There was standing room only at the debate in Caplin Pavilion between Matt McGill of Gibson Dunn and Jordan Lorence of the Alliance Defense Fund. McGill is part of the legal team representing the gay couples seeking the freedom to marry in Perry v. Schwarzenegger, while Lorence helped form the litigation strategy and manages the public relations for the legal team defending Proposition 8. The two men were debating the ongoing legal battle related to California’s Proposition 8, which is an amendment to the state constitution that limits marriage to one man and one woman.
Judge Vaughn Walker held in Perry that Proposition 8 violates the Due Process and Equal Protection Clauses. Citing Turner v. Safely, Walker asserts that the right to marry is a fundamental right protected by the Due Process Clause, and that viewing marriage as a gendered institution is an “artifact of a [different] time.” Walker writes, “Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.” Despite the fact that California’s Registered Domestic Partnerships grant homosexuals the ability to enter into civil unions that bestow the same legal rights as marriage, the “symbolic disparity between domestic partnership and marriage” violates the Due Process Clause.
McGill approved of Walker’s application of strict scrutiny to Proposition 8, thus requiring that Proposition 8 is narrowly tailored to a compelling government interest. However, McGill asserted that Proposition 8 would fail even on the less burdensome rational basis test. Tradition alone, according to McGill, may not serve as a rational basis. Neither, according to McGill, may morality, in light of decision like Lawrence v. Texas.
McGill also discounted the “responsible procreation” argument on the ground that there is no social science whatsoever that suggests children of gay parents are any worse off than children with a mother and father. In response, Lorence said that he is “not an expert on social science,” without pointing to any peer-reviewed study. Furthermore, McGill contended that even if the basis for Proposition 8 was to promote responsible procreation, the law should not allow infertile couples to marry. The law does no such thing. Indeed, Justice Scalia, in Lawrence discounts the responsible procreation argument as a potential rational basis. Scalia dissents, “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’[?] Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.” Nevertheless, Lorence, unable to point to specific social science data supporting his contention that children are better off with married parents of opposite sexes, stuck to his guns regarding procreation as the underlying reason and basis for marriage.
In fairness to Lorence, his larger argument was that the legislature is the proper realm for social science-type discussions, and that the courts should defer to states with regard to restrictions related to sex and marriage. Indeed, he lamented that Judge Walker’s trial seemed more like a legislative hearing than a courtroom. He also asserted that given the traditional understanding of marriage, overruling Proposition 8 does not represent the extension of a legal right to homosexuals, rather, the creation of a new right. This is because gender does matter to marriage, if it is understood to flow from its procreative purposes.
Lorence did point to the universal- in time and space- traditional treatment of marriage as being limited to persons of opposite sex. McGill countered that discrimination, even if grounded in tradition, are “antithetical to our constitutional values.” It is hard to imagine, McGill pointed out, how the majority’s assertion in Lawrence v. Texas, that moral disapproval (even if traditionally held) cannot be the basis of state restrictions on sex and marriage, does not devastate the prospects of upholding Proposition 8. If Lawrence, and other cases that have rejected morality as providing a rational basis for restrictions on sex and marriage, holds, Proposition 8 cannot stand, according to McGill.
Two very different approaches to constitutional interpretation seem to underlie McGill and Lorence’s arguments. Gay marriage is an issue that sparks strong differences of opinion between rational people of goodwill. The debate seemed to reinforce that notion.