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

[espvivisection.livejournal.com]

I brought the debugging issue up to my prof in my sexual orientation/gender identity and the law class last week, and it turns out that it was as simple, in Oregon, as writing in one line at the constitutional level. It was something to the effect of, "Any state law, statute, case, or local ordinance that references marriage will now read to reference marriage and domestic partnerships." Seriously. Here they just wrote in " 'marriage' = 'marriage + domestic partnerships'" somewhere near th beginning of the code (i.e. into the definitions section of the state constitution) and that did it. And since she was one of the attorneys who lobbied it for herself and her partner of like 25 years, I suspect she knew what she was doing.


((Apparently there is a 'secret' cabal of fab attys who meet biweekly in the offices of one of the richy-rich firms in the state where a member is partner to plan their legislative and legal/judicial maneuvering. Oregon actually HAS a gay agenda.))

[espvivisection.livejournal.com]

This is, by no means, intended to imply that I thin anything less than marriage is actually equal. Separate but equal is a sham. But this is what we have in Oregon right now.

[maradydd.livejournal.com]

Reflecting on this a bit later, I realised that there's another reason (apart from the moral argument) that I find the Oregon solution adequate but non-ideal: indirectness is confusing, especially to the layman.

Arguably, this is just one redefinition, but it's a redefinition that effects a global search-and-replace without actually performing the global search-and-replace. It's fairly simple to hold just one of these in mind. But suppose, for the sake of argument, that Oregon does something similar with another class of persons or relationships -- illegal immigrants, some novel form of privileged communication, embryos, clones, AIs, whatever. (It's my hypothetical, I can project a few decades into the future if I feel like it.)

The more substitutions a reader of the law has to hold in mind while reading the law, the more difficult interpreting that law becomes. While I hold great respect and appreciation for the breadth and depth of knowledge that lawyers master in the process of becoming lawyers, I find it regrettable that the law is not more readily accessible to non-lawyers, and in my worldview anything which carries an obscuring effect is Considered Harmful (http://en.wikipedia.org/wiki/Considered_harmful).

In essence, the argument from elegance holds that when faced with the choice between broadening the definition of a class (since these definitions are typically made in just one place) and broadening the effect of a number of statutes by unilaterally adding a class to the set of classes to which those statutes apply, it is preferable to broaden the definition of the class.

[maradydd.livejournal.com]

How does the OR amendment apply to rights and obligations that survive the termination of the relationship? Cf. Lowe v Broward Co (Florida), 766 So2d 1199.

[espvivisection.livejournal.com]

According to ze professor, apparently those rights and obligations survive as well, but you have to live here to dissolve the arraignment -- my guess is this would put the Oregon judiciary in charge of post-disolution responsibilities. Unfortunately, one or the other move -- and goodbye full faith and credit.