Is Judge Sotomayor's Deck Full of Race Cards?

Just saw an interesting post on SCOTUSblog analyzing all the race-based cases that have come across Judge Sonia Sotomayor's desk. A lot is being made about her claim that a female Latina is a better judge than a white guy. It sounds really inflammatory, probably because it is, quite frankly (imagine if the roles were reversed and she was white male saying that about a female Latina). So Tom Goldstien over at SCOTUSblog took all the cases and analyzed every single one, including unpublished opinions. That's roughly 100 cases, give or take a few. A few things that stand out to me:

1. In the 96 race-based cases documented, Judge Sotomayor's panel rejected a claim of discrimination roughly 78 times. That's an 81% rejection rate. In 10 more cases, Judge Sotomayor joined with the majority in finding some form of discrimination. Of those 10, 9 were unanimous, and several allegedly were procedural victories rather than substantive.

2. In the 75 times in which the majority rejected discrimination cases, Sotomayor only dissented twice. In one case, she even took the side of a white bigot who was distributing racist material.

3. So basically, across a span of about 100 cases, Judge Sotomayor only disagreed with her colleagues a total of 4 times. Only one of those disagreements actually involved whether discrimination had occured.

I know statistics can be easily manipulated to say whatever you want, but this study seems fairly thorough on its face. And besides that, I know people misspeak all the time, and the media is notorious for taking comments out of context or twisting them to make them as sensational as possible. I'm not saying that happened here, I'm just saying perhaps she didn't say what she intended to very clearly. And given her track record, maybe she's not as bad as some people think she is.

Musings on the Prop 8 Ruling: Media Commentary, Defining the Problem, and Where do We Go From Here?

The California Supreme Court upheld a ban on gay marriage today by a 6-1 vote. Or so that's what all (and by "all" I mean every last one) of the media outlets are saying. I understand the need to simplify complex issues like court opinions for the layman, but I can't help but think that telling everyone that California upheld a ban on gay marriage borders more on the misinformation-for-sensationalism's-sake side rather than any attempt to give readers the long and short of things. California did not, in fact, ban homosexual marriage. Gays have been able to get married in California for almost a decade now and nothing that happened today is going to change anything.

I should clarify. Gays can get substantively married in California, they just couldn't refer to their "civil union" as marriage, except for a brief time before Proposition 8. It would be helpful to understand just what the court was faced with in this case. The court faced three issues today. Question 1: Did Proposition 8 constitute a constitutional amendment, or a constitutional revision? Question 2: Is the right to refer to your union by the term "marriage" a right bound up in the fundamental right to marry? Question 3: If Proposition 8 stands, are the gay marriages solemnized in California still legitimate?

You'll notice that the question "is gay marriage in California legitimate?" is not in there anywhere. And so it was today. See, California has been granting civil unions to gays with all the "substantive rights" of a straight couple's marriage. They can adopt, file jointly, inherit, pay child support, get divorced, all that stuff. So, in all reality, yes, a homosexual can get married in California, and nothing that happened today changed that. The only problem that gay rights groups have with this setup is that the California government won't refer to their union as a "marriage," but rather, a "civil union." There was a brief time before Prop 8's passage when California actually could solemnize civil unions as "marriages." That was the whole issue about Proposition 8: the meaning and use of a word. Thanks to Prop 8, the joining of two homosexuals in a marriage-like relationship cannot be termed a "marriage" by the state; rather, it is a "civil union."

The court ultimately ruled that Prop 8 was indeed an amendment rather than a constitutional revision (a question of form rather than content, having nothing to do with the merits of gay marriage itself), then said that, therefore, homosexual unions can't be termed "marriages," but said all those gay couples that married in good faith during that short period of time could term their unions as "marriage."

Basically the court said to the gay community, "Look, you get all the rights of a married couple, but the right to call your union by a certain term isn't the kind of all-important right included in the right to marry that we have to protect. So we'll give you the fundamental rights (which you already have in the civil union setup), and leave the rest to be decided by the ballot."

Leaving the merits of the case or its decision aside, what I like about this is that the Court has finally showed some consciousness of a question that I think lurks at the base of the gay marriage debate, yet nobody talks about. No longer is the pertinent question "Does a fundamental right to marry exist?" but rather, the appropriate inquiry, according to the court, is "Do you have a fundamental right to refer to your union by a particular label?"

I'm glad to see such a subtle shift because I think it gets closer to the core of the problem: what we've lost in all this huffing and puffing about "human rights" and "equality for all" and such is that at the center of it all, we're arguing not about rights, but about the definition and use of a word--who gets to use it and who doesn't. This is one reason why the gay movement is different from the civil rights movement or the suffrage movement. We're not quibbling over substantive rights like the right to vote or drink from the same fountain--we're arguing over the definition and use of a word. Last I checked, nobody had a fundamental right to refer to some aspect of their life in a particular manner. It's not a human right akin to, say, the right to personal autonomy, and it doesn't really have much to do with equality in my mind, either. That's why all this rights talk frustrates me--I think it's an egregious overstatement of a problem, such talk is ignorance and partisanship personified, and the problem doesn't belong in the courts, to boot.

Maybe a metaphor will help clarify my idea of the central issue here. Consider the following:

Let's say I drop out of law school after two years. I have a pretty good knowledge of law, so I decide to start dispensing legal advice to others. Say I'm able to buy a flashy car and a nice suit. So here I am, driving around in my nice suit in my cool car, giving legal advice to people. Maybe I even develop a coke problem. Nice car, nice suit, designer drugs...sounds like I'm a lawyer, right? Except I'm not. And why not? Because I haven't gone through the proper channels to get duly accredited: I haven't graduated, I haven't taken the bar, and I haven't been admitted to practice. Could I call myself a lawyer? Perhaps in some general sense I could, but not formally--it would be a crime to pass myself off as one. I might look like a lawyer, act like a lawyer, and basically resemble a lawyer in every outward way. But unless I jump through the right hoops, I can't in actuality refer to myself as a lawyer because the legal community has a monopoly on the word; unless I do what they tell me to do, I can't expect to call myself a lawyer.

In similar fashion, I think we as a society are slowly coming to realize (or at least we should realize) that marriage as we have traditionally understood it is like becoming a lawyer: marriage is (or, at least, traditionally was) a formal designation with religious prerequisites in the same way requirements exist to formally becoming a lawyer. In both instances, traditionally you have to do certain things, jump through certain hoops, in order to either refer to yourself as a lawyer or have your union termed a "marriage." Consider how religious marriages work. The hoops to jump through are fairly easy:

1. One man

2. One woman

3. A duly-ordained minister

4. An exchange of mutual promises of support, etc.

So if I can check off all those prerequisites, congratulations, I am now "married." Eventually, however, the government began solemnizing marriages as well, due to the pervasiveness of marriage in society, only the churches didn't object so much because, well, hey, you're really just substituting a minister for a county clerk, so what does God care? And besides, all those areligious people out there wanted the same substantive benefits of marriage without the religious rigamarole, only the churches didn't object because nothing these nonbelievers were doing seemed explicitly contradictory to their requirements for marriage. Call it laziness, complacency, whatever you will. That's how it evolved from a religious institution to a religious AND a civil institution.

Now we're in a situation where a more important prerequisite is being challenged--the idea that you can have two people of the same sex marry, something that is diametrically opposed to clear Biblical (or Q'ran-ical...is that even a word?) mandate. Civilly, there's no problem with this: civic institutions cannot and do not operate as exclusive clubs--because of our notion of equal protection, civic institutions cannot discriminate at all on such a basis. But private institutions (like religions or certain professions) can demand that others conform to their mandates--follow the rules and you're in, break the rules and you're out, and we'll discriminate as we please because we're a private organization and we can. Now religions are fighting to keep their institution, while pro-gay groups have legitimate civil arguments to make against them. A fine mess we've gotten ourselves into.

Thus, in the end, we've got a civil institution performing a traditionally private-sphere function, and now the private sphere has decided to do something about it when it may be too late. How does it play out? I don't think the Prop 8 solution is the answer, namely, reserving the word "marriage" for hetero couples and terming homosexual unions as "civil unions." It's an overly parsimonious solution that strips religious marriages of virtually all substantive distinction, so in that sense the religious right has already lost its bid to preserve traditional marriage and is clinging to semantics as if it was substance; on the other hand, this distinction will piss off all the pro-gay groups who want to whine and moan about how they're being denigrated or treated unfairly. Basically, nobody wins. Prop 8 is really just a stopgap measure. I wish it would work but it won't.

One of two things are going to happen:

Scenario One: Gay marriage is completely legalized everywhere. After that, it's only a matter of time before churches are forced to marry gay couples against their wishes because the state granted them the power to solemnize state-recognized marriages in the first place. It would be a violation of equal protection, if gay marriage were legalized, for a church to deny homosexuals the right to marry when the church derives its ability to solemnize marriages from the state, the Free Exercise Clause notwithstanding (at the very least, it would present a problem of epic proportions for the courts in which one fundamental right has to give way to another). So gay marriage is legalized and churches are forced to fall in line, or risk some sort of legislative backlash, such as losing their 501(c)(3) designation or something along those lines. This is the worst-case scenario in my mind.

Scenario Two: The government strips all churches of the right to marry and designates marriage as a purely secular, civil proceeding. Just take the institution of marriage and make it purely civil. If a couple wants to go through additional practices or ceremonies for religious reasons, let them. Couples who want to marry will first have to go to the city and get a certificate that legally makes them a "married" couple. Then they can go on to their churches and temples and do whatever else they see fit to do in the eyes of their God to further solemnize the union. I like this idea better and it's actually already the norm in countries like France. Don't get me wrong, I don't like the idea of the civil sector appropriating a traditionally religious function like that, but it's the lesser of two evils. This way, churches aren't forced to do anything against their will, members can still feel like their marriages are substantively distinct from gay marriages, free exercise is not impeded, and gays can finally get what they want, at least formalistically.

I don't see any other way out of this mess...do you?