Shotgun Debugging, Constitutional Law, and the Argument from Elegance

[maradydd]

As some of you know, I have a rather lengthy post in the works about the history of challenges to initiative amendments in California -- that is, constitutional amendments which are proposed by a petition of the people and decided by popular vote. It's 1500 words and counting, and will probably hit 3000 by the time it's done, but I wanted to make sure that folks who want to understand the precedents coming into play with Strauss v. Horton, the ACLU's challenge to Prop 8, have a good resource for that. However, the following came up on theinated's journal, deep in a comment thread, and I think it's important enough to bring up here.

But first I'm going to talk about software engineering. I promise, it's relevant.

In the code-slinging trade, there's a concept called "shotgun debugging" which makes every seasoned engineer foam at the mouth. The Jargon File defines it as "the making of relatively undirected changes to software in the hope that a bug will be perturbed out of existence". "Relatively" is loosely applied here; typically the code you tweak has something to do with the problem -- if the problem is in your user interface, twiddling with interprocess communication usually isn't going to help -- but you're not sure where the exact problem is, so you poke at a bunch of different places and pray you got it right.

Don't do this. It's practically guaranteed that you will make things worse, most likely by creating new bugs that are subtler, more obscure, and will bite you in the ass for years to come. But keep the concept of shotgun debugging in mind, because we're going to talk about it again shortly.

Elsewhere, lather2002 wrote:

There are ways for same sex couples to have rights that allow them basically the same rights as "Married Couples".

In principle, lather2002 is correct. However, the institution of marriage is deeply embedded in the principles of English common law upon which our legal system is founded, and altering those principles to cover civil unions would involve a massive rewriting of the law which amounts to shotgun debugging of the very worst sort.

Looking only at statutes, we can easily find dozens of areas in which marriage plays a role: tax law, estate/inheritance law, family law, laws having to do with visitation rights (both for hospital patients and for prisoners), property law, insurance law, torts (e.g., wrongful death suits), and so on. Attempting to shotgun-debug the California code in an attempt to create parity between marriages and domestic partnerships is a fool's errand; there are just too many places where marriage is closely intertwined with statutory law to be able to do the job right. California tried to do it all in one go by providing that domestic partners are to have all the rights and responsibilities afforded to married partners, but the very bill that established this also carved out several exceptions. Establishing a domestic partnership requires different prerequisites -- among other things, the couple must live together before becoming domestic partners, which isn't required for marriage -- and it isn't possible to have a confidential domestic partnership (i.e., one that isn't a matter of public record), while it is possible to have a confidential marriage.

However, the matter gets fuzzier. In some situations, the principles of common law protect the institution of marriage in a way that isn't actually codified anywhere. A good example is the notion of privileged communication. There are certain types of communication, such as that between a lawyer and her client, a doctor and his patient, a priest and a penitent confessing to him, which are "privileged" in the sense that neither party can be compelled to disclose the contents of that communication. If a defendant admits to his lawyer that he committed the crime with which he is charged, the lawyer cannot be compelled to disclose this to a third party. Spouse-to-spouse communication is protected in exactly the same way: one spouse cannot be compelled to give evidence against the other (also known as "spousal immunity"), and in fact one spouse can prevent the other from disclosing information which was communicated privately between the two of them (also known as "marital privilege").

For what it's worth, the matter of privileged communication has a lot to do with why the right to marriage is viewed as derivative of the right to privacy -- which is expressly protected (in fact, it's inalienable) under CA constitutional law.

Some states have passed statutes which restrict privileged communication in some form; for instance, Washington state has made attorney-client privilege a one-way street from client to attorney (the client can be compelled to testify against the attorney on matters of communication that don't have to do with the client's communications). California has codified attorney-client privilege the opposite way, protecting all attorney-client communication regardless of subject, but that merely reinforces the common-law definition; it does not expand it. I can't find an example of a law which creates a new class of privileged communication. Expanding privileged communication to domestic partnerships is thus quite difficult, and privileged communication isn't the only area of common law where marriage comes into play.

Shotgun-debugging a body of statutory law is hard enough; how do you shotgun-debug hundreds of years of tradition? Under the principle of stare decisis (literally "to stand by and adhere to decisions"), which obligates judges to follow the precedents established in previous case law, you can't. Only marriage is marriage, and there is no precedent for "domestic partnership immunity"; in this respect, the court's hands are tied. Even if statutory law mandates equal treatment before the law for domestic partners, the court cannot magically create privilege where none exists. There can be no parity between marriages and domestic partnerships.

I'm going to turn back to the Jargon File, now, to address the topic of elegance: "Combining simplicity, power, and a certain ineffable grace of design." Software engineers love elegant code: it's easier to understand, easier to work with, and it's aesthetically pleasing. Linguists adhere to the principle of elegance, too: given two sets of rules which describe the exact same grammar equally well, the one with fewer rules is to be preferred, as complicated rules are difficult to apply and lead to errors.

I'm not going to pretend that law adheres to the principle of elegance -- the sheer size of the California constitution, much less the California code, is testament to that -- but in this instance, we would do well to observe it. If we wish to establish parity between same-sex and opposite-sex couples, the simplest, least confusion-causing, most elegant solution is to legalise marriage between both same-sex and opposite-sex partners.

(This is, incidentally, the fundamental flaw I see in the "then let's make everything a civil union" argument. Taking away spousal privilege is a horrible, horrible idea that would remove the protections of hundreds of years' worth of important, rights-preserving court decisions which hinge on spousal immunity or marital privilege. Please take a look at the bigger picture here; let's not cut off our noses to spite our faces.)

Comments

[ilcylic.livejournal.com]

I agree. Stopping infringing the rights of gays to marry is the elegant solution which allows them secular equality.

(I do not require religious institutions to recognize gay marriages, nor perform them, and should the day come when the law attempts to require them to do so, you'll find me perched atop the local church/temple/synagogue with a scoped rifle to keep the hordes at bay, same as if some future administration attempts to remove the protections of law from abortion clinics. But the government should be color/creed/orientation blind.)

[maradydd.livejournal.com]

Right there with you, brother.

[ilcylic.livejournal.com]

No, honestly, there are probably sufficiently few of us we'll each have to stand alone. But I know what you mean, and I appreciate it.

[spider88.livejournal.com]

I agree with this, too. In fact, it irks me when people say that their Church will be "forced" to marry gay folks if it becomes legal. Uh, no, it's your congregation, you can do as you please to join people in matrimony or not. Ain't no business of mine.

[ilcylic.livejournal.com]

There is some precedence, unfortunately.

http://www.lifesitenews.com/ldn/2008/jan/08013004.html

Another article on the situation: (quoted due to sub required)

[ilcylic.livejournal.com]

The state Human Rights Commission ruled this week that an Albuquerque wedding photographer discriminated against her would-be client by refusing to shoot a same-sex commitment ceremony.

Vanessa Willock filed a civil complaint with the labor department's Human Rights Bureau in 2006, saying Elaine Huguenin, co-owner of Albuquerque's Elane Photography, told her in an e-mail that she only photographed "traditional" marriages and would not photograph same-sex ceremonies.

In an order issued Wednesday, a panel of commissioners ruled that Huguenin discriminated against Willock based on sexual orientation and ordered Elane Photography to pay Willock's attorney's fees of $6,637.93.

An attorney for Huguenin promised to appeal in state District Court, contending the commission violated Huguenin's constitutional rights to practice her religion.

Jordan Lorence, senior counsel for the Alliance Defense Fund, said Huguenin declined the job because her and her husband's religious beliefs were in conflict with the ceremony's "message."

Willock, in an e-mailed statement issued through her attorney, said she was pleased with the ruling.

"I feel that it is an important decision towards defining the responsibilities of business when they offer their services to the public in this state," she said.

Lorence said the refusal "stemmed from the couple's evangelical Christian and ideological beliefs, and they didn't want to further a ceremony that defines marriage in a different way, just as Elane Photography would not want to photograph a polygamist wedding," he said. "This couple is free to have any ceremony they want, but they don't have the right to force unwilling people to participate in it."

Lorence represents a conservative religious organization that frequently enters court cases involving same-sex marriage, abortion and school prayer.

Until recently, Willock was an equal employment opportunity specialist with the University of New Mexico's Office of Equal Opportunity.

After considering the evidence, including e-mails, the Human Rights Bureau issued a determination of probable cause in June 2007, allowing the case to go before a panel of three of the state's 11 Human Rights Commissioners, all of whom are appointed by Gov. Bill Richardson.

State law prohibits discrimination based on sex, race, religion and sexual orientation in the areas of employment, housing, credit or public accommodation.

State law does not, however, recognize a marriage between two members of the same sex.

Francie Cordova, the bureau's labor relations director, said the case fell under public accommodation.

Although employment complaints are more common, she said, several public accommodation complaints are filed annually, typically when people feel they have been illegally denied service by a business.

This case was unique, she said, because Willock only sought a discrimination ruling and attorneys' fees. "Normally, the complainant also asks for damages," she said.

Typically, a discrimination investigation takes about six months, Cordova said, but this case was delayed while a federal court considered a request from the defendant that it be removed from the commission's hands.

The court remanded the case to the commission early this year, she said, and hearings began in January.

The case drew considerable attention from right-leaning blogs and publications, like the Washington Times and the National Catholic Register.

Some Internet commentators cited the case as erosion of their religious freedom, while others suggested Huguenin could have handled the situation better to avoid running afoul of anti-discrimination laws.

"Had the photographer ... simply said 'I don't think I would be a good fit for your ceremony,' or even said she had other obligations, that would have been the end of it," New Mexico blogger SJ Reidhead wrote on her blog, thepinkflamingo.blogharbor.com, which she describes as Republican, Christian, pro-immigration and pro-Bush.

Julie Sakura, an attorney for Santa Fe-based law firm Lopez & Sakura who represented Willock, said the case should not be considered precedent-setting. "This is an appropriate application of existing New Mexico law to the facts of this case," she said.

Re: Another article on the situation: (quoted due to sub required)

[spider88.livejournal.com]

Hmm.

I don't know how I feel about this. Personally, I think if a person doesn't want to provide a service to me for any reason, I'll just go find another service provider. I'm not sure how I feel about the legality of it. We do have laws that you can't keep a certain race out of a restaurant or other public place of business, for example.

Re: Another article on the situation: (quoted due to sub required)

[ilcylic.livejournal.com]

Obviously, I hate it. It would piss me off to no end to be required to provide professional services to someone I found morally repugnant. (In my case, the federal government, rather than gays, but the principle remains the same to me.)

And yeah, I'm aware of such laws. I think they are unethical except insofar as they apply to government services. Yes, that means I think it is ethically acceptable to open a restaurant and disallow blacks from dining there, though I feel it's immoral to do so, and would not patronise such an establishment myself. An ugly consequence of defence of private property and freedom of association, unfortunately. Hey, more diners for my "Anyone except bigoted assholes can eat here" cafeteria, no?

Re: Another article on the situation: (quoted due to sub required)

[spider88.livejournal.com]

I also don't see how that sets a precedent for forcing a church or clergyperson to perform or host a ceremony.

Re: Another article on the situation: (quoted due to sub required)

[ilcylic.livejournal.com]

Most clergy are paid for marriage services. Myself included on such occasions as the bride and groom would not take no for an answer. If I'm not allowed to refuse professional services to people for moral reasons, then the parallel seems pretty clear to me.

Re: Another article on the situation: (quoted due to sub required)

[ilcylic.livejournal.com]

Obviously, it may be that when the rubber hits the road, the courts would carve out an exception for clergy to not have to marry "sinners", but that seems to be hoping for the mercy of the courts, rather than being able to rely on any bedrock principle of law.