In further reply to Dave's comments yesterday

If you read the comments to yesterday's post, you'll see that Dave, an Atlanta lawyer, thinks I'm dead wrong about the Perry case. We disagree on whether the U.S. Constitution requires the states to accept homosexual marriages.

I had a long comment this morning to Dave's last comment... and Blogger ate it because it was too long. If I'd been smart, I'd have saved it before trying to publish so I could just post it here. Is that an admission against interest?

Dave and I agree, I think, on more than it may at first blush appear. We disagree on the ultimate issue, of course, but we could both agree (I believe) that the states could get out of the marriage business altogether and simply register domestic partnerships.

I submit that the institution of "marriage" has both religious and civil purposes. There is some overlap although, I think, and for good reason. From the state's standpoint, marriage is important for the formation of stable families and the production of solid citizens for the future. If you think that isn't a valid state interest, think of our inner-city gang problems. In our cities, where illegitimacy is the norm, and babies have babies, young boys turn to gangs for a perverted kind of the structure and discipline that should have been theirs were they born into a two-parent family. Don't tell me about movie stars who can raise kids on their own without getting married. There are exceptions to every rule. (And movie stars can afford nannies and chauffeurs and cooks.... ) There are probably also gang-bangers who come from middle-class, two parent families. But not many. Not many at all.

The state's legitimate interest in promoting stable families (and it's equally legitimate interest in protecting children) can be served by registering domestic partnerships instead of by licensing marriages. This would allow gay couples to be treated equally in the eyes of the law with heterosexual couples. The Church of What's Happening Now can "marry" gay couples if it wants. The Catholic Church (for example) can continue to insist that "marriage" is the union between a man and a woman.

My concern over Perry is that it is a legal tactic designed to end debate, rather than build consensus.

Dave says that asking gays to wait for consensus to form is like asking them to look to only the promise of heaven. He adds:

Too many people don't "do unto others as" they "would have them do unto you." They don't see the minority as their "brother" so as to "love him as yourself." They will never find consensus unless dragged, kicking and screaming.

And, of course, Dave is right when he says that some people are, indeed, Class A Jerks.

But I say consensus does not require unanimity.

Consider the struggle of African-Americans for civil rights. I take the position that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 could not have been passed if a national consensus had formed favoring civil rights for all Americans, regardless of race.

Dave does not quite agree:

Law reflects what people think; but, it can also be normative, forcing people to rub up against each other, where, over time, they find that their fears were unfounded.

We have here something of a chicken and egg question.

I'd agree that racial attitudes have progressed substantially in this country since the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. I doubt very highly that the majority of 'decent folk' who agreed that legally sanctioned racism must be ended could have imagined that 44 years after the first of these laws, our 44th President would be an African-American. Thus, I'd agree with Dave's concept on the normative function of laws -- but only with the caveat that these must be laws adopted pursuant to consensus.

It's not as if the Civil Rights Acts of the 1960s were the first such laws. In the aftermath of the Civil War, Congress passed civil rights laws that were meant to protect the rights of freedmen in the South. And as long as the Union Army remained in place, these laws were enforced.

As soon as Reconstruction ended, though, so did enforcement of the civil rights laws. Jim Crow became the law instead.

Speaking now as a lawyer, I don't care what kind of laws you have on the books -- laws against marijuana, talking on cell phones, gay marriage -- whatever -- unless there is a consensus that the laws are just and fair they will not be enforced. (Unless they are enforced with bayonets.)

So I come back to Perry and say that it's a terrible idea to impose, by judicial fiat, gay marriage on a population that does not accept it.

You want court cases that will help people reach a consensus that accepts gay marriage? How about a suit against a hospital which denies someone's life partner the opportunity to attend the bedside of his dying loved one? How about a challenge to intestacy laws? Find me a case where a gay person has died without a will -- and his or her life partner, who has some compelling special need, is denied anything from the estate in favor of a sibling of the decedent... preferably an estranged sibling who cut off all contact with the deceased because of the deceased's sexual orientation.

Making allowances, always, for Dave's Class A Jerks, I think a lot of people -- most people -- want to be fair and want to do the right thing. But, as in a jury trial, the good lawyer does not tell a jury what it must think, it shows the jurors the case in a way that lets them arrive at the desired conclusion. Get enough of these individual cases and you will see attitudes change. You know, Prop. 8 didn't pass by an overwhelming margin in California in the first place.

I think the place where the law should wind up is with domestic partnerships, with the states removed from deciding what is, or is not, a marriage. But a consensus will form where it will. If, of course, it is permitted to form at all.