Summary: Most of the arguments against DOMA and for marriage equality derive, and quite rightly, from the 14th Amendment guarantee of equal protection. Yet, to the extent that laws and policies intended to prevent queerfolk from marrying impose upon queerfolk a badge and incident of slavery, they may also fall afoul not only of the 13th amendment, but also of the Congressional intent underlying the amendment of eradicating badges and incidents of slavery.
By: Paul S. Marchand
Many of the arguments advanced to support marriage equality and to justify striking down DOMA derive quite rightly from the Equal Protection guarantee contained in the Fourteenth Amendment to the United States Constitution.
Perhaps overlooked in the sound and the fury has been the question of whether a sustainable argument in favor of marriage equality can be advanced under the Thirteenth Amendment as well.
Invoking the Thirteenth may seem counterintuitive, even perverse. After all, the Thirteenth Amendment abolished slavery, and, on its face, appears to have nothing to do with equal protection or the right to marry.
Nonetheless, the concept of the right to marry --- and particularly of the constitutionality of the so-called Defense of Marriage Act --- may be more bound up in the 13th amendment than is immediately obvious. Section 2 of the Thirteenth Amendment confides to Congress the power to enforce the amendment by “appropriate legislation.” Moreover, it is well settled that part of the remedial intent of the Thirteenth Amendment is to do away with so-called badges and incidents of slavery.
Here is where the Thirteenth Amendment becomes relevant to the issue of marriage equality. In the antebellum South, marriages of slaves were not considered valid. Slaves might go through a form of marriage ceremony, but the contingent and transitory nature of such weddings was well expressed in the alteration of the vow to have and to hold “until death us do part.” The modified vow expressed in slave weddings contained the significant additional words “or distance.” Thus, a slave couple plighting to one another their troth did so “until death or distance” did them part.
As I have noted before, a government law or policy that categorically denies to me the right to marry if my intended spouse is not of the gender the government has decreed, to some degree reduces me to the status of slave; if I were to plight my troth to another man, United States law would deny both the validity and the existence of my marriage.
Consequently, to the extent that my state and my country see fit to deny me the faculty and freedom of marital contract, they have imposed upon me a badge and incident of slavery, contrary to Congress’s intent in enacting the Thirteenth Amendment. Moreover, to the extent existing law creates a patchwork of jurisdictions where an LGBT couple can be married in one state, but possess no juridical relationship worthy of the name in a neighboring state, another badge and incident of slavery has been implicated.
Prior to the Civil War, American states enacted a crazy quilt of often inconsistent, even contradictory, laws relating to the status of free persons of color. Some states acknowledged the free personhood of people of color, other states denied it. An African-American traveling from New Orleans to Boston would have to navigate that journey carefully, avoiding jurisdictions in which the law denied his free black status and considered him nothing more than a legitimate target for capture and re-enslavement.
Today, married queerfolk find themselves confronting similar geographical challenges: married here, mere strangers there. For a citizen to be unable to rely upon a uniform civil state (single, married, or divorced) throughout the country reflects an antebellum “badge and incident of slavery” reality. To the extent that DOMA helps to establish and entrench such a reality, it enforces upon queer couples the kind of uncertainty the Thirteenth Amendment was designed, at least in part, to overcome, as well as enforcing upon queer couples a kind of second-class status which the Congressional framers of the Thirteenth Amendment plainly intended to eradicate.
-xxx-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served eight years as a member of the city Council. The views contained herein are his own, and are not intended as, and should not be construed as, legal advice.
Wednesday, March 27, 2013
Tuesday, March 26, 2013
MARRIAGE EQUALITY: WILL THE SUPREME COURT TACKLE THE MERITS OR DECIDE THE CASE ON THE SO-CALLED TECHNICALITY OF STANDING, DECIDING NOT TO DECIDE?
Summary: Americans confide our most transfixing issues to the courts, as we have done with the question of marriage equality. At issue in today’s arguments in Hollingsworth v. Perry is nothing less than the question of whether queerfolk have the right to be first-class citizens in their own country. To the extent we cannot now marry, we are shackled with badges and incidents of slavery. Nonetheless, the court may shy away from a merits-based decision, and may simply let Prop 8 fall because its proponents lack standing. It does so, queer wedding bells may soon begin to ring in the Golden State. Of course, if queerfolk are allowed to marry, the radical right will have a fit before turning industriously to the usual “impeach Earl Warren” fund-raising appeals that are its stock in trade. The right will also try to analogize marriage quality to abortion, but it will fail.
By: Paul S. Marchand
In his seminal work, Democracy in America, French aristocrat Alexis de Tocqueville noted that many of the great and transfixing issues Europeans might be tempted to fight out at the barricades were, in America, litigated in the law courts.
Today, all of America has paid rapt attention to legal arguments being presented in the hushed, excruciatingly dignified courtroom of the Supreme Court of the United States in the case of Hollingsworth v. Perry. At issue, very simply is the transfixing question of same-gender marriage. Is it constitutional to prohibit Ruth and Naomi, or Jonathan and David from being able to marry one another as can Adam and Eve? A government that forbids me from marrying the man of my choice has in some measure reduced me to the status of a slave, shackling me with its badges and incidents.
Will the Court render a decision on the merits? Or will the brethren follow a more European, more French path and decide not to decide?
My queer heart would like to see a merits-based decision, in which the Court holds broadly that excluding queerfolk from full, first-class citizenship in the commonwealth is not constitutionally sustainable, and that we must have the freedom to marry, notwithstanding the denominational religious discomforts of any other individual or group within the American body politic. My queer heart would like to see a decision that, to all intents and purposes, enshrines in our jurisprudence the proposition that no one’s civil rights are to be infringed, abridged, or denied, solely to assuage anybody else’s religious discomfort, or on the basis of an appeal to Scripture, mythology, or patriarchal male privilege.
Yet, my queer heart and my lawyer’s head are not at one on this matter. Like at least two justices of the Court, I am concerned that the proponents of Proposition 8 may lack standing to argue the measure’s constitutionality. When two successive governors of California, Arnold Schwarzenegger and Jerry Brown, together with two successive Attorneys General, Jerry Brown and Kamala Harris, declined to waste taxpayer money and resources defending Proposition 8, a whole series of officiously intermeddling grandstanders inserted themselves into the litigation to defend Proposition 8, starting with the Deputy County Clerk of Imperial County, who should have been fired immediately by her boss for her reckless expenditure of taxpayer dollars.
Indeed, the name of the petitioner in the very title of the Hollingsworth v. Perry matter is that of sometime Republican state Senator Dennis Hollingsworth, who now finds himself at a loss to identify to a skeptical Court just what interest or standing he has to appoint himself -or, perhaps, anoint himself- as the Great Defender of so-called traditional marriage. At all events, Hollingsworth comes across as just another ambitious termed out politician looking to set the table for a future political run.
The Court may find itself reluctant to succumb to the lascivious oglings of such oily politicians as Dennis Hollingsworth. If the quondam Senator cannot articulate a distinct, palpable, and personalized injury to himself arising from the Ninth Circuit’s holding that Proposition 8 is unconstitutional, the justices may well use Hollingsworth’s lack of standing to make an almost classically French decision not to decide.
Already, there is some distinct buzz within the legal community and among Supreme Court watchers that the Court, particularly swing Justice Anthony Kennedy, may be looking for a way to avoid reaching a decision on the substantive merits of the case. A decision to uphold the Ninth Circuit on the grounds that the proponents of Proposition 8 lack standing would neatly fit within the Court’s stated prudential reluctance to decide constitutional issues, and would make same-gender marriage legal again, but only in California. Or, the Court could impose a more radical solution, and could simply DIG Hollingsworth’s petition, that is, dismiss it as “improvidently granted.”
Of course, any decision by the Court not to decide will disappoint partisans on both sides of the issue for supporters of marriage equality, a DIG or a “no standing” decision will leave the issue of marriage equality yet undecided in an uncertain future. For opponents of marriage equality --- and by extension, of the queer nation --- a decision that does not squarely uphold Proposition 8 and smack down all us uppity queerfolk wanting to get themselves hitched would be seen as a shameful withdrawal from godly principle.
Of course, if the Court were to strike down Proposition 8 on the merits and declare that queer couples have the right to marry, anti-LGBT forces will have a conniption, before going off to their right wing lobbying groups and think tanks on K Street and making a queer lemon into lemonade by turning their opposition to a pro-marriage equality opinion into a fund-raising vehicle by which they fleece new funds from their fearful flocks.
No doubt, were the Court to rule for marriage equality, the radical religious right would immediately attempt to frame Hollingsworth v. Perry as “the Roe v. Wade of our generation.” Yet, such an analogy to Roe may be inapt. While marriage equality represents the sum of all of the radical religious right’s fears, it was far easier to sell to a broad middle, deeply conflicted about abortion and reproductive choice, the idea that Roe v. Wade stood for the proposition that evil woman and their evil doctors were “destroying innocent human life” heartlessly ripping "pre-born" babies from their mothers’ wombs.
As awful to the right as the prospect of Ruth and Naomi getting hitched or Jonathan putting a ring on David’s finger may be, public opinion in the United States has come much too far for the radical right to be able to equate two women or two men being civilly wed with abortion. The mechanics of terminating a pregnancy carry a kind of “ick” factor that the mechanics of joining a queer couple together do not. A so-called crusade to end abortion carries more gut appeal than a largely partisan effort to deprive millions of Americans of a fundamental civil right.
For if, as the anti-choice community insists, “abortion stills a human heart,” any wedding, straight or queer, quickens the heart, it brings happiness, however transitory, to the couple, the witnesses, and the guests. Unlike the termination of pregnancy, a wedding --- even a queer wedding --- represents a new beginning.
Even if, as I rather expect, the Court ducks the merits and kicks, as it were, the marital can down the road, and thus upholds a California-specific freedom to marry, marriages may soon begin again in the Golden State, with new queer beginnings for us all.
-XXX-
Paul S. Marchand is an attorney who lives in practices in Cathedral City. Two decades ago, he brought one of the first marriage cases in California. He continued to be amazed by the speed with which the American public has come to embrace both Ruth and Naomi and Jonathan and David’s right to form honest-to-God, legally recognized families. The views herein are his own, and nobody else’s, and are not intended to be, and should not be construed as, legal advice.
By: Paul S. Marchand
In his seminal work, Democracy in America, French aristocrat Alexis de Tocqueville noted that many of the great and transfixing issues Europeans might be tempted to fight out at the barricades were, in America, litigated in the law courts.
Today, all of America has paid rapt attention to legal arguments being presented in the hushed, excruciatingly dignified courtroom of the Supreme Court of the United States in the case of Hollingsworth v. Perry. At issue, very simply is the transfixing question of same-gender marriage. Is it constitutional to prohibit Ruth and Naomi, or Jonathan and David from being able to marry one another as can Adam and Eve? A government that forbids me from marrying the man of my choice has in some measure reduced me to the status of a slave, shackling me with its badges and incidents.
Will the Court render a decision on the merits? Or will the brethren follow a more European, more French path and decide not to decide?
My queer heart would like to see a merits-based decision, in which the Court holds broadly that excluding queerfolk from full, first-class citizenship in the commonwealth is not constitutionally sustainable, and that we must have the freedom to marry, notwithstanding the denominational religious discomforts of any other individual or group within the American body politic. My queer heart would like to see a decision that, to all intents and purposes, enshrines in our jurisprudence the proposition that no one’s civil rights are to be infringed, abridged, or denied, solely to assuage anybody else’s religious discomfort, or on the basis of an appeal to Scripture, mythology, or patriarchal male privilege.
Yet, my queer heart and my lawyer’s head are not at one on this matter. Like at least two justices of the Court, I am concerned that the proponents of Proposition 8 may lack standing to argue the measure’s constitutionality. When two successive governors of California, Arnold Schwarzenegger and Jerry Brown, together with two successive Attorneys General, Jerry Brown and Kamala Harris, declined to waste taxpayer money and resources defending Proposition 8, a whole series of officiously intermeddling grandstanders inserted themselves into the litigation to defend Proposition 8, starting with the Deputy County Clerk of Imperial County, who should have been fired immediately by her boss for her reckless expenditure of taxpayer dollars.
Indeed, the name of the petitioner in the very title of the Hollingsworth v. Perry matter is that of sometime Republican state Senator Dennis Hollingsworth, who now finds himself at a loss to identify to a skeptical Court just what interest or standing he has to appoint himself -or, perhaps, anoint himself- as the Great Defender of so-called traditional marriage. At all events, Hollingsworth comes across as just another ambitious termed out politician looking to set the table for a future political run.
The Court may find itself reluctant to succumb to the lascivious oglings of such oily politicians as Dennis Hollingsworth. If the quondam Senator cannot articulate a distinct, palpable, and personalized injury to himself arising from the Ninth Circuit’s holding that Proposition 8 is unconstitutional, the justices may well use Hollingsworth’s lack of standing to make an almost classically French decision not to decide.
Already, there is some distinct buzz within the legal community and among Supreme Court watchers that the Court, particularly swing Justice Anthony Kennedy, may be looking for a way to avoid reaching a decision on the substantive merits of the case. A decision to uphold the Ninth Circuit on the grounds that the proponents of Proposition 8 lack standing would neatly fit within the Court’s stated prudential reluctance to decide constitutional issues, and would make same-gender marriage legal again, but only in California. Or, the Court could impose a more radical solution, and could simply DIG Hollingsworth’s petition, that is, dismiss it as “improvidently granted.”
Of course, any decision by the Court not to decide will disappoint partisans on both sides of the issue for supporters of marriage equality, a DIG or a “no standing” decision will leave the issue of marriage equality yet undecided in an uncertain future. For opponents of marriage equality --- and by extension, of the queer nation --- a decision that does not squarely uphold Proposition 8 and smack down all us uppity queerfolk wanting to get themselves hitched would be seen as a shameful withdrawal from godly principle.
Of course, if the Court were to strike down Proposition 8 on the merits and declare that queer couples have the right to marry, anti-LGBT forces will have a conniption, before going off to their right wing lobbying groups and think tanks on K Street and making a queer lemon into lemonade by turning their opposition to a pro-marriage equality opinion into a fund-raising vehicle by which they fleece new funds from their fearful flocks.
No doubt, were the Court to rule for marriage equality, the radical religious right would immediately attempt to frame Hollingsworth v. Perry as “the Roe v. Wade of our generation.” Yet, such an analogy to Roe may be inapt. While marriage equality represents the sum of all of the radical religious right’s fears, it was far easier to sell to a broad middle, deeply conflicted about abortion and reproductive choice, the idea that Roe v. Wade stood for the proposition that evil woman and their evil doctors were “destroying innocent human life” heartlessly ripping "pre-born" babies from their mothers’ wombs.
As awful to the right as the prospect of Ruth and Naomi getting hitched or Jonathan putting a ring on David’s finger may be, public opinion in the United States has come much too far for the radical right to be able to equate two women or two men being civilly wed with abortion. The mechanics of terminating a pregnancy carry a kind of “ick” factor that the mechanics of joining a queer couple together do not. A so-called crusade to end abortion carries more gut appeal than a largely partisan effort to deprive millions of Americans of a fundamental civil right.
For if, as the anti-choice community insists, “abortion stills a human heart,” any wedding, straight or queer, quickens the heart, it brings happiness, however transitory, to the couple, the witnesses, and the guests. Unlike the termination of pregnancy, a wedding --- even a queer wedding --- represents a new beginning.
Even if, as I rather expect, the Court ducks the merits and kicks, as it were, the marital can down the road, and thus upholds a California-specific freedom to marry, marriages may soon begin again in the Golden State, with new queer beginnings for us all.
-XXX-
Paul S. Marchand is an attorney who lives in practices in Cathedral City. Two decades ago, he brought one of the first marriage cases in California. He continued to be amazed by the speed with which the American public has come to embrace both Ruth and Naomi and Jonathan and David’s right to form honest-to-God, legally recognized families. The views herein are his own, and nobody else’s, and are not intended to be, and should not be construed as, legal advice.
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