marriage is. He is doing what the natural law scholars do when they write about marriage: Explaining its existence and its virtues outside of, and at times in spite of, its legal definition. Judge Walker needed to do what West says we law professors should be doing much more of, but he had to do it mostly without us.
Walker’s one cite for Finding of Fact #34 (quoted in total above) is to historian Nancy Cott’s affidavit, filed on behalf of the plaintiffs. Taking nothing away from Nancy Cott, for whom I have tremendous respect and with whom I am quite sure I agree, one can see why the other side in this case could feel a bit outraged. How come Nancy Cott gets to define the meaning of marriage? The defendant’s witness, David Blankenhorn, who suggested that the meaning of marriage necessarily included a man/woman relationship, was dismissed as less credible than Cott because his work was not peer reviewed or as intellectually rigorous. Opinion at 948-49. The Harvard historian gets to define the non-legal aspects of marriage because she is more equipped to do so than the person without the academic pedigree, despite the fact that his understanding of marriage as gendered was shared not only by the majority of people in the country, but by the 52% of the people who voted for Proposition 8. Don’t we need a few more opinions, a bit more theory, some moral discourse on this subject before we say anything at all? Should the meaning of marriage really be reduced to a showdown between Nancy Cott and David Blankenhorn?
The 9th Circuit decided the appeal in Perry on grounds completely different than those that formed the basis of Walker’s opinion. They found that Proposition 8 violated the anti-animus principle found in Romer v.Evans. What Perry had not been a case challenging Proposition 8, but had been what plaintiffs’ counsel apparently wanted it to be, a straight claim that there is a federal constitutional right to same-sex marriage? Then the 9th Circuit would not have been free to do its neat, limited, highly-unlikely-to-be-precedential Romer analysis. It would have had to accept Walker’s odd articulation of facts or what . . . find them clearly erroneous? I don’t know many people who disagree with Finding of Fact #34. Indeed, I doubt David Blankenhorn disagrees with Finding of Fact #34. It is just laughably incomplete.
To be fair, Judge Walker had a very hard job. It is extremely difficult to talk about a right to marriage without a definition of marriage and the legal definition won’t do. Equality doctrine does not necessarily help avoid the definitional problem because if marriage is an inherently gendered institution, as Blankenhorn, the law, much history and a good deal of contemporary reality suggest, then it not clear that same sex couples would have an equality right to it. As I have argued elsewhere, while legally mandated marital gender roles died decades ago, marriage is still a deeply gendered institution: It facilitates, produces and reinforces gender roles. Many peer-reviewed acaedmics have documented that fact. Marriage is, in sociologist Sarah Berk’s phrase, “a gender factory.” Most heterosexual couples’ daily lives conform much more closely to traditional gender roles once they get married (and especially once they have children). Walker needed an understanding of marriage as not what the law said it was (male/female) and not as it appears to operate in most heterosexual people’s lives, as an institution that fosters gender performance, but as an ideal apart from law and fact.
The plaintiffs provided some sense of that ideal with Nancy Cott’s affidavit , but they provided little else. In part, that may have been bad lawyering, but it also may reflect the paucity of contemporary scholarship on why and how the law should support marriage as an institution. How can there be, why should there be such thing as genderless marriage when marriage always has been and still is usually so gendered? Some of us have tried to provide an explication and defense of legal marriage, including an explanation of why it should include same sex same sex couples, but it is far easier to find the blistering critiques of the institution. If Judge Walker, or plaintiffs’ counsel, could have easily accessed a rich normative defense of what marriage is and why it is good and why the state should support it for couples of any gender, if we, as legal scholars had done what West implores us to do in Part I of her book, then the 9th Circuit might not have had to do its neat little Romer move. And maybe there would be a federal Circuit Court of Appeals endorsing same sex marriage.