Friday, June 26, 2015

Obergefell v. Hodges in Gaming Terms

Since this blog focuses on GLBT gaming issues, it's probably a good idea to note larger GLBT issues.  And today the big issue is the Supreme Court's decision in Obergefell v. Hodges.  I have mixed feelings about the ruling, so this is a really difficult post to write.  Obviously, as a homosexual I am incredibly pleased with the result.  Gay marriage is a huge win for the GLBT community and I couldn't be happier that we won.  But, from a legal perspective, I think that the case was wrongly decided.  Most people that want to talk about dissents in today's ruling will focus on the perennially snarky Justice Scalia.  And he did live up to his reputation, saying that the Justice in the majority "see what lesser legal minds--minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly--could not" and "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."  But, more so than even the majority opinion, I believe that Chief Justice Roberts' dissent captures the correct constitutional analysis.
If you are among the many Americans--of whatever sexual orientation--who favor expanding same-sex marriage, by all means celebrate today's decision.  Celebrate the achievement of a desired goal.  Celebrate the opportunity for a new expression of commitment to a partner.  Celebrate the availability of new benefits.  but do not celebrate the Constitution.  It had nothing to do with it.                                                                                                                                                       - Chief Justice John Roberts
A Bunch of Legal Gobbledeegook Probably Not Interesting to Non-Legal Types
Like Lawrence and Windsor, Justice Kennedy authored the majority opinion in Obergefell.  And, like both of those decisions, Kennedy places a lot of emphasis on dignity as a driving factor.  14th Amendment challenges and decisions generally come in three types: due process, equal protection, and substantive due process.  Due process means that the laws cannot be arbitrary and that there is space to review them.  Basically, everyone gets their day in court.  Equal protection means that the laws have to be applied to everyone the same way.  Of course, most laws make distinctions between groups of people (prisoners cannot own guns, for example).  But the usual standard for making distinctions based on sexual orientation is rational basis meaning that as long as there was any rational basis for the law and it was not motivated solely to punish the class of people targeted, it stands.

Finally, there is substantive due process, which, despite what the opinion says claims, is the real meat of the holding.  Substantive due process is actually a really simple idea.  Many of our rights are explicitly enumerated in the Constitution and those are easier to deal with.  But, there are some rights that aren't but are so fundamental to the ordered function of society that we cannot function as a society without them.  Marriage is one of those rights.  The right to send your children to the school of your choice is another.  To be eligible for substantive due process protection, the rights have to be fundamental, well-recognized, and essential to the functioning of a liberal society.  Ultimately, Justice Kennedy found that even as marriage is a protected fundamental right, the right to choose who you entered into a marriage with is also fundamental.

It seems like a good decision and the opinion reads really well.  But, substantive due process is one of the most hated legal doctrines out there.  And it is, as the Chief Justice rightly noted, rightfully reviled.  Today we generally think of those that hate judicial activism (generally code for using substantive due process) as being on the right.  But, the most reviled substantive due process case (and arguably the most reviled U.S. Supreme Court opinion) struck down a maximum hours law passed by the state of New York to protect bakery workers' health.  It was called Lochner v. New York and in legal circles it's as radioactive as The Dread Scot Case (black people can never be citizens of the U.S.) or Plessy v. Ferguson (separate but equal is okay).  Dread Scot and Plessy are reviled for their outcomes, Lochner is reviled for its methods AND its outcome.  In Lochner, the Supreme Court basically just said, "This law is dumb.  We don't like it and therefore it must not have a rational basis.  So, we'll overturn it."

When you pull off all of the gloss, that's basically what happened today in Obergefell.  Do we have a long-standing history of extending the right to marriage to same-sex couples?  No.  Is there a rational basis for treating same-sex couples differently than opposite sex couples in extending marital benefits?  Arguably yes, which means deference to the legislature is appropriate.  Now mind you, Justice Kennedy's result is fine.  I'm thrilled that I will be able to get married in any state I choose.  But, if we're going to make changes to the country's basic playbook based solely on the whims of Justice Kennedy, let's just cast him a crown and be done with it.  Chief Justice Roberts has the right of it.

U.S. Constitution = Rulebook
To explain why I find Roberts' position so compelling, let's use an analogy.  And, because this is a blog about gaming, that analogy will be to playing a roleplaying game.  For the vast sweep of American history, the U.S. Constitution has functioned not as law itself, but as meta-law.  Unlike most State constitutions, there's very little actual legislation in the U.S. Constitution.  Rather, it's full of rules about how we govern ourselves.  The Constitution is silent on what the appropriate level of welfare payments is or what city America should recognize as the capital of Israel.  But, it speaks very clearly about how the United States government should resolve those questions.  Appropriate welfare payment levels are determined through legislation, which requires the concurrence of both houses of Congress and either the President's signature or a congressional override of a presidential veto.  Because the Constitution vests foreign policy in the President's hands, the President gets to decide whether or not Jerusalem is the capital of Israel (at least in the eyes of the United States).

In gaming terms, the U.S. Constitution is like the an RPG rulebook.  The rulebook contains all of the mechanics necessary for resolving actions at the table.  It also contains rules that deal with optional situations.  For instance, the rulebook might give mechanics for dealing with avalanches.  The rulebook doesn't say that your adventure has to have an avalanche in it.  But, if you do have an avalanche, you adjudicate its effects using the system on page X.  Similarly, it has options for dealing with player choice--you don't have to take a particular feat, but if you do it must be implemented in a specific way.

Of course, one of the core ideas in RPGs is that if the rules don't work, the GM can (and should!) throw them out.  We don't do that with the U.S. Constitution, but this does bring up an interesting next step in the analogy...  Of course, sometimes the rules do need refining and we have legislators (or game designers, if you will) for that.  Additionally, if enough fans want to change something in the game, it likely gets changed, much like adopting a Constitutional amendment.

Supreme Court = GM
Then we get to everybody in the country: the PCs.  The PCs are going to interact with, well, everything.  And sometimes the rules are going to conflict.  Sometimes the subsystem that the designers adopted in Splat Book B are going to conflict with the ones adopted in Splat Book A.  Sometimes, portions of the core rules themselves will come into conflict.  For instance, we have a strong constitutional principle that the federal government has a paramount role in interstate commerce.  But, the 21st Amendment provides that, as part of relegalizing alcohol sales in the US, States have inordinate control over regulating alcohol within their borders.  What does that mean for direct shipments from wineries in one state to consumers in another state?  (This was a real case.)  It's not that different than resolving areas where the rules in an RPG conflict with each other.  The GM makes a decision.  The GM should be making that decision in concert with everyone else at the table that has a good understanding of the rules, but might not.

(I have some ideas here about expanding this analogy out with things like case law = house rules and that GMs = District courts and games' FAQ/errata processes = Supreme Court, but that would make this post way too long).

Legislative Process = Player Agency
And this is where things get interesting.  Sometimes GM rulings are good interpretations of the rules.  Sometimes they are just GM fiat.  Fiat is necessary to keep the game going sometimes, but it can destroy the fun and immersion that are inherent to enjoying a good RPG.  This is one reason that there are systems out there that have no GM.  The GM that is doing it right aids the game by keeping it moving.  The GM that's doing it wrong robs the players of their agency (in the game sense, not in the legal sense).  In many ways, that's what happened here.

The majority opinion interprets the rules of the game and makes a policy choice that should go to the players.  Is expanding marriage to same-couples a good idea?  (Yes)  Well, that's not what we have judges for.  We have judges to answer a different question: Do the rules of the game as set up require that marriage be expanded to same-sex couples?  This is the distinction between speeding the game along and destroying player agency.  The court was actually looking at two questions in Obergefell.  The first question was whether or not the 14th Amendment required all states to allow same-sex marriages.  The opinion answers this in the affirmative, so it's largely able to gloss over the second question.  That question was "Do states have to recognize same-sex marriages performed in other states even if the recognizing state doesn't allow same-sex marriages itself?"  But, you say, requiring recognition means that effectively the states have to allow same-sex marriage.  And that's true.  But we functioned that way with straight marriage for many years and still do today--there's debate between states about how distantly related someone has to be from you in order to marry them and civilization hasn't crashed.  

But, there's a fine distinction between these two and it's important.  Saying that all states must allow same-sex marriages robs the people of their agency to make decisions through the democratic process.  Requiring recognition would probably have been workable.  But, not requiring recognition could have been solved as well--most likely with legislation and constitutional amendments to allow gay marriage in the states.  Chief Justice Roberts did get one thing right today when he said:
[H]owever heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

Or, in RPG terms, the ruling destroyed the players' agency.