Legal Commentary

Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below:

"Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right. Moreover, equality cannot require that the state treat each of us the same, as the state clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, ?treat like cases alike,? is meaningless, he argued, because the important question will always be: which cases are relevantly like which others? And the California Supreme Court unfortunately agrees.

"Yesterday, that court decided that Proposition 8 ? which ?added? text to the California Constitution providing that ?[o]nly marriage between a man and a woman is valid or recognized in California? ? was an amendment to that state?s constitution rather than a revision of it. Because an amendment requires only the process used to pass Prop 8 (a referendum), while a revision would require a constitutional convention, this decision upholds Proposition 8. Prop 8 itself overturned the prior decision of the state?s highest court holding that the California Constitution forbids limiting marriage to opposite-sex couples. The court reached the conclusion that Prop 8 is only an amendment to the constitution by finding that the change it makes is not to constitutional fundamentals. It did this by reading equality as an empty idea.

The court reasoned that gay men and lesbians can afford themselves of the civil union opportunities California provides. In the court?s view, while restricting the designation of ?marriage? to gay couples is not irrelevant, it does not constitute an abandonment of the state?s commitment to equality because this is a fairly limited restriction. Prop 8 is a constitutional amendment because it makes a minor change, merely limiting the designation of ?marriage? to some people while still affording others the actual rights they deserve ? to be able to form families, have meaningful relationships, etc.

"This decision shows Westen?s mistake, as well as what is at stake in how we conceive of the norm of equality. Equality is not an empty idea. It requires that the state treat each of us as equals. Westen is right that equality does not require that the state treat us the same in all circumstances. Nor does the norm of equality tell us what particular rights (other than equality) we each have. If the state wanted to stop granting marriage licenses to anyone, essentially leaving the designation ?marriage? to religious or other private parties to confer, and simply grant civil unions to both straight and gay couples, the right to equality would not be offended. In that sense, no one has a right to ?marriage.? But what equality does demand is that the state must treat us as people of equal worth. This command forbids the state from drawing distinctions among people in a way that is demeaning. Justice Moreno of the California Supreme Court explains in his opinion, concurring in part and dissenting in part, that ?[d]enying same-sex couples the right to call their relationships marriages treats them as ?second-class citizens.?? It is this that equality forbids.

"One cannot help but think of Justice Harlan?s famous dissent in Plessy, ?as all will admit, ? the real meaning of...? the law is ?that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.? Today we might say, ?as all will admit?, the real meaning of Prop 8 is that the relationship between couples of the same sex is not equally valuable as the relationship between opposite sex couples and therefore does not deserve the name of 'marriage.' While this is not exactly the same as branding gays as inferior, Prop 8 surely brands their relationships as inferior, which is awfully close."