JURIST Guest Columnist Robert Rodes of the University of Notre Dame Law School says that while some legal recognition of same-sex relationships has gained widespread support, creating same-sex marriage rights must be left to the democratic processes…

Perry v. Brown is surely one of the most bizarre decisions that have emerged from the continuing debate over same-sex marriage. It strikes down Proposition 8, the California constitutional amendment defining marriage as an association between one man and one woman. The court did not strike down the amendment because it took away substantive rights from homosexuals, but evidently because it did not do so. California’s domestic partnership laws explicitly give domestic partners the same rights as spouses in each other’s affairs. Accordingly, the court found that arguments based on the superiority of opposite-sex couples as a milieu for raising children were irrelevant. California already gave same-sex couples — domestic partners — the same right to adopt and raise children that opposite-sex couples — husband and wife — have. Under Proposition 8, domestic partners only lack the name of marriage. However, the court stated that the name is significant: “Domestic partnerships lack the social meaning associated with marriage.” The state cannot deprive people of that social meaning without a good reason, and no good reason has been offered.

Proposition 8 has been something of an orphan all its life. It was added to the California Constitution by the initiative process after the California Supreme Court had declared it unconstitutional to exclude same-sex couples from marrying. The proponents of same-sex marriage immediately filed suit in the state courts to declare Proposition 8 invalid as a revision, rather than as an amendment, of the constitution. The California Supreme Court rejected this argument by a split vote, but the justices treated Proposition 8 as a radical change, amendment to the constitution, rather than as a reversal of one of the court’s more recent and innovative decisions. The California Attorney General appeared in the case, arguing that the amendment should be struck down.

Similarly, in the federal case, the people normally in charge of defending state laws against constitutional attack refused to do so. It was left to the originators of the initiative petition to defend their amendment, and it was only after a complicated series of ancillary proceedings that their standing to do so was established. The Ninth Circuit panel, like the California Supreme Court, saw Proposition 8 as innovative: “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all its incidents.”

The lack of any significant difference between the rights of spouses and those of domestic partners weighed very heavily in the court’s reasoning:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.

This reasoning is particularly interesting in that it makes the most common compromise between the proponents and opponents of same-sex marriage less favorable than any other approach to the problem. Domestic partnership seems to be acceptable to most people. It does not have to be seen as a recognition of homosexual relationships; there are many things besides sex that might make people want to enter into domestic partnerships. In England, for instance, two sisters took their government before the European Court of Human Rights for denying them the tax and estate benefits of the equivalent British institution to domestic partnership. If people wish to lead a communal life, there would seem to be no objection to legal arrangements permitting them to do so.

However, attaching the name of marriage to any such relation evokes strong grassroots opposition almost nationwide. Those of us who believe in democracy should be reluctant to attribute that opposition to a mere gratuitous wish to make fellow citizens feel bad because of their sexual orientation. I suggest that what is really involved is a strong intuition that the coming together of a man and a woman gives rise to a relation so different from all other relations as to require calling it by a different name. The difference between men and women is metaphysical, as well as physical, and their coming together is creative, as well as procreative. Dietrich von Hildebrand (1889-1977), a leading exponent of the theology and metaphysics of marriage, put it this way: “Man and woman are two different expressions of human nature.”

It is … important to see that this difference has a specifically complementary character. Man and woman are spiritually oriented toward each other; they are created for each other. First, they have a mission for each other; second, because of their complementary difference, a much closer communion and more ultimate love is possible between them than between persons of the same sex.

I believe it is this metaphysical insight that supports the intuitive opposition to putting the label “marriage” on a relation between persons of the same sex.

But can a state base its laws on a metaphysical insight? In a word, yes. The equality of the races is a metaphysical insight, and all of our civil rights laws are based on it. Furthermore, the laws defining marriage, unlike the civil rights laws, do not coerce anyone. They express the metaphysical stance of the state without compelling anyone to adopt that stance. The main objection to its doing so is that it excludes people from the mainstream, whose metaphysical stance is different from that of the state. The primary answer to this objection, I believe, is that it belongs to the community as a whole to define its mainstream. We have wisely given our courts the task of protecting cultural minorities, people who differ from the mainstream in their beliefs, their practices or their lifestyles, and to shield that protection from the vicissitudes of politics. However, it is the task of the people, not the judiciary, to define the mainstream, and to do so through the democratic, political process. In this process, the people are sometimes wiser than their rulers, or the judges who have assumed their role.

Robert Rodes is a Professor of Law at the University of Notre Dame Law School and has over 50 years of teaching and scholarship experience in the fields of legal ethics and jurisprudence. Rodes teaches and writes in the areas of administrative law, civil procedure, ethics, jurisprudence, law and theology, legal history and welfare legislation.

Suggested citation: Robert Rodes, Proposition 8 and the Metaphysics of Marriage, JURIST – Forum, Feb. 24, 2012, http://jurist.org/forum/2012/02/robert-rodes-proposition-8.php.