Thursday, September 9, 2010

Prop 8 ...

The lead counsel for the defense in Perry v. Schwarzenegger spoke today. His speech, followed by intense debate (yes, there are people at BYU Law on all sides of this issue) and discussion with classmates left my head in knots.

Every time I'd attempt an argument in any direction, I'd end up in a circle. And after a crash course in tax break regulation, I'm convinced there's a lot more to this argument than people from either side are letting on and that acknowledging those untalked about incentives (*cough! cough! **FINANCIAL!) would actually simplify the debate enormously. And I also wanted to completely ***overhaul the tax code.

I believe in tolerance. I also believe in morality. But discussion and studies about homosexuality and its impact or lack thereof are irrelevant here because that's not what the case is about. Those things may be what Prop 8 were about and they are certainly what all the buzz and debate and exchange within the marketplace of ideas surrounding the case are about. The actual lawsuit, though, has to focus on legal, not social principles. So it's about whether or not a referendum held to a public vote and then passed by only a slight majority (52.24 percent) of Californian residents does or does not violate Constitutional guarantees. And for law students, legal scholars, and hopefully, for all Americans, that is a very important question to have answered.

I know where I stand on the irrelevant stuff -- morals and tolerance and the balance between the two. But I still haven't decided what I think the Constitutionally-acceptable solution should or will be. Good thing I'm not in charge.

Thoughts? Does someone out there have a better grasp on the Due Process clause and is certain they know how it should be interpreted? Is anyone else as lost as I am? Or does no one want to touch this?

** I am not referring only to proponents of gay marriage here -- financial incentives play into both sides. Nor am I implying the only reason homosexual couples want to be married is because of a tax break. There are certainly important emotional aspects to this issue. I am referring here, however, to the fact that one of the main arguments that current marriage laws are discriminatory is that heterosexual couples who are married are given different tax breaks than heterosexual couples that are not married and that current marriage laws force homosexual couples into the unmarried category.

***(Warning: I ramble here. You may want to just read the main post and move on to the comments if you're not in the mood to make sense of confusion.)
Marriage as an institution has historically been about children. That does not mean that your marriage has to be about children. You may choose to be married and not have children (my husband and I are fully in that category at the moment) and you may choose to have children and not be married. But governments and societies have typically offered incentives (and really, what other form of incentive does the government have other than tax breaks and some sort of government-recognized title distinction) to people who are willing to commit to long-term relationships because it is an effort to reduce the number of children born to single parents.
If the incentive works (or if the incentive creates a culture where marriage is valued), this reduces the percentage of children who will need government assistance to make up for a missing parent and significantly reduces other social ills that have been statistically linked to poverty due to single parenthood. That's good for society as whole. The government recognizes that not all married couples will have children. But they do recognize that the majority of heterosexual people will procreate and they want to encourage as much of that to happen within committed and stable relationships as possible so marriage has traditionally been offered to heterosexual couples.
This line of reasoning is used as by some as an argument against extending marriage to committed homosexual couples: The only reason the government cares at all about heterosexual marriage is because heterosexual marriages usually produce offspring and governments have a valid interest in parental care provided to the children born into their country. If children were not usually a product of heterosexual relationships than the government could care less whether or not the two adults in the relationship wanted formal recognition of their lifelong commitment to each other. Because no homosexual couple will ever spontaneously reproduce, the argument is there is no valid reason for the government to get involved. Homosexual couples may adopt, just as others who are not married may adopt, but other tax credits are offered to parents regardless of marital status and if unmarried people (regardless of sexual orientation) are willing to go to the lengths that it takes to adopt a child, then their families are probably not the kind that threaten societal harmony like lots of children from uncommitted relationships do and so there is no need to offer incentives against it like there is with unmarried couples.
The Supreme Court, in some cases, seems to agree with at least the line of reasoning which leads to this argument because it has repeatedly let the American people know that they can have sex and be committed and spend there lives with whoever they want, but marriage the institution is about children and families, not just about two adults who love each other. That does not mean they won't extend marriage to homosexual couples at some point, because they might. It just means that they say the reason America cares about marriage is because marriage is about kids.
Now how does this all relate to financial incentives and a complete overhaul of the tax code? I follow the purposes and reasoning for tax breaks for married couples to a point. But I also see where it seems completely unfair that when my friend's dad bailed on her mom and asked for a divorce, that her mom now pays more in taxes (because she doesn't get to file jointly with anyone), which actually leaves her with less income to support her daughters just when she needs the extra income the most. It also seems totally bogus to me that I get more of a tax break than my unmarried friends who are dating. How is that fair? And it seems bogus to me that heterosexual couples without kids should get more of a tax break than homosexual couples without kids. But I also think the government should be encouraging marriage because it is good for kids and what other ways can the government do that than offering tax incentives? And can we really afford to offer ALL parents, regardless of marital status, the same huge level of tax breaks? It's not like this money just magically appears if it's not collected. The people who don't qualify end up making up the difference. So now everyone who is childless would be footing a much larger bill. But, on the other hand, then the tax break would be even for all parents regardless of marital status. It's one reason this friend is against gay marriage because the money lost to all the new tax breaks for married homosexual couples will fall largely on unmarried people, a large portion of them single parents. Why should they get a tax break when the whole purpose is to benefit kids and right now unmarried people WITH kids don't even qualify. But don't we want parents to be married, so shouldn't we continue to give tax breaks to married couples because they most likely will have children? Most married people do have children. You could argue that we should only give it to couples who are married with kids if kids are the ones we're trying to help in the first place. But is it fair for one marriage to receive a tax break when another doesn't based on child status? Do we give a tax break for people trying to have children? Or only once they actually have a child? What would would happen if we just overhauled it all and didn't give a married tax incentive? What if, since kids are the ones we are trying to help, we just gave a bigger child credit? Would that somehow be interpreted as government approval of people choosing to have children outside of committed relationships even though that has been shown to be bad for society? Would Prop 8 have even have happened if there was no married tax break? Would as many homosexual couples want to be married if non-marriage wasn't keeping them from equal treatment in the eyes of the law because not even married people were being given the break? The fact I can come up with so many questions and I absolutely loathe talking about tax law is a big sign to me that there needs to be some kind of tax reform. But, again, I won't be the one to do it.


Emma said...

I appreciate your rant, and yes, I did read the whole thing. I agree with you, the whole tax issue is a big mess, but perhaps if the marriage tax break was beneficial enough to give a little boost to those couples who take the first step in creating a stable family by getting married, but small enough to not create such a controversy, and the big tax break came with children? Is that fair? i think so, the purpose of the tax break is to benefit children, without children, no tax break is deserved. But is taxes and the emotional side of marriage the only reason gay couples are pushing for the right to be married? What about insurance implications? Trusts/Wills/Spousal confidentiality laws, etc.? There are a lot of legal benefits to being married other than simply a tax break, right?

Linds said...

I'm glad that you pointed out that this case is primarily a constitutional issue and it has as much to do with money as it does morality.

You raise a lot of good questions, and I have one more. Is a lack of an incentive the same as a disincentive? Or is lack of incentive only considered a disincentive if individuals in all but one category benefit from the incentive?

However this issue is ironed out, I don't put a lot of stock in the idea that a majority of people make marriage decisions based on the tax code (as you point out) - even though such behavior would be considered rational in economic terms. (Sorry, economists. Humans are pretty irrational.)

But there are also other incentives that are not particularly tax related, but definitely hinge on marital status. Those incentives (insurance benefits, Social Security, hospital visitation rights, etc) aren't likely to change unless the categorical distinctions do.

PS - I guess this is a de-lurk comment. I like your blog.

K. Ray Johnson said...

I wouldn't say morals count as irrelevant stuff. Alhtough that might be P.C. Still, the law is a system of morals. For example, the penumbral eminations and the due process clause is a moral standard.

Brooke said...

Emma -- I think that could be very reasonable. I think as a society we should want to encourage marriage even when it doesn't lead to marriage because it promotes other values and morals I think benefit everyone. And because that relationship could lead to children eventually and we want as many children to end up in two-parent homes as possible. And your definitely right on the other benefits homosexual couples are missing out on. Especially in states like Utah and Wyoming. However, and I'm not a California law expert by any means so take this with a grain of salt, my understanding is that California has passed some of the most aggressive and sweeping gay rights reform measures in the country and so, at least as far as Prop 8 goes, the tax break and the social validation of the title of marriage might be the only real substantive benefits homosexual couples are missing out on. I think for the most part they have the same or close-to-the-same confidentiality and legal benefits as heterosexual married couples.

Linds -- Nice to have you de-lurk! I think a lack of incentive would definitely be similar to a disincentive. I'm still working through your second question in my head. Back to those circular traps I worked myself into! Economic theory drives me batty. I think most economists must be heartless theorists with no practical grip on the real world. I do think it's interesting, though, that tax breaks are such a clear sign of what we as a people have told our lawmakers matters to us: i.e. marriage, kids, education, buying a home instead of renting, etc. and that it took this issue for me to realize that.

Ray -- My meaningless morals statement was meant to be slightly ironic, not entirely truthful, but sadly, you're right that many people consider morals un-PC. I hope we continue to base many of our lawmaking decisions (especially criminal statutes regarding crimes committed against children)on morals. Based on your last sentence (and the fact I had to look one of the words up to know what it meant) I've got full confidence those bar results come back in a couple weeks with a pass!

gurrbonzo said...

Sigh. I bet this was a juicy debate to have at the law school, and I too appreciate your rant.

My 2 cents = don't get me started. Anyone who's taken a basic con law class can tell you this:

If marriage is a fundamental right, any government restriction on it should receive strict scrutiny (serve a compelling government interest? narrowly tailored? least restrictive means?). Not sure how a ban on same-sex marriage would pass. The end. Any other part of the issue aside, legally his seems like such a no-brainer to me I can't really have a rational conversation about it.

Brooke said...

Kathleen -- An argument a classmate raised in a follow-up discussion about strict scrutiny: Strict scrutiny can only be applied if homosexuals are determined to be a "discrete and insular minority" which they have not been up to this point. (For non-lawyers "discrete" = physically or otherwise easily recognizable and "insular" = limited political power.) Neither definition fits homosexuals ... homosexuality may still be a minority mindset/behavior to society at large, but legally can we really classify them in the same class as people like African Americans and other racial and ethnic groups that have been historically discriminated against? I would love your thoughts. If homosexuals are not determined to be discrete and insular then Prop 8 will only need to pass the rational basis standard to pass. Do you think Prop 8 fails rational basis as well?

Seriously, so blessed! said...
This comment has been removed by the author.
gurrbonzo said...

Okay, I'm going off memory here, but if I recall correctly, strict scrutiny applies in two circumstances: (1) fundamental right OR (2) suspect class. So if marriage is considered a fundamental right (and it's easy to argue it, liberty, pursuit of happiness, anyone?), any restriction infringing upon it is subject to strict scrutiny and whether same-sex couples are a discrete and insular minority is irrelevant (though yes, I think it's pretty easy to make a case for a history of discrimination).

Anyway. I guess it depends on if you think the government "extends the privilege of marriage" to people or if getting married is something people have a fundamental right to do. I hope and pray that in a free country it's the latter. The debate gives me a headache. I'm just saying that to me, as an admittedly inexperienced lawyer, banning same-sex marriage seems legally indefensible.

And as for if it only needed to pass rational basis...I don't know. On the surface, I don't see how it could. What IS the rational basis? IS there a legitimate government interest served by banning same-sex marriage? I have yet to hear a persuasive argument that there is.