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

[geekosaur]

I'm pretty sure "change them all to civil unions" is intended to mean "shall be considered as marriage by whatever name, minus religious issues". If the law can't actually support that concept then I suspect things get "interesting": I fully expect all of those cases you mentioned and more will be thrown up by the anti-SSM folks as examples of "rights" that will be "lost" if SSM is enacted. Or, quite possibly, be used as a large set of legal issues to be tried in court in order to delay the implementation of SSM.

[mellowtigger]

A good metaphor. Keeping the same programmer frame of mind, what about "aliasing" or "overloading" the marriage function so that it accepts same-gender inputs? There'd be no new code underneath, just a different function call to the same ol' code.

[cipherpunk.livejournal.com]

The argument against civil unions is a non-starter. You can resolve it the same way the first Congress did when it came to establishing a system of common law. What they said was simple: to the extent that existing English Common Law was compatible with the Constitution it would be rigorously upheld, with a rule of lenity applied while the incompatibility bugs were worked out, to the extent possible under the Constitution.

Same applies to civil unions. A civil union will be entitled to all the legal protections and privileges afforded previously to marriages, to the extent those protections and privileges are compatible with the new civil union law. In the event of clear contradictions, the old marriage laws would apply to civil unions until such time as the legislature explicitly clarified the issue, to the extent possible under the state constitution.

[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.))

[avitzur.livejournal.com]

Thank you. That is very helpful.

[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.)

[feyandstrange.livejournal.com]

In case you don't already have this one around, it's always useful to read and point folks to the following:
http://www.gao.gov/archive/1997/og97016.pdf
http://www.gao.gov/new.items/d04353r.pdf

These are an analysis by the General Accounting Office detailing all the ways in which married persons have differing legal status from single ones, beneficially or detrimentally so, issued at the time that the Federal Defense of Marriage Act was signed. The second document is an update circa 1997 including legal changes since that time.

These are *federal* law only, and don't take state(s)law into account, but they are an excellent starting point.

(Also? "Thou shalt not shotgun-debug the Constitution!" for the win.)

[moshez.livejournal.com]

"Please take a look at the bigger picture here; let's not cut off our noses to spite our faces."

That's the mild way of putting it. I've been referring to it in discussions as "the nuclear option". But, then I believe that the nuclear option must always be considered as a viable alternative...

[bunnykitteh.livejournal.com]

Great post, thank you for all your hard work!

[jrtom.livejournal.com]

This is an excellent post; thank you. You've brought up some useful points as to why the 'civil union' approach may not be as robust as one might expect, or hope.

(I do think that the 'shotgun debugging' analogy, while amusing, is not really quite on: 'nuke everything and start over' is much more like attempting to replace the flawed code entirely. But I don't insist on having a discussion about exactly which programming practices are most relevant here. :) )

[songblaze.livejournal.com]

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.

Not...exactly, no. Stare decisis only covers things that have actually been adjudicated. As long as there is no prior decision saying that a civil union does NOT provide immunity, you can use the CA statute to argue that spousal immunity applies. Given the relatively gay-friendly courts in CA, I expect this would have a very solid shot.

The statute actually says that it gives all common law marriage rights to people in domestic partnerships. It's in the first section of the act.

Once there is a decision by the CA Supreme Court, though, THEN their hands are tied.

(a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

Spousal immunity only becomes an issue out of state. I am not sure that replacing domestic partnerships with marriages would actually fix that problem. I mean, theoretically it would, because most states have full faith and credit acts re: marriage. But then, some states are passing laws defining the genders necessary for a marriage; it would create a very thorny problem (that the ACLU would be happy to jump into with both feet, and they do damn good legal work).

(I apologize for pointing you down this track - I hadn't read the statute recently)

[q-pheevr.livejournal.com]

Very cool post.

There's one thing I'm not quite sure about; you say:

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.

It seems to me that, in a jurisdiction where marriage had been replaced entirely by civil unions, a judge could—and, really, should—conclude that civil unions, as the continuation/replacement of marriage, should be entitled to all the same protections that have been accorded to marriages by common law. And even in a system that includes both "marriage" and "civil union," a judge could draw a similar conclusion, although that's harder. In any case, I certainly agree that legalizing same-sex marriage qua marriage is a much more elegant solution, and also a more reliable one, in that it doesn't rely on having a DWIM judiciary.

[joedecker.livejournal.com]

*applause*

[arisrabkin.livejournal.com]

I periodically find myself wondering whether software development has nontrivial lessons for law and public policy. This is an apposite example. I wonder how far it can be pushed.

Question about design for home made contraption

[(Anonymous)]

Keep up the good work!

I'm curious to know how you built you gel electrophoresis chamber, as well as any other useful tips you don't mind sharing.

Jeremy Baker

jellogum@yahoo.com

Learning how to comment

[(Anonymous)]

Hi, my first comment was originally created at the very bottom of the page, just in case you only read the top posts.

Jeremy

oops

[(Anonymous)]

I guess all comments end up here...
Have a nice day.