Positive Liberty

In Voltaire’s Candide, the protagonist learns that the English use a remarkable disciplinary practice. It goes without saying that the English are the most enlightened people in the world:

…in this country it is found requisite, now and then, to put an admiral to death, in order to encourage the others… Candide was so shocked at what he saw and heard, that he would not set foot on shore, but made a bargain with the Dutch skipper (were he even to rob him like the captain of Surinam) to carry him directly to Venice.

Today, California did likewise: The state’s supreme court invalidated 3,995 marriages–so that marriage will remain sacrosanct. To encourage the permanence of marriage, the state has attacked the very permanence of marriage. Or so it would seem.

You can read more about the decision at The Volokh Conspiracy and How Appealing.

Charitably, I hope that at least some heterosexuals are benefiting from all of this.

Less charitably, I note that the court offered to refund the license fees incurred by the now-unmarried couples. I propose that these couples demand their refunds at once–and contribute the money to The Human Rights Campaign. No doubt the HRC could find better uses for it than could the state of California.

The legal principles behind the ruling are both narrow and impeccable, and maybe I shouldn’t argue with them: Gavin Newsom was engaged in civil disobedience. He knew quite well that there was no clear legal authority for what he did when he married these couples, and he also knew that his chances of winning in court were slim. But civil disobedience is not tyranny. At its most inspired, civil disobedience is a closely-choreographed exercise in democracy itself. Newsom will abide by today’s ruling; no one questions it. Newsom has made his statement, and such was his right. And one day, today’s ruling will be looked at as the one step backward that our constitutional dance requires for every two steps forward.

Mayor Newsom acted out of justice, not out of law, and today’s ruling really only settled the rather simple question of law. The real battle still lies ahead, and the court acknowledged as much when it wrote,

…although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders. In short, the legal question at issue — the scope of the authority entrusted to our public officials — involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being “a government of laws, and not of men” (or women)…

To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California’s statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue.

By the court’s unanimous declaration, marriage was not at issue today.

So why does marriage exist in law? It is because in justice, marriage is superior even to government itself, in much the same way that individuals are superior to states. We are the creators of states; we are the sovereigns. States legitimately exist only to secure our rights; and rights exist to secure the fruits of our plans and efforts.

The intimate relationships that we found are a key part of our plans. Provided that these relationships do not harm our neighbors, the state must never encroach upon them. The state recognition of marriage rights like inheritance, power of attorney, immunity, and custody rights exist because our families are more important than any government ever could be. The state does not so much create marriage rights as it acknowledges them. It steps aside to receive the institution of marriage, coming as it does from the higher power of the individual. And perhaps one day this will be obvious for all marriages, in law as it is in justice.