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March 6, 2008

free speech for the public as a whole

Gay marriage is currently before the California State Supreme Court as a constitutional issue. News coverage of the case has made me think that there might be three ways of addressing the issue:

1. Allow state legislatures (or voters in referenda) to deny to gay couples all the traditional rights of marriage. I believe that policy is discriminatory and counter to the Fourteenth Amendment's guarantee of "equal protection." I would like to see courts intervene against this policy even if they must defy popular opinion.

2. Require states to offer marriage licenses--by that name--to gay and straight couples. That would be full equality. But it would be deeply unpopular, and it would block public participation and deliberation about an important issue. It would substitute the expert judgment of a few judges for the political process.

3. Require states to offer all the traditional benefits of marriage to gay and straight couples, but allow states to reserve the word "marriage" for heterosexuals. That is not completely and absolutely "equal" treatment. But this third policy has the great advantage of offering a possible compromise. Besides, I'm not keen on courts' dictating what governments must say (as opposed to what they may do).

For one thing, we should avoid abridging the collective speech rights of the people or their legislatures. In my view, not only individual people, but also "the people," should be able to say what they want (even if it's wrong). The remedy to bad public speech is to rebut or criticize the majority's view, not to ask a court to strike it down. One can also simply ignore what the government says by, for example, calling gay people "married" even if the state won't.

Further, I think we should be careful about striking down state language or expression that treats citizens differently, even when the differences are invidious. That opens the door to all kinds of litigation about governmental expression. Do we want courts to decide the content of textbooks in public schools, the meaning of public statues and monuments, or statements made on the job by teachers and police officers? The state can do wrong by speaking offensively, but lawsuits are not the best remedy.

March 6, 2008 10:15 AM | category: none


Interesting post! I've a follow-up here.

March 6, 2008 12:13 PM | Comments (3) | posted by Richard

I haven't been able to work this out exactly, but we have quite a number of religious branches in the country that endorse gay marriage, as well as those that oppose it. If the bulk of marriages take place within religious traditions, is it constitutional for the government to come down on one side of this issue? Somehow the idea that the government can tell many religious denominations that their practice is illegal or won't be recognized is troubling--meddling somewhere it doesn't belong. Not sure this falls within church and state, but it doesn't seem to be the government's place impose these restrictions on this religious practice.

March 7, 2008 10:54 PM | Comments (3) | posted by Doyle

In writing this post, I tried (and then deleted) a sentence about separation of church and state. It's really beyond my competence to say whether the state establishes a religion when it imposes a definition of marriage that's based on traditions and doctrines in certain faiths. I guess I'm inclined to say that the state can call "marriage" anything it wants as long as it doesn't explicitly cite religion as the basis of its definition.

March 8, 2008 7:55 PM | Comments (3) | posted by Peter Levine

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