by Eric Martin
Score one for civil rights, human decency and a celebration of life and those that live it:
In a major victory for gay rights advocates, a federal judge on Wednesday struck down a California ban on same-sex marriage.
Chief U.S. District Judge Vaughn Walker ruled that the voter-approved ban, known as Proposition 8, violates due process and equal-protection rights under the U.S. Constitution.
"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples," Walker wrote.
The judge added in the conclusion of the 136-page opinion: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."
His ruling came in response to a lawsuit brought by two same-sex couples and the city of San Francisco seeking to invalidate the law as an unlawful infringement on the civil rights of gay men and lesbians. The landmark case is expected to be appealed and could eventually reach the U.S. Supreme Court.
Outside the federal courthouse in San Francisco, a cheer went up among a group of about 70 same-sex marriage supporters carrying small U.S. flags, as a large rainbow-striped flag — the symbol of the gay rights movement — waved overhead.
Good for you Judge Walker (and those that concurred).
One thing I haven’t seen discussed. Assuming either that
1. This decision is appealed to SCOTUS and is upheld, or
2. This decision is upheld by the Circuit but not heard by SCOTUS
what will the effect on other states be?
I cried and laughed all at the same time when it was announced. It makes me think of a passage from Lord of the Rings: “It was a great day and a great hour, whatever may come after.”
I read the opinion, well the good parts. He was clearly unimpressed with the prop 8 proponent’s arguments in every detail.
Also a victory for civic disobedience (not a typo).
It’ll get overturned by SCOTUS. The decision was quite interesting. The judge was rather blistering about the overall incompetence of the plaintiffs.
A shorter version would probably read: “Loving seems to apply directly. I was presented with many legal arguments and testimony that supported this, making a very solid 14th and Equal Protection case. I was presented with absolutely NOTHING against this. I swear, it’s like I had one team of lawyers and then..I dunno, some people shouting random words at me. It was pathetic.”
Mind you, I suspect the judge was inclined to rule in favor of tossing Prop 8 anyways, but he made it pretty clear in there that the plaintiffs gave him NOTHING to work with, at all.
“The judge was rather blistering about the overall incompetence of the plaintiffs.”
Is there a set of arguments one could use to be a competent plaintiff?
Unfortunately, as my law school son constantly reminds me, Justice Roberts assumes the government always has an interest because, well, it’s the government.
The decision was quite interesting. The judge was rather blistering about the overall incompetence of the plaintiffs.
Huh? The gay couples who wanted to marry were the plaintiffs in this case.
It’ll get overturned by SCOTUS.
If the proponents of Prop 8 gave the District Court judge NOTHING to work with, SCOTUS cannot summon new evidence supporting Prop 8 out of the air; they are bound by the administrative record established by the trial court.
… well, they should be, anyway. But I will put nothing past Scalia and Thomas, including making the Prop 8 folks’ case for them.
IANAL but my impression is that, if upheld by the Supremes, the ruling would invalidate every state law or constitutional provision against same-sex marriage.
Of course, someone likely would have to go to court in each state to have the ruling enforced, so in that sense this is like the early civil rights rulings in the 50’s and 60’s. And I’d fully expect massive resistance from at least some states.
Wow, federal marshals escorting same-sex couples into the county clerk’s office?
Morat20: A shorter version would probably read: “Loving seems to apply directly. I was presented with many legal arguments and testimony that supported this, making a very solid 14th and Equal Protection case. I was presented with absolutely NOTHING against this. I swear, it’s like I had one team of lawyers and then..I dunno, some people shouting random words at me. It was pathetic.”
But then – what have supporters of the ban on same-sex marriage got but random words?
As I noted in They’re trying to ‘protect marriage’ with this dreck? nearly two years ago, and today in The Turning of the Tide, all the opponents of gay marriage have is fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope, and nice red uniforms. Actually they don’t have ruthless efficiency and they don’t have nice red uniforms. It would be unexpected if they did.
Great news!
But, just cause I can’t get over this slimy mudhole of a man, thrice married Newt Gingrich, showing that he’s just as disgusting on this issue as he is on Cordoba House:
Judge Walker’s ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife. In every state of the union from California to Maine to Georgia, where the people have had a chance to vote they’ve affirmed that marriage is the union of one man and one woman. Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy. Today’s notorious decision also underscores the importance of the Senate vote tomorrow on the nomination of Elena Kagan to the Supreme Court because judges who oppose the American people are a growing threat to our society.
I’d quote it in context but, that’s the whole thing.
Dear Newt: Go fuck yourself.
It’s assumed by most commentators that this case will end up in the Supreme Court. The Supreme Court consists of 9 Justices, at least some of who claim to be “strict constructionists”, who merely “call balls and strikes” without reference to their personal preferences. In principle, we do not know how the Justices will vote on any particular case. Every one of them, I think, has testified to the Senate Judiciary Committee that they have not “prejudged” any issue.
Well. I am looking for somebody to take the other side of this bet:
Justice Antonin Scalia WILL vote to REVERSE Judge Walker’s ruling.
Stakes: $200K.
Odds: even money.
Any takers?
–TP
Well. I am looking for somebody to take the other side of this bet:
Justice Antonin Scalia WILL vote to REVERSE Judge Walker’s ruling.
It seems he’s pretty much announced where he stands on the issue, so you’re not likely to get any takers.
all the opponents of gay marriage have is fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope, and nice red uniforms.
Make them sit in the comfy chairs!
While the ‘America getting back to being America’ line is dramatic and urgent, and the sentiments I couldn’t agree with more, the sad fact is that America-being-America means that legislated bigotry is the ice cream to the apple pie. For every landmark Supreme Court decision and piece of legislation there has ever been in the advancement of civil rights, there have been five or so douchebag decisions that have swept away such rights, or denied them from ever coming into being with all the jurisprudential gymnastics and rationalizatons you can shake a stick at, courtesy of lifetime-tenured douchebags with nice black robes.
Ugh,
1) Your link is broken, but I got to Sullivan’s post anyway.
2) Don’t prejudge. There might be somebody out there who believes in Scalia’s “impartiality”, or “originalism”, or something.
3) Much as I’d like to win $200K, the silence of our “conservative” friends who are always railing about “results-oriented” liberal justices would be almost as sweet.
–TP
Tony,
Scalia might surprise, but I need better odds than even money. Surely you jest.
If you give me 200:1 for a thousand, I can securitize it, then write a CDO, take out a spread option position, short that same position, and get an SBA loan to boot.
This is what makes our country great.
I actually suspect that Scalia would vote not to hear the case…
Same-sex marriage is legal in Sweden, and if we had thought to have gay judges rule on it we would have had it here much sooner…
Very ingenious legal strategy to have a homosexual jurist hear the case!
Congratulations!!!
Now if we can think of a way to assign Muslim clerics to replace the Liberal Party education minister Jan Björklund, we can overturn any bans placed against students and teachers wearing face veils and avoid any more excitements and threats to kill school board members from our Islamic brothers and sisters…
And then, perhaps, we can appoint a Tourette Syndrome executive to run The Swedish Transport Agency (Transportstyrelsen), and overturn its recent rejection from a man in Stockholm for a auto registration plate which reads FCKU2MF (SEE HERE) because it would cause offense to some…
All these would be, as stated above, welcome improvements to civil rights, human decency and let us look at each other in the eye and face without recrimination, or the eye and the veil for those who choose to cover them…
A moose bit my sister once…
No realli?
Has anyone come up with an argument for overturning this decision which is not an equally good argument for overturning Loving? If not (and I certainly haven’t seen one) obviously interracial marriage could be banned (at least locally) on the same grounds of “will of the people” and “no Federal grounds.”
Just want to know if my marriage is now at risk….
Mike, to answer your original question:
1) if the ruling is not appealed (which it will be, but just supposing), then it applies to this one case and nothing else.
2) if it is upheld by the 9th Circuit, then it applies anywhere in that Circuit, but not elsewhere in the US
3) if it is upheld by the supreme court, then it applies everywhere. (And probably voids the Federal Defense of Marriage Act as well.
Which is to say, the defendants are really going all in if they appeal.
What’s amusing is that it appears the judge wrote this decision to swing Kennedy around if it makes it to the Supreme Court – ah the joys of a 4+4+1 court.
h/t Kevin Drum
Justice Antonin Scalia WILL vote to REVERSE Judge Walker’s ruling.
Stakes: $200K.
Odds: even money.
Any takers?
Not me, Tony. But if you get more action than $200K and need to lay some off, let me know. Maybe we can work something out.
I don’t go to wingnut sites, I have enough headaches.
But I’ll [figuratively] bet that some of the wingers are ready to start a movement to repeal the 14th amendment totally.
I mean: how else would they be allowed to punish teh gays and teh brown immigrant people?
Of course they won’t think through the consequences: that’s how wingers roll.
And it would never pass.
But it will be fun. And also unpleasant.
A little light reading: a screed on the Prop. 8 ruling from Maggie Gallagher of the Natl. Org. for Marriage (NOM) .
Noticeably light on cogent argument, that is; heavy on the “moral” indignation and self-righteous resentments. Sadly, these attitudes probably aren’t the outliers a lot of us wish they were….
Remember when the national motto was “e pluribus unum”?
Out of many, one.
Not “one nation of people just like me”.
Out of many, one.
Good times.
@wj
My girlfriend is a rising 2L, and she says that the distinction between this and Loving is that Loving was subject to strict scrutiny (http://en.wikipedia.org/wiki/Strict_scrutiny)
because it was using racial classification. However, she also says that the prop 8 case doesn’t qualify for intermediate scrutiny (gender discrimination triggers this) because it is not discriminating by gender, since both genders are discriminated against equally. I might be misunderstanding or misstating her points though.
Loving seems analogous to me, though, because it also discriminates against each race “equally” (white people can’t marry black people and vice versa).
WP says courts have been reluctant to apply intermediate scrutiny to sexual orientation classification. I don’t know the reasoning though.
WP says courts have been reluctant to apply intermediate scrutiny to sexual orientation classification. I don’t know the reasoning though.
Doesn’t the scrutiny test depend on evidence of historical discrimination against the group in question?
Which is a bit inconsistent in my opinion.
While, yes, racial minorities have been historically discrimated against, and thus strict scrutiny should be applied…women? I mean, what was that John Lennon song again?
And homosexuals?
The test is misapplied to say the least.
I just want to say that reading that decision gives me warm fuzzies. It’s one of the good parts of America.
One thing I’ve never, ever understood about the opponents of gay marriage is this. Their insistence that gay people getting married will attack regular marriage, or disrupt the social fabric, and that sort of thing. Letting people get married helps make stronger relationships, and strengthens the social fabric. And if other people getting married can disrupt a relationship, there were a lot of other problems there first, and something else would have been the straw that broke the camel’s back.
@ Nate:
Check out the link in my 11:03 post: the following excerpt pretty much sums up the “opposition” position in a nutshell:
Judge Walker has added insult to injury by suggesting that support for marriage is somehow irrational bigotry, akin to racial animus. The majority of Americans are not bigots or haters for supporting the commonsense view that marriage is the union of husband and wife, because children need moms and dads.
As usual, opponents of same-sex marriage are quite quick to dismiss or deny ANY suggestion that their positions might be based in ANY way on mere prejudice; but then, typically, have only the (rather thin) reed of “morality” to fall back on.
The legalistic niceties surrounding SSM are all just so much trimming around the core issue: societal approval of homosexuality: an issue which too many people (whether out of religious or secular distaste) are not (yet) willing to concede. As you point out, the trite old “Saving Marriage” trope doesn’t make sense, but then, it’s not supposed to: it is meant mainly as a figleaf over naked prejudice.
The majority of Americans are not bigots or haters for supporting the commonsense view that marriage is the union of husband and wife, because children need moms and dads.
The screwed up logic of this is breathtaking. Even if you buy into the idea that one mom and one dad constitute some sort of ideal, how do you square that with all of the other parenting arrangements, with and without marriage being involved, that are increasingly common and allowed to occur (in a free society, mind you) with the notion that, somehow, two moms or two dads will be so problematic that we just can’t let that happen – that undermining same-sex couples raising children trumps everything else? I mean, it doesn’t even make much sense if you start from what is a fairly bigotted premise. Of course, the people most opposed to SSM start from a really bigotted premise and simply pretend that it’s only mildly so (IMO, AFAICT, ISTM – can’t read minds) to appear reasonable and thoughtful and concerned for others, when they’re really just hating on teh gays.
Right, I mean: single parents, divorces with kids, kids raised by g-parents, etc.
Any takers?
no thank you
will an overturn also reverse NH (and other states) law allowing SSM? or can a scotus ruling be narrowed by say remanding it back?
JayC: I’ve read it, but I still don’t get it. Maybe it is a skein over naked bigotry, but even in that case, it doesn’t pass the smell test. Even less than the “Think of the children!”, because that’s dumb and wrong, but at least it’s an expected kind of dumb and wrong. “Gay marriage threatens marriage!” is just Insane Troll Logic.
One other bit I liked in the judgment was the point that defining marriage just by procreation devalues marriage far more than allowing gay marriage.
Nate, the best explanation of the persistence of the “gay marriage threatens marriage” idea (and it may have come from someone right here at ObWi, I don’t remember) is that underneath it’s the same thing as “they can’t be allowed to swim in the white folks’ pool, they’d contaminate it.”
Some people seem to have a desperate need to think that someone isn’t as good or as worthy of the ordinary blessings of daily life as they and their kind.
Gays, Muslims, people of color, Native Americans, formerly Catholics, Mormons, Jehovah’s Witnesses, Seventh Day Adventists, the list is long.
One of the great ironies to me is the way groups like the Catholics and Mormons, who have been stigmatized, stereotyped, and discriminated against in the past, have come into their own as stigmatizers, stereotypers, and discriminators.
Humans being human, I suppose.
That would be We LOVE you: we just don’t want you in the pool with us!: “Marriage in their view is not about pledging to love, to honour, and to cherish the one your love till death to you part; it’s not a civil right necessary to the orderly pursuit of happiness, as the Supreme Court decreed 42 years ago; marriage is a privilege, a strictly limited pool, and allowing lesbians and gays in the pool will ‘change the complexion of the club’.”
Thanks, Jes.
It’s so hot and muggy where I am that I can barely form sentences. In better weather I might have been able to trace the thought train backwards and give credit where credit is due. 🙂
“Marriage is the basic building block of society. And if gay men get married, that threatens my marriage immediately because I only got married as a taunt toward gay men because they couldn’t.” — Stephen Colbert
This is my suspicion as well. From every legal analysis I’ve read–as well as my own layman’s reading of the ruling and following the case–this decision is about as airtight as it gets. The higher courts are limited to findings of fact, not law, and the facts in this case are damning. Add in the blatant incompetence of the defense team and you have a decision that will be extremely hard to overturn.
I wouldn’t put it past Scalia and the other judicial activists on the court to try, but my money would be on them denying cert in order to avoid the possibility that the SCOTUS will uphold. That would be a disaster for the anti-gay crowd, as it could directly threaten not only DOMA but every state law prohibiting gay marriage.
Catsy, I think you reversed “facts” and “law”, above.
On the Scalia voting for cert question, do you think it depends on how the 9th Circuit rules, or do you take the 9th’s ruling for granted?
–TP
Yes, I did, thanks. Brainfart (rhymes with Breitbart).
I don’t think it matters how the 9th Circuit rules. I am assuming it will uphold because I can’t see a way for it to not, but I think any calculation concerning the risk (to the bigot crowd) of SCOTUS upholding is independent of that.
“Their insistence that gay people getting married will attack regular marriage, or disrupt the social fabric, and that sort of thing.”
The biggest problem here is that if a woman can marry a woman then why would any of them ever put up with a man? That will certainly destroy the social fabric.
The biggest problem here is that if a woman can marry a woman then why would any of them ever put up with a man?
That’s certainly the basis of my marriage, and I’ll thank you not to raise that question again.
(rimshot emoticon x2)
Then maybe men should stop being such douchebags?
(Myself included.)
we can aspire
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08:23 PM to 11:39 PM make an interesting set of comments on marriage: men and shoes. If you buy the right size, and take care to break them in, you can walk on them for years.
I mean shoes, of course.
*grins*
More seriously (I’m truly sorry, I just can’t resist a straight line): Amanda Marcotte:
Lifting the ban on same-sex marriage follows equal marriage at glacial but inevitable pace.
I remain legally distinct, I must say. And my wife? Legally distinct.
Not sure what she’s talking about, here.
Slarti: I remain legally distinct, I must say. And my wife? Legally distinct.
What Amanda means is modern civil marriage husband and wife have equal rights, responsibilities, and obligations towards each other: the wife is not considered the adjunct of her husband – her name, her citizenship, her property, her work, and her body are her own, not legally her husband’s.
This has not always been the case. Once upon a time, a wife had distinctly different legal obligations towards her husband than a husband did towards his wife.
The history of civil marriage in the US:
Before 1900, a wife might not have had the right to own property in her own name: as a married woman, until 1900 in many states of the US, anything a wife owned was the property of her husband and she might not even have the right to sign contracts in her own name: her husband would be required by law to do that for her.
There were states in which it was legally impossible for a woman to retain her surname after she married: she was required to change her name to her husband’s.
Before 1933, a wife acquired the legal citizenship of her husband: if she married a non-US citizen, she lost her US citizenship.
Before 1976, a wife had no right to decide to have an abortion without her husband’s consent: her uterus belonged to her husband, not to her.
Before 1991, in many states of the US, a wife had no right to refuse her husband sex: the sexual use of her body belonged to him, and in law, no matter if she said no, or fought to stop him, his use of her was not legally rape.
When marriage law presumes that a husband has legal rights over his wife which she does not have over him, and that she has obligations to her husband which he does not have to her, then the only way a same-sex couple can get married is if one takes the legal role of the husband, one that of the wife.
US marriage law now presumes no legal distinction between two spouses, so there’s no reason not to allow same-sex couples to marry.
To pick a nit a bit, I think it’s a little confusing to say that spouses aren’t legally distinct.
What has changed is that their roles that are no longer legally distinct. In fact, since in the old days the woman lost her separate/autonomous legal existence when she married, there’s a way in which it would also be true to say that the people themselves are now legally distinct in a way that they weren’t in the past. In the past, women lost their legal separateness; she became “Mrs. He.” That has changed.
I spent some time in the Maine law library last year reading old statutes. There were of course all kinds of ways in which, when a woman married, her existence was subsumed under her husband’s, and he in effect now owned her and it. (And not v.v.) But one interestingly different little twist was this, from the early 1800’s:
An unmarried woman could be a co-executor, but unlike her other roles/possessions, this role did not transfer to her husband if she married. Instead, it was as if she “were dead.”
Ah. Thanks for explaining, J. The phrasing was misleading for someone who isn’t in that conversation a great deal (me, for instance). Makes sense, now.
Thank you too, JanieM.
@Julian
My girlfriend is a rising 2L, and she says that the distinction between this and Loving is that Loving was subject to strict scrutiny (http://en.wikipedia.org/wiki/Strict_scrutiny)
because it was using racial classification. However, she also says that the prop 8 case doesn’t qualify for intermediate scrutiny (gender discrimination triggers this) because it is not discriminating by gender, since both genders are discriminated against equally. I might be misunderstanding or misstating her points though. [Sorry that quote is so long, but the original is quite a ways up.]
It appears that the judges decision states taht the Supreme Court has ruled that marriage is a fundamental right, and that triggers strict scrutiny. I can’t say whether he is right on either the prior SC rulings, or as a matter of law. But he did take the trouble to address the issue. Which suggests that Loving may be relevant after all.
Good point wj. Hadn’t thought of it that way – was thinking more of the classification of the subject group.
Thinking on it again this morning, I need to amend something I said upthread.
Upon reflection this is very, very wrong. If I assume that the primary motivation of Scalia and the other right-wing activists on the SCOTUS is to deny cert if it looks like there’s a risk it will be upheld, then it is critical that the 9th uphold the decision. Otherwise Scalia and his ilk have no reason to grant cert, and every reason to vote to deny it and let the prior decision stand.
Also, listening to the Stephanie Miller show this morning, they had Ted Olson’s junior partner on and in the context of whether or not the judge stays his decision pending appeal he said that the opposition really seems to want to stop people from getting married, which he’s never been able to fathom.
What he didn’t say–and I don’t know if it was a strategic omission or blindness–is that far more is at stake in the stay than simply keeping more of those icky gays from marrying. As I recall, one of the more powerful arguments against Prop 8 was that it created three distinct classes of Californian: heterosexuals who could marry and divorce freely, homosexuals who were legally married but could not remarry if they divorced, and homosexuals who could not legally marry at all.
The more gay people who get married in CA, the more indefensible Prop 8 becomes–and they know it.
If I could write the law, this case would have been unnecessary. Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period.
That said, and hopefully understood, maybe affirmation is a slam dunk, maybe not. I am less sanguine about the trial court’s findings of fact binding an appellate court than are most others here, nor am I convinced that, simply because a seemingly poor case was put on by the defense, that a plebiscite can be rescinded. First, there is the matter of judicial notice, by which courts take notice of matters outside the record if such matters fall within the court’s ‘knowledge’, i.e. “facts so notorious as to be within the range of our judicial notice.” The notion of what has historically and traditionally been a marriage falls well within a court’s judicial notice. Whether a court takes such notice and what the court does with it are different matters altogether. Second, while marriage between a man and a woman is a recognized fundamental right, that does not mean that any marriage outside this paradigm is also a fundamental right. Third, there is the matter of federalism. Defining the terms of marriage is ‘traditionally’ the province of the states. Fourth, cases grounded on race face a higher standard of review (usually strict scrutiny) because race, as opposed to sexual orientation, is constitutionally proscribed as a basis for discriminatory state action.
Moving on from that limited discussion of the merits/procedure, etc., this decision may not play out as well as everyone would like. If the trial court is reversed, that could well put an end to any future ‘equal protection’ challenge to any state or federal law disallowing gay marriage/civil union or any such challenge to other statutes, etc. that discriminate against gay people. If affirmed, it will be Roe v Wade all over again, but likely worse. Can enough congress members/senators be depended on to vote against the inevitable constitutional amendment reversing this decision if affirmed by the High Nine? Can they survive their next election? The push back to gay marriage being made the law of the land by judicial fiat will be huge.
I am afraid this decision is a decade ahead of its time. I am even more afraid that, being born premature, it’s survival is by no means a sure thing.
I’m not qualified to speak on the legal question, but I can say with absolute certainty that there has never been any one answer to what marriage has “historically and traditionally” been–even if only within the United States.
I’m pretty sure we’ve hashed these out extensively, but at different points in history, marriage has evolved in ways including but not limited to the following:
– Once a joining sanctioned solely by religious institutions, it is now a legal contract in which religious doctrine carries no legal weight whatsoever
– women used to became the property of their husbands with few or no legal rights of their own; it is now a partnership of nominal equals
– Interracial marriage was once considered scandalous and disgusting and was against the law; it is now commonplace and unremarkable
– Divorce used to be difficult, impossible, or illegal; it is now a routine part of American law
The list goes on and on. The age at which one can marry, the degree of blood relationship allowable, intermarriage between religions… these things and more have all, at one point or another, been enshrined in tradition and law. Even today, they are not consistent from one state to another, let alone one country to another.
No argument appealing to “tradition” would survive in conflict with the facts laid out in this case.
“but no more than two”
Why
Addressing this to McKinney in response to his 5:33:
Some of my friends in Maine think that the vote here was just two or three years too soon. Maybe it was, I don’t know.
But as I’ve said here and elsewhere many times, neither I nor anyone else is in charge of how this kind of change is approached. When some gay couples in Hawaii initiated a law suit in 1991, there were self-appointed gay activists who said very loudly that it was too soon. For all practical purposes Olsen and Boies appointed themselves to bring the current lawsuit. I don’t think any major gay activist organization signed them up. It goes for all of us that we have very little control over what the people next door do, much less over millions of our fellow-citizens nationwide.
That said, I too am uneasy about what the Supreme Court will do if they get this. I would like to be optimistic but I’m not, really.
Maine will be an interesting laboratory this fall for the role same-sex marriage is likely to play in political campaigns in the next few years. SSM opponents held a rally this summer (I was traveling, not that I would have gone near it if I was here), trying to keep the issue alive and visible. Both sides, I’m sure, are working feverishly in the background to try to get voters to reward/punish state legislators for how they voted. My own state rep, a longtime acquaintance, was one of 7 Republicans in the House (out of 55) to vote in favor of marriage. He will be targeted, but he is very well-liked, a moderate Republican and a hard-working local guy who has done a good and truly good faith reach-across-the-aisle kind of job in the legislature for 6 years already (this will be his last term in the House, if he wins, because of term limits). But even if he’s defeated, it will be hard to tell whether it’s because of the SSM vote, or because the district, like most of Maine, tends to lean Democratic at the state legislature level.
In the last gubernatorial election, the Republicans nominated their most right-leaning candidate, and he was defeated soundly. In June’s primary they did it again, though this nominee happens to be very well-liked, unlike the previous one. In fact, both parties went to their extremes for candidates for governor, and there’s a strong independent running as well, so no one I know is doing any predicting at this stage. But my hopeful side says that given the economy, the wars, the price of heating oil, the eternal Maine wrangling over taxes and education policy, it will be quite a feat for opponents of same-sex marriage to turn a couple hundred legislature contests into single-issue referenda on marriage. And if they succeed, then as a polity we deserve what we get.
There’s no campaigning going on yet, so I can’t even give a report on how much SSM is being played up by campaigns (in either direction). Hopefully we’ll have a thread or two on the subject in the fall.
I still believe what I said early in this thread: “It was a great day and a great hour, whatever may come after.” I have by now read the decision, and as a gay person (and I’m not a lawyer) it is a balm to read a calm, cold-blooded, intelligent dismantling of all the idiotic hate-filled b*llsh*t that filled the airwaves in my state last fall. (Kind of like the warm fuzzy memories I get of Kitzmiller v. Dover, though I never actually read that decision in full, I just read the reporting on it.)
The campaign to legalize birth control went on for 70 or 80 years, sometimes in legislatures, sometimes in the courts. Too bad for all the people who’d like to get married if this one takes that long, or, in your (McKinney’s) most pessimistic imaginings, if we for all practical purposes never get there because of backlash.
I have to say that I get tired — in myself just as much as when it comes from someone else — of what seems to me to be a kind of good faith concern trolling. This applies to life in general, to all my activist friends and their might-have-beens, as much as to internet discussions, blog posts, pundits, etc. If only we were perfect, and made perfect decisions at all times, and especially if only other people would perfectly follow our methods, the world would be fixed in a jiffy. Insofar as you’re making predictions or speculating about likelihoods, I pretty much agree. Insofar as you’re saying people screwed up by the timing of the lawsuit, all I can say is eh, talk to me about something useful. People do what they do. Other people often criticize and second-guess as if hindsight is 20/20. Hindsight is just as blind as foresight; no one knows what might have been if someone had done something different last week or last month or last year.
If I could write the law, this case would have been unnecessary. Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period.
Frankly, that should be the case now, since a) there are states where gay marriage is completely, uncontroversially legal and b) the Full Faith & Credit clause of the Constitution still exists. Unfortunately, we have an entire class of people who want to pretend that DOMA somehow supersedes the Constitution, and so if you’re married in Massachusetts, you’re somehow not married in North Carolina or Texas or wherever.
I sorta kinda want to start a legal movement to allow states not to recognize driver’s licenses or car registrations from other states. Just to see how “principled” some of these people are.
nor am I convinced that, simply because a seemingly poor case was put on by the defense, that a plebiscite can be rescinded.
If something’s a right, it’s a right, and all the votes in the world can’t take it away. The state may be able to prevent you from exercising it or punish you for doing so, but that doesn’t make it any less a right.
If affirmed, it will be Roe v Wade all over again, but likely worse.
Even though you’re probably correct, I find this indescribably sad. That people can get that angry and worked up about complete strangers getting married to each other. It’s just . . . wrong. That’s the only word for it. It’s wrong.
And it goes beyond sad into angry-making that people who in every other circumstance you can think of would cry, “Keep the government out of my life!” want to flex that tool in order to prevent complete strangers from getting married.
Hindsight is just as blind as foresight; no one knows what might have been if someone had done something different last week or last month or last year.
Sing it.
“First, I must confess that over the past few years I have been gravely disappointed with the straight moderate. I have almost reached the regrettable conclusion that the great stumbling block in the stride toward LGBT equality is not the Mission America or the NOMer, but the straight moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another couple’s marriage; who lives by a mythical concept of time and who constantly advises LGBT people to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.”
Or something like that.
The greatest problem with the “too soon” argument, as I see it, is simple. First, someone can always say “it’s too soon, there will be backlash”, no matter what the conditions on the ground are. second, no matter how the changes are made, there will be backlash. Conservatives like to say Roe v. Wade was wrongly decided, or decided too soon, and caused the backlash of the Fundamentalist Right. Maybe, but does anyone really think the fundamentalists wouldn’t have flipped out if it was done by Congress? Of course they would have. Then it would just have been those damn activists/Yankees/liberals/FakeAmericans in Congress that did it, rather than those damn liberal judges. And if it had been done through Congress, then there still would have been a court challenge, that would have gone to the Supreme Court, with exactly the same results.
There’s times you have to stop worrying about people flipping out who are always going to flip out, and just do what’s right. That’s something too many of the Democrats in DC (including Obama, at least so far) don’t seem to get. And there’s only so long you can tell people to keep suffering because some percentage of their neighbors are reactionaries you don’t want to offend.
I grew up a very left leaning somewhat radical hippie type, in the days of Lennon, Neil Young, Baez, young Dylan, and a plethora of folk singers and beat poets. Free love became a mantra and excuse for really ill thought out behavior but there was a moment when CSN sang Triad that you could believe it.
All of that to say this:
Every day is the right time to do what you believe is right and stand up for those beliefs. Tomorrow is just a day to do it again. There is no reason to wait for the perfect time because the perfect time is created by standing up every day until it works.
Just for once…
Every day is the right time to do what you believe is right and stand up for those beliefs. Tomorrow is just a day to do it again. There is no reason to wait for the perfect time because the perfect time is created by standing up every day until it works.
What Marty said.
“If I could write the law, this case would have been unnecessary. Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period.”
(bold mine)
I still wonder why this is considered ok. (simple question ignored above)
@ Nate:
And there’s only so long you can tell people to keep suffering because some percentage of their neighbors are reactionaries you don’t want to offend.
Unless, of course, you are one or the other of the Houses of the United States Congress: in which case “so long” can stretch out into time periods so extensive you’d need a geologist to time them.
@Phil:
And it goes beyond sad into angry-making that people who in every other circumstance you can think of would cry, “Keep the government out of my life!” want to flex that tool in order to prevent complete strangers from getting married.
I think you’ve hit on something here: the “complete strangers” part, It’s a lot easier to hold to positions or ideologies of prejudice – even severe prejudice – when the target of said bias is an abstracted “Other” – as gays have been (and sadly, continue to be) characterized as for centuries: when it’s your own family/friends/co-workers…. well, maybe not so much.
Oh, and when you get constant reinforcement from your selected selective media that your bigoted attitudes are sanctioned and smiled upon by God, directly; it doesn’t help, either.
It’s a lot easier to hold to positions or ideologies of prejudice – even severe prejudice – when the target of said bias is an abstracted “Other” … when it’s your own family/friends/co-workers…. well, maybe not so much.
I think this is generally true; certainly my own experiences and those of most of my gay friends and acquaintances would suggest so.
Interestingly related, though: I think that the fear that one’s own child might be gay is one of the strongest, most intractable driving forces behind the opposition to anything that would affirm that gay people have a place in the world just like anyone else.
See, if being gay is okay for some people, then it’s probably okay for any people, and if it’s just another ordinary way of being human, then it might — GOD FORBID(S) — be a way that anyone’s child might be human, even mine.
And that’s not possible. It doesn’t really even rise to the level of dread or fear, it’s much deeper and more inaccessible than that. Better dead, see?
Yet another twist on the possibilities was illustrated by this speech from the debate on marriage in the Maine House on May 5, 2009. This woman cried while she made her speech. Well, we all make our own choices and it’s obvious that hers are painful, and not just for her.
If anyone is interested in poking around in the transcript, check out Representative Flood and Representative Sirois. They’are among the ones that made me cry.
I still wonder why this is considered ok. (simple question ignored above)
I don’t know that I think it’s OK, but in total throwing-darts-in-the-dark mode, I’d guess that the benefits, rights and obligations of marriage that people generally think about aren’t scalable? Maybe? That’s just a total guess of why most people wave away polygamy and polyandry in these discussions.
That’s just a total guess of why most people wave away polygamy and polyandry in these discussions.
I suppose this follows on McKinney’s statement, above — Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period — as to the reasons for which I’m content to let McKinney can answer for himself if he wishes and when he gets around to it.
As for myself: I personally would prefer to “wave away polygamy and polyandry” in these discussions because as far as my own participation goes, that’s not what I’m discussing. (Kind of a tautology, right? There are more to come.) The following is not aimed at Phil, but rather grows out of having been here before again and again and again, including here at ObWi..
The idea that every time we talk about same-sex marriage we’ve got to talk about polygamy and polyandry — and often by extension that if we’re working to legalize same-sex marriage we’re dishonest or hypocritical if we’re not also working to legalize polygamy and polyandry and even, for crying out loud, some kind of rights for unmarried opposite-sex couples — is objectionable for two major reasons that I can think of off the top of my head.
1) If people want to talk about polyandry, polygamy, and a general reform of the marriage laws, by all means go for it. I might even participate in that discussion. But that’s not what the Walker decision is about, it’s not what the same-sex marriage campaign is about, and it’s not what we started out talking about right here. To anyone who is unhappy about the first two items on that list, I would say (not for the first time): feel free to start your own campaign for the legalization of polygamy and polyandry and/or a general reform of the marriage laws, but don’t try either to drown out my voice talking about same-sex marriage, or drag my campaign down by hanging onto my coattails with your far more quixotic and (possibly?) far more unpopular goals.
As to the third thing, the discussion right here, yes, blog threads drift, and they often drift into interesting places. But to imply [as people have on this very blog] that there is something nefarious or selfish about prefering to focus on same-sex marriage when we’re, ah, focusing on same-sex marriage, is BS, and suspiciously familiar in the effect it has of implying that gay people should just pipe down and fade back into the closet.
2) The people working to legalize same-sex marriage are, wonder of all wonders, working to legalize same-sex marriage. There is no reason in the world why they should also be working to legalize, or even discussing, polygamy or polyandry. For one thing, it is an absolute certainty that they don’t all agree about polygamy and polyandry — and vice versa, it’s important to point out. Same-sex marriage on the one hand and polygamy, polyandry, and/or a general reform of the marriage laws are different topics, and different campaigns. They attract different people, they require different approaches, they have differing chances of success, and they have differing levels of interest in the general population.
It’s as if someone started a campaign to legalize riding a motorcycle without a helmet, and every time that subject was brought up some other people started jumping up and down about weight limits for trucks on the highway, and by extension about reforming the American transportation system. No doubt some people have a sincere interest in polygamy and polyandry and some people have a sincere interest in a general overhaul of the marriage laws, just as some people have a sincere interest in truck weight limits and some people have a sincere interest in general transportation reform.
But the people working for same-sex marriage and a change in the helmet law are working on what they’re working on, not on other or bigger picture issues. I don’t give a flying banana about polygamy, polyandry, or a general reform of the marriage laws (though I would love to see a general reform of the transportation system: more trains, please). And working for and talking about same-sex marriage does not obligate me to take a stand on, much less work for, polygamy or polyandry.
Over to McKinney if he wants to talk about why he would allow same-sex marriage but not polygamy or polyandry. I’m going outside.
Second try on this, an earlier comment seems to have gone missing. My apologies if this ends up being redundant.
the deepest part of my soul tells me that this is wrong.
I’m sure that this is true, and that Briggs is sincerely troubled by her daughter’s homosexuality.
The thing is, her personal beliefs are keeping other people from living their lives.
Nobody is trying to make her approve of gay marriage, or of homosexuality. Nobody is trying to change her mind about whether gay marriage is desirable, or not.
What she, and folks like her, are being asked to do is to let other folks have, and live by, *their* own understanding of the issues.
And they can’t bring themselves to do that.
All different kinds of people live in this country. We will never, ever, ever all agree about stuff like this. And we don’t have to.
But what we do have to do is let other people live by their own understanding of things, unless there is some real, concrete harm caused by their doing so.
I do not share Brigg’s discomfort with her daughter’s, or anyone else’s, homosexuality, but I am sympathetic to the difficulty it causes here.
It’s hard to live together with people whose point of view you do not share.
But that is *the* project of public life in a society as various as ours. We have to let other people live as *they* see fit.
If there is some real, concrete harm, different story. But nobody has ever demonstrated that in the case of gay marriage.
And that, in turn, is because there is no such harm to demonstrate.
On the contrary.
I think there are a lot fewer people bringing up polygamy/polyandry to express support than there are bringing it up as a slippery-slope argument against same-sex marriage. Apparently there are box turtles even farther down the slope.
Hogan,
Let’s be clear, McK was very specific. He added the “only 2” portion in very specifically. I was just curious why he was that specific in his writing of the law.
No slippery slope, no alternate motive, no hidden agenda, no threadjack, it just struck me in it’s specificity, and then lack of notice.
Marty, I didn’t mean to attribute that motive to you, and I’m sorry I gave you that impression. I was responding to JanieM’s desire for the SSM discussion more generally not to get sidetracked into other issues, and noting that it’s not always a sidetrack so much as an effort to derail. Of course it’s possible to discuss the issue without necessarily doing either of those things. Please carry on.
No problem Hogan. The answer I expected was somewhere between, “just to ensure focus on SSM” and “I don’t know, I just put it in”. No big deal in this context anyway.
I’ve been either away from my computer or hosting out of town guests (son and future daughter in law).
I put “only two” in to forestall an anti-SSM argument grounded on the slippery slope argument. That said, the slippery slope argument is one that needs to be confronted rationally by SSM supporters. In brief, unions of more than 2 adults can and should be rejected by civil authorities as administratively unwieldy, overly complex and not subject to rational formation and dissolution. Specifically, property rights and custody are problematical enough with only two partners. Add a 3rd or a 4th and our already strained domestic judiciary will likely to be unable to cope, i.e. to fashion a set of rules and precedents for multiple partners. I could go on, but in a nutshell, the practical problems emanating from polygamy far outweigh that status’ claim to being a fundamental right.
A related argument is that the only fundamental right we are talking about is that between two people, currently a man and a woman. SSM advocates support extending that right to same sex couples. Nothing more, no hidden agenda.
On the ‘too soon’ subject, I would be delighted to be wrong. Remembering the fall out from Clinton’s very first days when he was going to allow gays to serve openly, you can look back and see a lot of progress. Not as much as JanieM or Jes or Uncle K or many others would like (and who can question that), but real progress nonetheless.
Now, we have the specter of a thumbs up/thumbs down ruling by 9 appointed judges. Either way the court goes, unless they can somehow split the baby, it will likely be bad. Bad either because a ruling against could/would mean there is no equal protection argument to be made for gays or bad because the opposition could go as far as forcing a constitutional amendment outlawing for all time SSM. In that event, today’s victory would be worse than hollow.
In ten years, maybe less, present trends continuing, SSM will be much more widely accepted. It will be adopted by legislatures, at first a few at a time, but more as time goes by. Publicly vocal opponents will lose more and more credibility and a consensus will build.
Far better than judicial fiat.
McKinney, when people argue against “judical fiat”, I think: they’re people who have never, ever, ever had to turn to the judiciary to protect their rights against a majority who would vote them out of existence.
If the Supreme Court decides that the US is a country in which LGBT people are forever to be unequal citizens, that will be bad. But it was the hazard in 1967, over thirty years before the majority of people in the US were prepared to grant that Mildred and Richard Loving were and should be legally married and their marriage recognized everywhere: and the Supremes still decided for justice and equality, against prejudice and discrimination.
It’s easy and simple for you to say “wait”. You aren’t being denied any rights. Your wife is not being forcibly divorced from you by majority vote. You and your wife are not at risk of losing your home, your possessions, and each other, because one of you fell down a flight of steps and the local county authorities decided to take it all from you while you were helpless.
For you to say “wait” comes across as stupidly arrogant or uncaring. You don’t have the right to say “wait” because you are not hoping the change comes within the next year so that you can legally marry the woman you love before you die. I have a friend who is dying in Washington State, where anti-marriage conservatives have voted she shan’t have the right to marry.
She’s got 18 months. Maybe more, maybe less, My first thought was: unlikely, but maybe, if this case gets to the Supremes promptly, if they decide according to the facts of the law, if the bigots on the court get outvoted – maybe my friend can marry before she dies.
So just STFA with your “oh wait” crap, please. You really don’t have the right, sitting in your ease and comfort, to look at people crying out for justice before death and say “hey, maybe in ten years it’ll be better, but right now I don’t think you’ll win so you shouldn’t even try.”
Judicial decision is a perfectly acceptable way to enforce minority rights in a democracy.
Because they are minorities, they frequently lose out via the ballot box. Without judicial checks, you end up with the tyranny of the majority.
If given the choice between the tyranny of the majority, and recognizing fundamental minority rights, I’ll side with the latter. In the intervening years, the public can go ahead and catch up while people are not being denied. Same thing for the public.
“Judicial decision is a perfectly acceptable way to enforce minority rights in a democracy.”
Enforce, yes. Create? No. I don’t believe that the judicial branch has some sort of general anti-majority mandate. And of course the question of whether this is creation or mere enforcement is *the* question. But considering already existing Supreme Court precedent, it looks a lot like creation.
I like the outcome of this decision, I’m skeptical of the process. This decision looks like an all-in gambling strategy. If it works, fantastic. If it doesn’t, you really screwed the whole thing up. I wouldn’t have chosen that approach, especially with SSM well in reach legislatively or through proposition in the near future. And I especially wouldn’t have chosen the totalizing approach taken by Walker. We are in an all or nothing gamble now, I hope for all. But I wouldn’t have chosen the gamble.
Also, it would be interesting to see some of the liberal jurisprudence take on Walker’s reaching far beyond the question presented vis-a-vis a non-similar take on Citizens United. It can be jarring from the Supreme Court, but isn’t it even more so from a trial judge?
Result, definitely good. Process, pretty crappy.
Now, we have the specter of a thumbs up/thumbs down ruling by 9 appointed judges. Either way the court goes, unless they can somehow split the baby, it will likely be bad.
I’ve been seeing this argument a lot over the last few days, coming from strong SSM supporters who know a hell of a lot more about the legal intricacies than I do, and I have to say it’s very worrisome. I have no qualms about the propriety of the judiciary being out in front on this issue — I’m with Eric on that — but I hate to think of what’s at stake should things not go our way at the next stage.
That said, I’ve never understood why SSM (or DADT, for that matter) are so widely seen as the crucial legal issues for LGBTs when we still haven’t gotten ENDA passed, and there are still wide swaths of the country where fundamental areas like housing and employment are subject to a patchwork of local and state anti-discrimination laws that leave people in wide swaths of the country unprotected. That always seemed like Job 1 to me, and I sometimes wonder if it doesn’t come down to the fact that the people with the money and influence in the LGBT movement already live in places where those rights have been secured and can be taken for granted.
Uncle Kvetch: That said, I’ve never understood why SSM (or DADT, for that matter) are so widely seen as the crucial legal issues for LGBTs
Ending discrimination at work or in provision of services is important, but the reason why (as an LGBT activist and a pacifist!) I see the freedom to marry and the right to military service as key issues is that they are both opening-doors rights.
Even if it’s illegal to be discriminated against at work, that doesn’t mean people who want to discriminate won’t be able to. That doesn’t mean the law shouldn’t be there: it should. But to use the law, there has to be an individual who’s been discriminated against at work and is willing to take up the case against their employer. That can mean being outed, rather publicly: it can also mean all of the other issues that a whistleblower has to consider. ENDA is a necessary starting point from which accomplishments can be built, not an end in itself.
But anyone who wants to join the military, should be able to. (I say this as a pacifist. I may wish nobody would, but if anyone’s going to, I don’t see why lesbians and gays shouldn’t.) And if DADT is abolished, then anyone can. Door open. Doesn’t require any special effort more than anyone else to join the military: just means that when you’re in, you don’t have to lie.
And anyone who wants to be able to marry, should: it’s an even wider door-opening right. It’s key because it’s the access to about a thousand other federal rights and probably around five hundred state rights. But it’s also key because it’s a civil right that just entails opening the door, and once open, requiring no special further effort (beyond what any marriage requires).
Both military service and marriage are also a means by which many straight people who might say they don’t know any gay people, will find they do: not unusual weirdoes wanting “special rights”, but just ordinary people living in the same block, going into the army or going nuts over the wedding, just like anyone else.
That’s why they’re key. And that’s why Obama is hanging back on both of them: they both mean change, and we all know Obama stands for continuity with the Bush administration, not sudden change…
ENDA is a necessary starting point from which accomplishments can be built, not an end in itself.
I agree, it’s exactly that: a starting point. My sense is that ENDA (which, if the polls on the subject are to be believed, would be far less fraught with controversy than marriage equality or ending discrimination in the military*) would make those other changes more likely in its wake.
I could be totally wrong about that, but it’s curious that this question doesn’t get discussed more.
*Not that it would be a walk in the park, mind you…we’d still have to contend with Rand Paul invoking the sacrosanct rights of employers and landlords to discriminate on any basis or no basis at all…
My sense is that ENDA … would make those other changes more likely in its wake.
I think it’s just as likely to work the other way around, as Jes has suggested. And this is one of those big multi-stranded social questions that I just don’t think we can answer in any sure way.
Also, though I don’t have any long-term super-activist credentials (except for a certain stubborn insistence on writing newspaper columns as an openly gay person many years before most of my friends thought it was (relatively) safe to do so), and I’m not a student of political history, I’m pretty sure the movement for marriage came originally from the grassroots in defiance of the political calculations of activists.
People want to get married. It matters in a concrete way and it affects practically everyone. Job discrimination is fuzzier, more variable, and particularized to specific situations, and you can maneuver around some of it by being discreet. (Not that you should have to be, but still.) With marriage — you’re either married or you’re not. There’s no gray area and no way to be half-married, or married as long as you’re careful to keep one foot (or more) in the closet.
The discussion here and elsewhere keeps turning on these vast big picture questions, like which goals should come first, and whether activism should be directed at legislatures or courts or “the people,” and what kind of grand strategy would be best, as if there’s actually someone in charge who is making all these decisions.
But there’s no one in charge. No one was in charge of the people in Hawaii who tried to get married in 1991. No one was in charge of Boies and Olsen and their clients deciding to bring the Prop 8 lawsuit. No one can give GLAD orders about when to bring lawsuits. No one had the right to muzzle Equality Maine in the fall of 2008 when they started gathering supporters for a marriage campaign.
This is no different from any other longlasting political campaign: women’s voting rights, civil rights in relation to race, birth control.
There’s no commander in chief. We each do our bit and hope for the best.
I’m pretty sure the movement for marriage came originally from the grassroots in defiance of the political calculations of activists.
That could very well be the case, JanieM. You probably know more than I do about these things than I do. I don’t follow the movement(s) closely, precisely because I can afford not to — I’m one of those fortunate people who can be just about as out as it’s possible to be anywhere in the US right now. I admit that.
Job discrimination is fuzzier, more variable, and particularized to specific situations, and you can maneuver around some of it by being discreet. (Not that you should have to be, but still.) With marriage — you’re either married or you’re not. There’s no gray area and no way to be half-married, or married as long as you’re careful to keep one foot (or more) in the closet.
Very true. Good point.
But there’s no one in charge.
Also true. I was going to say in response to this that the big national organizations like HRC and NGLTF do play a major role in setting agendas and priorities for the broader movement. But then again, if I’m not mistaken NGLTF has made ENDA their top priority for years now. Which neatly disproves my point.
Consider me schooled. 8^)
UK, I didn’t mean to come off as trying to school you. Thanks for taking my lecturing lightheartedly. 😉
*****
Since you mentioned HRC and NGLTF: Andrew Sullivan, of course, never tires of crapping on HRC for precisely that fact — that ENDA is their top priority and it has been so for years, and it’s still not passed. I truly do not pay all that much attention at that level, and I am a far way from taking Andrew Sullivan’s word as gospel. But maybe HRC is like the activist whose raison d’etre would go away if the goals were actually reached, and so….
You really don’t have the right, sitting in your ease and comfort, to look at people crying out for justice before death and say “hey, maybe in ten years it’ll be better, but right now I don’t think you’ll win so you shouldn’t even try.”
Jes, how many fence sitters has your particular style of suasion brought over to your side? I am thinking not so many. You seem to think it’s okay to simply ram things through. And maybe that works in the UK. Here, you get push back. You get two kinds of push back. The first is the predictable backlash from the religious opponents to pretty much any legal protection for gays (how Prop 8 came into being, pushback to judicial fiat). The second is the resentment that many Americans feel when they perceive judicial fiat is shortcutting the legislative process. They don’t like it on principle.
The decision set aside a state wide plebiscite. That is no small thing. It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM.
You can dismiss the consequences of government by mandamus if you like. Others won’t be so sanguine.
If given the choice between the tyranny of the majority, and recognizing fundamental minority rights, I’ll side with the latter. In the intervening years, the public can go ahead and catch up while people are not being denied. Same thing for the public.
And suppose the tyrannical majority passes an amendment to the US constitution, leaving the definition of marriage up to the several states and expressly withdrawing the “full faith and credit” protections from SSM? You will have won a battle and lost the war. A war that is currently being won in statehouses around the country. Absent a fairly strong and widespread consensus on SSM, this decision could well prove to be a bridge too far.
“The decision set aside a state wide plebiscite. That is no small thing. It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM.”
Let’s imagine a hypo where, before the Loving decision, a state effectively banned interracial marriage by passing a Proposition defining marriage as “between a man and a woman of the same race.” Would a court decision compelling the state to define marriage in a way that permitted interracial marriage be “troubling?” If so, why? If it is not troubling, why does the same decision w/r/t SSM trouble you?
I know that Strict Scrutiny and Intermediate Scrutiny haven’t yet been extended to laws using sexual orientation as a classification, but is that the basis of your objection?
Jes, how many fence sitters has your particular style of suasion brought over to your side?
Oh, poor poor you, did I put you off supporting equal civil rights because I wasn’t nice to you? Oh well. Guess your support was meaningless.
The first is the predictable backlash from the religious opponents to pretty much any legal protection for gays (how Prop 8 came into being, pushback to judicial fiat).
Yeah, but so what? Bigots will oppose any legal protection for LGBT people however presented. The same kind of Christians are found in the UK flailing madly against civil partnership and arguing they should have the right to discriminate because their religious practice of homophobia overrides civil and human rights for LGBT people. They don’t get as far as they do in the US because no major political party needs them enough to get into bed with them the way the Republican Party needs the Christian Right.
The second is the resentment that many Americans feel when they perceive judicial fiat is shortcutting the legislative process. They don’t like it on principle.
Yeah. Americans who have never experienced having their rights voted away from them by majority rule resent being told by the judicial branch that, regardless of their beliefs, they’ve just got to treat everyone equally. So what? Do you seriously think Mildred and Richard Loving ought to have bowed to majority American resentment and given up on the idea of getting married until a majority of Americans thought they should be allowed to?
FWIW, the Founders disagreed with you. Not on these specific cases, but on the general principle: rule by democracy does not mean that the majority get to vote basic rights away from minorities. One role of the judiciary in a democracy is to protect minority rights against majority rule. That “many Americans” resent this ideal that the Founders set up, is why there are checks and balances set into your Constitution to curb their resentment.
It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM.
Ah. So the Founders, in your view, got it wrong: majority rule should govern what rights minorities are permitted. If a Protestant majority vote to de-recognize Catholic marriages, you find it “troubling” that a proper judicial decision would refuse to recognize this vote: If a white majority vote to de-recognize marriages between black people, you find it “troubling” that a proper judicial decision would refuse to allow a majority to define marriage as “a relationship only white people can have”.
Because for you, it’s “troubling” that in a democracy, minority rights can be protected against majority bigotry.
To me, that’s not troubling at all. But I guess your trouble over the idea that a majority don’t get to decide what civil rights a minority is allowed, is a measure of how little you’re actually prepared to support lifting the ban on same-sex marriage.
An ad based on McKinney’s kind of feeling that minorities ought to have to ask permission of the majority before they have the right to marry:
Sinead’s Hand
And suppose the tyrannical majority passes an amendment to the US constitution, leaving the definition of marriage up to the several states and expressly withdrawing the “full faith and credit” protections from SSM? You will have won a battle and lost the war. A war that is currently being won in statehouses around the country. Absent a fairly strong and widespread consensus on SSM, this decision could well prove to be a bridge too far.
*calming down a bit*
It’s not my country. Beyond a personal interest in multiple friends who have no legal right to marry and would like to, it’s not my business.
But where it is and was my business, in my own country, yes, we lost individual fights and individual cases: we lost rights, we gained them back. Sometimes the forces of evil look impossibly strong. Sometimes they are, and we lost. Sometimes they looked too strong to fight, and we won anyway.
It’s up to each individual person to decide for themselves how far it’s worth fighting for their rights and what price might be exacted if they lose. But when someone who’s already got the rights that others are fighting for, counsels surrender because the forces arrayed against them are too strong, well: why listen? If you were forcibly divorced from your wife by majority vote, McKinney, and told you and she would never be recognized as married again, would you tamely surrender your marriage to the majority vote, and counsel others in the same predicament to surrender because you are sure they could not win?
In a democracy, this is troubling, even for some people who support SSM.
Even “in a democracy,” or at least our democracy, some things have been put beyond the reach of plebiscite. For good reason, in fact precisely the reason we are seeing so well illustrated here (animus toward those who are “different”).
So unless you object to the foundational assumptions of our “democracy,” there is nothing unusual about having some things kept out of reach of the vote, even though most Americans, especially the ones who want to ensure rights and goodies for themselves while taking them away from people they don’t like, are too dim and/or uneducated to understand that, or too self-regarding to care.
Just to get a sense of the territory, I’m curious as to whether “some people” includes you, McKinney. And also, is it just decisions in relation to SSM (or LGBT people in general) that trouble you (or “some people”) this way, or is it the general principle of having some things in a democracy placed beyond the reach of plebiscite?
If Tennessee (picking not entirely at random but because of a protest I read about the other day) voted by plebiscite to say that Islam isn’t really a religion and therefore doesn’t come under the protection of the First Amendment, and a court overturned the vote, would this be “troubling”?
Given that the Constitution is amendable, in theory the entire Bill of Rights could be amended away. Would this trouble you, or the “some people” who are troubled by the possibility that the right to vote away my having the same rights they do might be taken away from them?
I do understand that in a way the current open question is whether LGBT people are the kind of group that has a right to fundamental rights. Though that reasoning in itself is suspect if you ask me.
More later. I haven’t had breakfast yet.
Being a straight white male, I will readily admit that straight white male privilege includes being able to safely assume that my fundamental rights will, in all likelihood, never be voted away by a bigoted majority. The difference between me and many other straight white males is that I understand that people who aren’t me deserve the same privilege.
Cross-posted with Jes.
As to Sinead’s Hand — I’ve seen that lovely ad before, but not recently. Eerily enough, I just dreamed about Ireland (literally, just before I got up this morning)…now you’re breaking my heart. I haven’t been back in 16 years. Maybe it’s time.
I appreciate McKinney’s call for persuasion and building consensus, rather than having the courts impose a particular reading on the situation.
The problem is that there are a huge number of people in this country who will, quite simply, never be persuaded that being gay is not something that should be actively discouraged, as a matter of public policy.
Lots of folks think being gay is an aberrant lifestyle choice. Lots of these folks know gay people, interact with them, etc. It’s not due to lack of information, it’s just an article of faith to them, in some cases literally.
They think of being gay is analogous to being a junkie, or to having a fetish for sex with animals, or to be being a pedophile.
What kind of kind of conversation are gays going to have with people like that?
And time doesn’t always make a difference.
There are millions of people, lo these 45 years after the Civil Rights act, that think blacks are stupid, lazy, ignorant layabouts who are sucking the lifeblood out of the body politic.
There are millions of people who think that Jews are greedy moneygrubbing parasites who killed Our Lord And Savior Jesus Christ.
Etc etc etc.
If you wait for folks like that to come around, you wait forever. They ain’t coming around.
So yeah, it’s highly likely this will be appealed, and were I gay this is not the particular SCOTUS I’d like to make my argument before. It could all go badly.
But sometimes you just have to push the freaking envelope, or nothing happens at all.
You seem to think it’s okay to simply ram things through. And maybe that works in the UK. Here, you get push back. You get two kinds of push back. The first is the predictable backlash from the religious opponents to pretty much any legal protection for gays (how Prop 8 came into being, pushback to judicial fiat). The second is the resentment that many Americans feel when they perceive judicial fiat is shortcutting the legislative process. They don’t like it on principle.
While this argument seems intuitively correct, there have been studies conducted in recent years that seem to disprove it. That is, there is no discernible pushback. Just the same committed opponents opposing the policy in question, though perhaps with more fervor now, but not more fervor than a legislative loss provides.
That is, if they lose at the ballot box, they get fired up in the same way that they do with losses in the judiciary. The differences are negligible.
And suppose the tyrannical majority passes an amendment to the US constitution, leaving the definition of marriage up to the several states and expressly withdrawing the “full faith and credit” protections from SSM? You will have won a battle and lost the war. A war that is currently being won in statehouses around the country. Absent a fairly strong and widespread consensus on SSM, this decision could well prove to be a bridge too far.
Not worried. The Constitution amending process is so onerous, so time consuming and there are so many veto points, that this doesn’t really concern me much. Not gonna happen.
I think it would be as valid for me to make the argument that McKinney should stop making the argument he is because it makes him sound like a concern troll as it is for McKinney to make the argument that people shouldn’t push so hard for SSM because of the risk of backlash.
And, maybe I’m wrong about this, but the risk of a constitutional amendment specifically carving out SSM as a federal matter and leaving it entirely up to the states seems remote enough not to consider it when attempting to determine whether or not to support a current favorable ruling (you know, something that’s actually happening in the real world). If such an amendment does start to look like a serious possibility, that’s just another fight to be had, something to push hard against if/when it happens.
(I think the “don’t be happy about the good things happening right now because they will lead to far worse thing in the future” line of reasoning should be called “Monkey’s Paw Arguments.”)
Regarding backlash, from a post on Matt Y’s site:
In Lawyering for Marriage Equality, Scott Cummings and Douglas NeJaime address this head-on:
Finally, we find that the evidence in support of the backlash account’s causal claim is weak…By focusing solely on court decisions, the backlash thesis fails to account for the influence of nonjudicial factors. Specifically, the legislative push for domestic partnership in California motivated, at least in part, the statutory prohibition on marriage for same-sex couples embodied in Proposition 22. And during their television advertising campaign, Proposition 8 proponents emphasized the specter of same-sex marriage being taught in schools over the fact that the right to marry for same-sex couples derived from a court decision, suggesting that the schools issue resonated more powerfully with voters.
Now, a new report empirically validates this thesis: Prop 8 was almost certainly approved due to false and misleading advertising that had absolutely nothing to do with any sort of backlash against “activist judges.” Cummings and NeJaime also hit on a key point that somehow constantly gets ignored by the process nitpickers: “Opponents were mobilized to place a constitutional ban on the ballot irrespective of the form in which marriage equality was passed.”
In other words, marriage equality opponents use every possible tool at their disposal to advance their agenda, and supporters should do likewise. When marriage equality is mandated via court decision, opponents argue that it should be up to the legislature. When a legislature passes a marriage equality bill, opponents suddenly discover direct democracy. And if a majority of voters in a state eventually do approve marriage equality via ballot initiative, opponents are already geared up to sue on the grounds that they are being discriminated against. Complaints about process are simply a red herring — anti-gay marriage activists care only about results.
http://yglesias.thinkprogress.org/2010/08/the-win-win-nature-of-lgbt-impact-litigation/
“I will readily admit that straight white male privilege includes being able to safely assume that my fundamental rights will, in all likelihood, never be voted away by a bigoted majority”
Oddly, I am not quite so sure of this. It is why I believe that all of the remedies in our system of checks and balances should be available to any minority.
I have had a few seemingly (or actually) insignificant rights taken away over the years*, in various places, that remind me that even straight white males can be part of a minority at times.
*Please don’t misunderstand, these don’t compare to the topic at hand.
The right to having a good tasting meal in NYC for example(no trans fats). I could also have a drink and a cigarette together in the past, now, not so often. There are probably a few more but, as I said, they are small reminders.
So the Founders, in your view, got it wrong: majority rule should govern what rights minorities are permitted.
Jes, this is a weak argument, technically and substantively. The concept of minority rights didn’t even begin to evolve under 13th-15th Amendments were adopted post-Civil War. When those amendments were adopted, and before and well after, homosexuality was a felony. The notion that the drafters of either the Bill or Rights or the 13th-15th Amendments had sexual orientation or SSM in their sights is laughable.
If you were forcibly divorced from your wife by majority vote, McKinney, and told you and she would never be recognized as married again, would you tamely surrender your marriage to the majority vote, and counsel others in the same predicament to surrender because you are sure they could not win?
You are asking the question out of context, at least as it applies to California. SSM was the result of judicial fiat, which predictably produced a backlash, which predictably produced Prop 8. Anyone who married pending the outcome of Prop 8 did so subject to being divorced by plebiscite. It was a risk. My marriage was the product of existing laws passed by the legislature. There was no “notice”, actual or constructive, that the legal underpinnings of my marriage were under attack.
Just to get a sense of the territory, I’m curious as to whether “some people” includes you, McKinney.
It does not. I am in the minority that believes sexual orientation falls under the equal protection clause. The operative word here is minority.
If Tennessee (picking not entirely at random but because of a protest I read about the other day) voted by plebiscite to say that Islam isn’t really a religion and therefore doesn’t come under the protection of the First Amendment, and a court overturned the vote, would this be “troubling”?
If any state were to outlaw a specific religion by popular vote or by legislative act, it would and should be reversed under long standing First Amendment precedent.
in theory the entire Bill of Rights could be amended away. Would this trouble you[?]
It would trouble me to the point of armed revolt.
Look, I am not saying it will all go to hell in a hand basket, for sure and for certain. I am simply noting that it could, and that the chances of it doing so are not small. There is another direction this could take—still a gamble, but ultimately a happy ending—the Supremes could do a reprise of Brown v. Board of Education and include something akin to “all deliberate speed” with respect to enforcement. The ensuing debate—which is a year or two away—could well be won by SSM supporters. The debate would also serve the salutary purpose of forcing a lot of people to be questioned hard on their bigotry.
You are entirely right, the Constitution is subject to amendment. The failure to pass an amendment overturning such a decision would be a victory.
The problem is that there are a huge number of people in this country who will, quite simply, never be persuaded that being gay is not something that should be actively discouraged, as a matter of public policy.
Lots of folks think being gay is an aberrant lifestyle choice. Lots of these folks know gay people, interact with them, etc. It’s not due to lack of information, it’s just an article of faith to them, in some cases literally.
This number shrinks everyday. A consensus is building and it will continue to grow. Pushing the envelope is all well and good, but the push back is a certainty and the outcome is anything but certain.
When marriage equality is mandated via court decision, opponents argue that it should be up to the legislature. When a legislature passes a marriage equality bill, opponents suddenly discover direct democracy. And if a majority of voters in a state eventually do approve marriage equality via ballot initiative, opponents are already geared up to sue on the grounds that they are being discriminated against. Complaints about process are simply a red herring — anti-gay marriage activists care only about results.
Eric, do you really find it comforting that two lawyers who think like you do have examined the evidence and determined that there won’t be a backlash against activist judges if the Supremes outlaw every statute and state constitutional provision banning same sex marriage?
That is what is in play here. Affirmation implicitly invalidates a whole raft of recently enacted legislative and state constitutional measures crafted, in large part, by Rove et al to get the vote out. A split decision invalidating all of that, across the board, isn’t going to be a passing blip on the public’s radar screen.
Oh, poor poor you, did I put you off supporting equal civil rights because I wasn’t nice to you? Oh well. Guess your support was meaningless.
At moments like this, I find it pleasant to hear jes’s comments as if they were being read by Sue Sylvester.
But seriously, jes, you should tone it down. Please.
McKinney, question for you. Was the Civil Rights movement of the 1960s too early? Should they have waited?
I ask because the pushback from that radically changed both political parties and it could be argued poisoned the well of political discourse in this country, and 40+ years later we are still paying the price for pushing for those rights to be acknowledged and recognized.
Me: If Tennessee (picking not entirely at random but because of a protest I read about the other day) voted by plebiscite to say that Islam isn’t really a religion and therefore doesn’t come under the protection of the First Amendment, and a court overturned the vote, would this be “troubling”?
McKinney: If any state were to outlaw a specific religion by popular vote or by legislative act, it would and should be reversed under long standing First Amendment precedent.
I know that. That’s not what I asked. Maybe I wasn’t clear enough.
Since you think it matters so much that some people find it “troubling” when a court decision overturns a plebiscite relating to LGBT people, I’m wonder if it would “troubling” in exactly the same way when the subject matter was something different.
Is it “troubling” because there really is nothing that should be put beyond the reach of majority vote? (I do think this is what a lot of people think, though for the most part I don’t think they’re people who think very hard, or think at all. Sarah Palin comes to mind since I just watched a video of her blathering canned idiocies like a wind-up doll.)
Or is it only “troubling” when we’re in an area that does not involve “long standing precedent”? I.e., if there’s no long standing precedent, we have to wait for “the people” to come around?
Or is it only “troubline” when it relates to LGBT people?
I’ll echo Jes’s question: should the Lovings have waited? If so, they might well still be waiting today, as Russell points out. Without the court decision that paved the way for people to get married, allowing interracial marriage to become more a part of ordinary life, progress might have been even slower than it has been.
DFS, with respect, I don’t think history started in the 1960s. That well was poised in the 1860’s. Or for that matter at the founding. We are still paying the price for slavery.
Feel free to ignore this, but I would be really interested in the current state of affairs on all this in the UK and how they got to that point, Jes.
JanieM mentioned in an earlier thread about how (iirc) marriage and military were causes because they were door openers, versus workplace equality, which can be circumvented in a variety of ways. It seems to me this is precisely correct because the more you make people realize the similarities, the more you will reduce the core to the people who are not going to ever change, at which point social ostracism kicks in. The questions then would be what are the best tactics to reducing opposition to that irreducible lump and when you know you have you reduced that group to that point. However, the irruption that is the Tea Party(-ies) seems to suggest that these sorts of things lie in hiding in the body politic, just waiting for the right set of conditions.
JanieM mentions slavery, so I feel compelled to put a link to this. Hard to know whether to laugh or cry.
poised -> poisoned
time for some caffeine
The right to having a good tasting meal in NYC for example(no trans fats).
So trans fats are the only thing in the world that tastes good? Huh. You may want to see a doctor.
You also can’t use leaded gasoline anymore — you know, what with the lead poisoning and all — but I don’t know that you had a right to that in any case.
I could also have a drink and a cigarette together in the past, now, not so often.
Sure you can. Just not on other people’s property, in some cities. If it bugs you that much, move to Kentucky or Michigan.
JanieM mentioned…Giving credit where it’s due, that was Jes.
McKinney, question for you. Was the Civil Rights movement of the 1960s too early? Should they have waited?
Fair question, at first blush. Painting with a broad brush, the sequence of events was Brown v Board of Education, a unanimous opinion, followed by the marches, followed shortly by the Civil Rights Act of 1964. Good Republicans voted for and Bad Democrats voted against the Act.
With African Americans fighting in Vietnam and having fought in WWII and Korea, the idea of denying equality for no better reason than skin color was well past time for addressing, as unpleasant as the process of doing so was.
And if a significant majority viewed sexual orientation the same as we view skin color, the debate would have long since been won. However, a majority does not. At least not with the broad and firm support racial equality has enjoyed–at least in principle–since the mid to late 70’s.
The point here is that the notion of racial equality didn’t really set in for more than a decade after the fight first really began. As shameful as that is and was.
Thanks JanieM, and apologies to Jes. I was trying to google the comment, but I couldn’t find it.
McK, you noted
With African Americans fighting in Vietnam and having fought in WWII and Korea
but a large step to that was Truman’s desegregation of the military. Fortunately or unfortunately, because we have a volunteer military and because the military is so much further out of sight and mind, I think, the transformative effect of unplugging don’t ask, don’t tell will be less than it should be, but you shouldn’t forget that some of the steps were done by fiat.
“With African Americans fighting in Vietnam and having fought in WWII and Korea, the idea of denying equality for no better reason than skin color was well past time for addressing, as unpleasant as the process of doing so was.”
Dude… There’s gay and lesbian soldiers in the military, and they’ve fought in pretty much all of our wars, including WWII and Vietnam, up to Afghanistan and Iraq. They just can’t be open about it, because of archaic rules before and DADT now.
The whole “backlash” argument is pretty distasteful, for several reasons. First, because it’s a “stop making me hit you!” argument, which is crap.
Second, should Brown vs. Board of Education not have gone forward, because the judicial imposition of actually enforcing the 14th amendment caused backlash? Really? And how much of that was because a judge did it, and how much was because the country finally said “screw this” to the racists? Did the racists stop their “backlash” when Congress passed the Civil Rights act? Of course not. The complaints about “judicial activism” in that case, and the case of abortion are not about the methods, but the results.
The fact of the matter is that there are people who are reactionary and bigoted against one or more groups, and any efforts to take away their legal right to discriminate are going to make them flip out. Courts, legislatures, statewide referenda, however.
lj: Feel free to ignore this, but I would be really interested in the current state of affairs on all this in the UK and how they got to that point, Jes.
In 1997, Labour won the General Election, and in 1998, Blair’s government passed the Human Rights Act 1998 — legislation which incorporated the European Convention of Human Rights into UK law.
In 1999, the state of play in the UK was;
The age of consent for heterosexual intercourse was 16: for gay men it was 18: for lesbians it was presumed to be 16, though lesbians were largely ignored by statute.
Section 28 was still the law, banning “Promotion of homosexuality” by local authorities.
There was no legal protection against discrimination in employment for LGB or provision of goods/facilities/services, and there was no right of recognition for same-sex relationships. Legislation had just been passed to include trans people under the anti-discrimination legislation protecting women in employment.
While the British military no longer court-martialled LGBT soldiers, sexual orientation/gender identity was still cause for immediate discharge from the armed forces.
In 2000, the Scottish Parliament repealed Section 28, the European Court of Human Rights ruled that the British military had no right to ban people from military service for being LGB, and the UK Parliament passed legislation making the age of consent for all equal. (The UK parliament also attempted to repeal Section 28 for England and Wales about the same time and were defeated by the House of Lords.)
Looking back, both the Human Rights Act and the ECHR decision on military service were key groundchanging decisions – but yes, it also mattered that the Tories, traditionally opponents of equal rights, were in a minority in the Scottish Parliament, the UK Parliament, and the Welsh Assembly.
The UK government passed legislation for protection in employment in 2003 because it was absurd to all beholders that a gay man serving in the military was protected against discrimination by his employer, but as soon as he left it could be fired at will for his sexual orientation.
And then when David Cameron became leader of the Tory Party in 2005, it seems to have dawned on him that LGBT people have votes, and so do their friends and families… but I don’t think this would have occurred to him without all the legislation successfully passed for equal rights for adoption, gender recognition, employment, etc, enabling more and more individuals, statutory bodies, charities, and MPs, to come out in favor of civil and human rights for LGBT people. Civil Partnership becoming law in December 2005 was itself a key moment – for months afterwards local newspapers were carrying cute heartwarming gay marriage stories with adorable pensioners gazing sweetly into each other’s eyes. (Very hard to run a hate campaign against two elderly people holding hands and beaming at the camera.) But a lot of those elderly couples were people who understood the power of coming out in public – who had been part of/been supported by the gay liberation movement of the 70s and 80s.
The past 10 years have been hugely successful for LGBT rights in the UK – to the point where, even if the Tory government refuses to take us further, it’s certainly become politically impossible for them to try rolling us back.
The political structure of the US is sufficiently different from the UK and from Europe that I don’t know that you can really argue from one to the other. But given a solid legal platform guaranteeing equality of civil rights and human rights to all, which in principle at least in the US you do have, I don’t see why the US can’t accomplish what the UK did… even if, thanks to the permanent conservative control of your federal government, you need to go via the judiciary route.
What is consistently noticeable is that nothing changes people’s opinion of gay marriage like having gay marriage happen. It’s now accepted that Prop8 won in California because a massively-funded homophobic campaign of TV ads told lies about what the freedom to marry meant, not because straight Californians saw their gay neighbors getting married and freaked out.
McKinney, here’s the thing. We’ve been over this ground again and again.
Going on two years ago it was about how our poor soldiers are courageous enough to face death in battle but too wimpy to shower with people they think might be gay. So we shouldn’t, heaven forbid, push too hard for repeal of DADT, because it’s counterproductive not to respect the tender sensibilities of people who think we pollute their world. We should just tiptoe around on eggshells and hope that someday, somehow, the only people whose opinions and sensibilities truly matter will let us into their club.
Last fall it was about how LGBT people have to be sure and say nothing but nice things about people who would rather we didn’t exist, because otherwise a bunch of undecided people will decide that only polite minorities should have equal rights.
And now there’s this thread.
Your pattern is to offer a brief statement of your own bona fides as being on the right side of the cause (and I’m not doubting that you are), and then to quickly turn your attention to the ways in which impatient, or strategically challenged, or foul-mouthed, or pushy LGBT people and their supporters are “doin’ it rong.”
Many people have answered you, over and over again, with: We know there are risks. We’re going forward anyhow, because we think it’s worth the risk and it’s the right thing to do. (And people have answered you on your own allegely purely practical grounds as well. For instance, here’s hairshirthedonist at 11:13: If such an amendment does start to look like a serious possibility, that’s just another fight to be had, something to push hard against if/when it happens. Thanks hsh.)
And your answer in return is in effect to shake your finger at us like a school marm and continue to insist that we are, as the parents say of their three-year-olds these days, “not making good decisions.”
This is why the words “concern trolling” have come up more than once in this thread.
There are a lot of people here who are not at all stupid. We are all, I think, pretty clear-eyed about the downsides. In fact, those of us who are LGBT have lived the downsides all our lives. Unless we’re headed for a nightmare descent into violent fascism (in which case lost ground for LGBT people will be just one item on a long list of ills), even a Constitutional Amendment banning SSM is a downside that seems — to thousands if not millions of gay people and their supporters — to be a reasonable risk in relation to the upside and to our reading of the odds.
If you’re saying we’re doing it wrong, then with respect, I don’t think you know any more about it than we do. (“We” meaning said millions of LGBT people and their supporters. And to forestall this line of objection, “we” too know plenty about the reactions and mindsets of the people who would prefer that we go back into our closets and stay there; you don’t have a monopoly on that knowledge.)
If you’re saying we’re calculating the odds wrong, then again with respect, I say that your crystal ball is no better than ours.
cheers, jes. As you might expect, I’m interested in this because of being in Japan and trying to understand why things differ from place to place.
“Not worried. The Constitution amending process is so onerous, so time consuming and there are so many veto points, that this doesn’t really concern me much. Not gonna happen.”
I’m not worried about a Constitutional Amendment. I’m worried about a loss at the Supreme Court level.
“Finally, we find that the evidence in support of the backlash account’s causal claim is weak…By focusing solely on court decisions, the backlash thesis fails to account for the influence of nonjudicial factors. Specifically, the legislative push for domestic partnership in California motivated, at least in part, the statutory prohibition on marriage for same-sex couples embodied in Proposition 22.”
This kind of statement strikes me as more lawyering than reasoning. The, “at least in part”, part is obscuring instead of enlightening. There may have been some part of that, but the Knight Initiative (which had a nasty anti-gay campaign which I remember well because it prompted many personally painful discussions with my fundamentalist Christian father) was largely focused on the perceived problem of Court imposed marriage in Hawaii allowing gay couples to go to Hawaii and have their marriages for California. And this was part and parcel with the Defense of Marriage Act (thank you Clinton) which again was focused largely on the fear that some state court was going to force through gay marriage.
Both the Knight Initiative and DOMA were direct reactions to the Hawaii Baehr v. Lewin case on gay marriage.
“Now, a new report empirically validates this thesis: Prop 8 was almost certainly approved due to false and misleading advertising that had absolutely nothing to do with any sort of backlash against “activist judges.””
Actually if you read the report it strongly suggests that the main misleading factor was that you had to vote ‘Yes’ to vote no on gay marriage, which is why it was so close to begin with. Which is depressing, but there you are.
“Opponents were mobilized to place a constitutional ban on the ballot irrespective of the form in which marriage equality was passed.”
The problem with this statement is that it doesn’t reach the question we are trying to get at. The hardcore opponents will of course be mobilized no matter how it happens. The question is “what about the rest” which they don’t reach at all.
If we want to say that it hasn’t been proven that judicial backlash is worse, fine. It is one of the many complicated social science areas where evidence points in lots of directions. But their claim that it has been disproven by the fact that opponents would have mobilized anyway is social science analysis gone wrong. The question is whether they would have mobilized successfully.
The underlying law review article has the same framing problem (and btw, what is with citing law review articles as normal social science? is there a science-like peer review now that I’m totally unaware of?):
The authors then spend pages showing that LGBT rights lawyers tried to avoid litigation in California. Already they are well off onto the wrong foot. The judicial backlash thesis does not require anything in particular about the motivations of LGBT rights lawyers. It requires that voters see the changes happen largely through the courts. Which of course, here they do.
They then go on and on about how the LGBT movement was largely not unified on the marriage issue (true, many of the more radical advocates suggested that we should support a wider variety of non-traditional arrangements as marriage was too polluted by gender roles), and how some advocates in California tried to go the legislative route, and had not yet won (also true).
But those have almost nothing to do with the backlash argument. People in general aren’t following the small side struggles in the LGBT movement. Hell, I don’t always follow them and I think even someone as dedicated as Jesurgislac might have trouble telling you what they were off the top of her head. These aren’t evidence for or against the backlash theory because they don’t show up on the public radar until the court cases.
They note one thing, but I think they interpret it incorrectly: that domestic partner benefits haven’t created a *substantial backlash*. They go through a few pages charting the back and forth of domestic partnership concepts in California in the 1990s. As they mention, advocates focused on the mean-spiritedness of not allowing hospital visits to long term partners, or kicking long term partners out of long shared homes. And, as they mention, those things worked. We did get domestic partnership benefits in California, so much that they were effectively everything but the name of marriage.
Now I’m not arguing that this is *ultimately* sufficient. But it was definitely a set of excellent steps.
And this created a ‘backlash’. But the backlash it created was limited and pretty ineffective. Opponents mobilized, sure, but they didn’t get much traction. So their thesis that opponents would oppose anyway, seems vindicated. But that seems rather uninteresting.
They then trace all sorts of internal strategic back and forth on gay marriage in California: stuff that political insiders care about. This eventually led to the California Court decision for gay marriage.
This *court* decision of course led directly to Proposition 8. None of the legislative wrangling led to anything as nasty as proposition 8. The legislative process which led to domestic partnerships didn’t get us proposition 8. It was the court decision.
The opponents mobilized over legislative domestic partnerships. But they didn’t get anywhere.
They mobilized over court directed gay marriage. And they got lots of traction.
This doesn’t *prove* that they would have been unable to get the same amount of traction if everything had gone through the legislature. But it suggests it. And the Cummings NeJaime law review doesn’t counter that because they approach the question from the wrong direction. They focus again and again on internal struggles, but ultimately ignore the difference in public face which ultimately gets portrayed. The mostly legislative battle over domestic partnerships mobilized foes and caused reactions. But they didn’t get traction with the public. The mostly court-focused marriage issue mobilized the same foes, but they got not only traction with the public, but a huge majority loss for GBLT rights. That seems like a big difference to me.
(The article is great however at charting the history of what happened in the gay marriage fight in California on a tactical and strategic level from the point of view of the lawyer insiders. I definitely recommend it from that point of view).
WRT backlash…if it is true that the consensus for SSM and equal rights is building, then the only ways in which backlash can be dangerous are that either people who were part of the building consensus change their minds based solely upon the method by which the implementation comes about (which I find doubtful) or actual fence-sitters suddenly decide that their personal discomfort really does trump their openness, in which case the whole notion of the building consensus is illusory.
Am I missing something here that would cause a sudden and radical reversal in opinion, because I really don’t see anything changing except an increase in the noise level from equal rights opponents in an attempt to regain momentum.
This *court* decision of course led directly to Proposition 8. None of the legislative wrangling led to anything as nasty as proposition 8. The legislative process which led to domestic partnerships didn’t get us proposition 8. It was the court decision.
Well, yes. But that’s because the court decision led to equal marriage: while the legislative process, when equal marriage was passed, was veto’d by Schwarzenegger. Twice.
I can’t see that it would have mattered one iota how equal marriage was established in California: the forces of evil would still have opposed it. What triggered their ire was not the process, but the end result: happy gay couples getting their marriage licences.
(Similiar ire was triggered, if you remember, when the Mayor of San Francisco ruled that gay couples could apply for marriage licences.)
Irrelevant. This sort of manufactured outrage would happen no matter when or how SSM was legalized. It would happen if it was upheld by SCOTUS, it has happened every single time it has been passed legislatively at the state level, and it would happen if there was an amendment to the Constitution passed that preserved marriage equality.
Don’t you get it? These people don’t want gay people to marry each other. Period. They will piss and moan no matter how it happens.
I call BS. Conservatives use “judicial fiat”, “judicial activism”, and similar nonsense terms with no legal basis to describe any court ruling with which they disagree. Most Americans neither understand nor care about the details of legal process or judicial review–they react to the outcome, not the process, and the fact that it was a court ruling that produced an outcome they don’t like simply gives conservative media one more angle from which to manufacture outrage. When the outcome comes from legislation, they just find another angle. The process is merely an excuse to demonize the outcome.
And as previously noted upthread, the entire process argument is irrelevant anyway if marriage equality is in fact a right. If it is, then it is completely right and proper that the courts strike down the law as unconstitutional.
You continue to ignore the point that if something is a right, it is not subject to plebiscite. That is the entire point of judicial review: to subject laws to scrutiny on the basis of–among other things–whether or not they conflict with the Constitution.
If the law is unconstitutional, it doesn’t matter whether the law was supported by 20% of the population or 100%. The argument you are making is effectively that the judiciary has no place overturning laws that are popular. That argument has no basis whatsoever in more than two centuries of law.
No. It holds, explicitly, that the citizens of a state may not vote to deprive a disfavored minority of their rights simply because it is popular to do so.
It is troubling only for those who are ignorant of the role the judiciary plays in our system of government, and who do not actually believe that marriage equality is a right.
If you actually believe in equality, then stop making bogus process arguments that have no basis anywhere in American law. If you actually believe in equality, then you should support the affirmation of civil rights whether they come from judicial review or legislation.
If you don’t, then don’t waste our time with disingenuous pleas that people might be more supportive of gay rights if only we’d let people vote on them.
With due respect to all viewpoints on this thread, including the mild-mannered McKinneyTexas’ (who I suspect will need to be rescued from his lair at the Alamo estates when the troubles start), pop over to Redshite and sample the malignant lunacy of what Effing Effingson and his fellow reptiles have in mind as specific constitutional and electoral remedies for the Prop 8 decision.
See the post by said Effer: “Bind Them From Mischief With The Chains of the Constitution”.
Notice if these “peaceful” remedies do not come to pass, these coy, dark warnings in Effingson’s post: “something worse will come”, and “we will find ourselves at a point
we dare not go”.
Peruse the comments.
While you’re there, make yourself at home and count the bullets in the Alamo Armory, while reading Texas Galt’s diary “Well, Obama are you gonna pull those pistols or whistle Dixie”.
Settle in, and you need to, and read two more diaries by the estimable, but long-winded Vasser Bushmills (I’ve noticed recently a movement away from the pinkies-up Roman and Greek by-lines and cracked classical writing styles of former days and a migration to a kind of bear-fat-smeared down-home, Kit Carson, Andrew Jackson, Davy Crockett type of writing, in which threats of gizzard-removal, flaying, and the old standby, tar and feathering are spat out like a rotund bolus of phelgm into a spittoon.)
Specifically: “Situation Analysis: Are Deomcrats Trying to Prevent November” in somehow the first punch will not be thrown but they will murder all of us .. and …
…. “From Where the Sun Now Stands, We Will Not Be Moved” for Fidel Castro-like verbosity and playful threats of … well, violence, revolution and murder.
Peruse the comments.
Now, I can crank out faux-violent horsesh*t all day, but I know the real thing when I read it.
How come I’m not on the TV news shows? I haven’t seen McKinneyTexas either on the news proffering his reasonable (I disagree, but I have other fish to fry at the moment) views
Goat f*cker and child molester Effing Irksomely is, as he and his fellow anti-American, subhuman scum peddle violence and murder.
I fear for Irksomely’s child — Schmoe Lame.
Seb:
I’m not sure of the point here.
Are you really suggesting that opposition to SSM marriage grew because in some regions, the right was granted (created) but that if it were only created by judicial decisions then no backlash would have arisen?
Seems a fairly obvious point to me: opposition has grown more vocal and motivated as SSM has begun to be recognized, regardless of the means. It is SSM, not the means that SSM is ensured, that gives opponenets fits.
Simply put, there is no substantial segment of the population that opposes SSM because of the means, rather than substance.
It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM.
Followed by, from JanieM: does McKinney
find it “troubling” when a court decision overturns a plebiscite relating to LGBT people, I’m wonder if it would “troubling” in exactly the same way when the subject matter was something different.
Janie, my original statement was confined to not define marriage any way other than to allow gay marriage for a very specific reason. You’ve expanded that notion to a plebiscite relating to LGBT people, a much broader and hence more freighted concept. Marriage has been defined for centuries in the US as being between a man and a woman (yes, I know, whites with whites, husband’s property, etc.—got that part). Marriage of people of the same sex was never on the horizon. Now a judge has ruled that, in a democracy, the voters may not decide this issue. I am in the minority that think the judge is right, but I remain uneasy with the notion of judicially setting aside a popular vote addressing an issue that had been universal, settled law for centuries.
Your pattern is to offer a brief statement of your own bona fides as being on the right side of the cause (and I’m not doubting that you are), and then to quickly turn your attention to the ways in which impatient, or strategically challenged, or foul-mouthed, or pushy LGBT people and their supporters are “doin’ it rong.”
So, don’t bother showing up at ObiWi if you can’t get and stay with the program?
I call BS. Conservatives use “judicial fiat”, “judicial activism”, and similar nonsense terms with no legal basis to describe any court ruling with which they disagree.
Actually, progressives do the same thing, as in Citizens United or the 2000 election. The difference, of course, is progressives are right and conservatives are wrong. Everytime.
You continue to ignore the point that if something is a right, it is not subject to plebiscite.
The premise being that everyone accepts the right of two people of the same sex to get married. This is not yet a majority view. It seems self-evident to everyone here, but those ignorant, unfocused and/or bigoted folks who don’t agree are not yet on board. Ultimately, every right is subject to a vote in the US. It’s called the amendatory process.
If you actually believe in equality, then stop making bogus process arguments that have no basis anywhere in American law. If you actually believe in equality, then you should support the affirmation of civil rights whether they come from judicial review or legislation.
Thanks, but I’ll approach issues in my own way, and comment as I see fit. The problem with ideologues is that there is only one way to view an issue.
I haven’t seen McKinneyTexas either on the news
Hey, I was on the news!!! Once.
“Seems a fairly obvious point to me: opposition has grown more vocal and motivated as SSM has begun to be recognized, regardless of the means. It is SSM, not the means that SSM is ensured, that gives opponenets fits.”
You don’t think it can be both? Same sex domestic partnerships in California offer almost exactly the same bundle of benefits as ‘marriage’. You get joint custody of children, you get survivor benefits, you get hospital visitations, you get community property.
Domestic partnerships went through the legislative process.
They did not exist in CA before. They were hotly contested less than a decade ago. Most of the same people who oppose gay marriage opposed domestic partnerships. It was often animated by animus against gay people. They didn’t get much traction with the general population. They didn’t get a constitutional amendment prohibiting it, in fact when they tried they couldn’t even get it on the ballot.
Gay marriage, in contrast, went through the judicial fiat process only 6 years after domestic partnerships. It was opposed by the same people as domestic partnerships. The opposition was characterized by quite a bit of gay animus. They got huge traction with the general population despite the fact that general population animus against gays appears to be down compared to six years ago. They did get a constitutional amendment prohibiting it, and easily got it on the ballot.
“Simply put, there is no substantial segment of the population that opposes SSM because of the means, rather than substance.”
I think there is a pretty good case that the *intensity* and *breadth of high intensity opposition* is different between domestic partnerships and marriage. That may or may not be entirely because of the difference in method, but I’m surprised you can be so curtly dismissive of the idea entirely.
The general hateful organizers were the same in both cases. They got pretty much nowhere in the domestic partnership case despite making many of the same arguments (including the ‘think of the children’ argument). They got really far with the gay marriage case despite the fact that general friendliness to gay people went up in the intervening time. That is a difference worth spending a little time on.
John Thullen, please tone it down a bit.
Everyone else, mindreading tends not to be helpful to persuasion, nor friendly in the disagreement.
John Thullen: How come I’m not on the TV news shows?
Indeed, how come? That would be ace.
McKinneyTex: The premise being that everyone accepts the right of two people of the same sex to get married. This is not yet a majority view.
So, again, as Richard Loving died before it was a majority view in the US that he and Mildred ought to be allowed to marry, you feel that if they’d been democratically-minded, they’d have just accepted that they shouldn’t be allowed to marry?
Again, McK: if you were divorced from your wife by majority vote, would you just… accept that you weren’t allowed to be married to her any more, because in a democracy, you feel it’s only right for the majority gets to decide who can and can’t marry?
Actually, progressives do the same thing, as in Citizens United or the 2000 election. The difference, of course, is progressives are right and conservatives are wrong. Everytime.
Use of the term by progressives is ironic in almost all cases – using the terminology of the Right to point to the fact that “judicial activism” is a more or less meaningless phrase, or rather, employed by both ends of the spectrum that to claim opposition to it on principle is almost guaranteed to mark one as a hypocrite.
So, don’t bother showing up at ObiWi if you can’t get and stay with the program?
Not at all. Even if I were in charge of ObWi, that’s not what I’d say. I’m not talking about “the program.” I’m talking about relationships and respect, really. You recently said that you care about people here (I don’t have time to dig out the thread), and that’s what I’m really trying to get at.
You have come back again and again, every time this subject comes up, with the same theme, which I characterized as you telling us [LGBT people and supporters] “yer doin’ it rong.” Every time you do it, a number of people respond with: We know everything you know, we don’t agree with you about the odds, and we’re going to trust our own judgment and make our own decisions about going forward.
And every time, you just repeat yourself yet again, swatting us on the back of the hand one more time with your cautionary ruler like a third-grade teacher with a particularly dim-witted eight-year-old. Eventually it starts to feel dismissive and condescending.
I would never suggest that you stop commenting. But if you keep telling me I’m an idiot in relation to my own decision-making about my own life and things that affect me profoundly, eventually I will stop listening.
That is a difference worth spending a little time on.
Seb, you spotted the difference right away: Under SSM, both are now “marriage,” not some “separate and almost equal” nouveau Jim Crow arrangement.
That is what created the backlash, not the means by which SSM came about in CA.
Frex, can you point to any group that would accept SSM if voted in, but just not when mandated by Courts on equal protection grounds?
I can’t. I can’t even think of many individuals, let alone groups, let alone groups large enough to be considered as having any impact on the question of backlash.
As for “intensity,” that is hard to measure, but it’s always seemed like these arguments were thrown up by groups looking to bolster the ostensible legitimacy of their opposition, by couching it in more exalted terms.
Like abortion: the argument being that opposition to abortion would be significantly less if not for Roe v. Wade (meaning, the Courts vs. legislative process). With people arguing that, even now, we could reduce opposition to abortion if we only overturned Roe.
Or something.
I just don’t see that “process” constituency lurking out there.
Frex, can you point to any group that would accept SSM if voted in, but just not when mandated by Courts on equal protection grounds?
SSM was voted in in Maine last year, not mandated by the courts. All the usual suspects rose up in revolt. Not only that, they used the same campaign manager and the exact same TV commercials that had served them so well in California.
JaniM: That seems to follow the pattern.
you feel it’s only right for the majority gets to decide who can and can’t marry?
The majority has been making that decision for centuries. I agree that gay marriage falls under the equal protection clause. That is a minority viewpoint and because, if imposed by fiat, the risk of a majority veto is heightened, perhaps significantly. And I question whether that risk is worth it for a near term resolution when the likely outcome in the foreseeable future produces the same result, only consensually. Which is better in a democracy.
But if you keep telling me I’m an idiot in relation to my own decision-making about my own life and things that affect me profoundly, eventually I will stop listening.
I do care a great deal about the people I’ve come to know here. The last thing I would ever do is call anyone, particularly you, an idiot. Nor would I or am I imposing any part of my views on your life. The issue of SSM is a societal one as well as a personal one. We are both members of the same society. I want SSM to be the law of the land, but I prefer that it be done in a way that the losers cannot say they were deprived of their own rights, as in right to vote, right to be heard, etc.
Process matters. The current process has a number of indicia of being counterproductive in how the end is achieved.
That has typically been the pattern for some number of years now, yes. Good of you to come around.
You are still having trouble grasping the concepts of “rights” and “judicial review”.
Rights exist independent of the “majority view”. That’s what makes them “rights” rather than “privileges” that can be extended or withdrawn by popular whim. Full stop.
The question at the heart of this conflict is: in the American legal system, who has the legitimate authority to determine what is a constitutional right and what is not?
Fortunately, there is an answer to this question provided in the Constitution itself:
Congress, in accord with its Article III powers, established the judiciary’s authority to review laws for their constitutionality in the Judiciary Act of 1789.
In short: Congress has the authority to establish or recognize a constitutional right through the amendment process, and the judiciary has the authority to review legislation for its constitutionality. Both are entirely legitimate processes.
All else is distraction. If it is a right, what the majority thinks is irrelevant to the judicial review process.
And as long as you see fit to continue making bad arguments premised on ignorance of the law and a demonstrated belief that the butthurt of people who don’t like gay marriage is more important than the people being denied the right to marry, expect to continue having your arguments destroyed as the nonsense that they are.
Catsy,
Please, keep the tone civil. Come on ObWingers, drain a bit of the invective out of this.
I want SSM to be the law of the land, but I prefer that it be done in a way that the losers cannot say they were deprived of their own rights, as in right to vote, right to be heard, etc.
See, there actually are things they actually don’t have the right to vote on. That’s the whole problem, here.
I mean, if I proposed that I am being deprived of my right to vote on whether it’s OK for people to poop in your yard, you’d think I was nuts, right?
The issue of SSM is a societal one as well as a personal one. We are both members of the same society. I want SSM to be the law of the land, but I prefer that it be done in a way that the losers cannot say they were deprived of their own rights, as in right to vote, right to be heard, etc.
As as been pointed out (here we are on the merry-go-round again and still), there is a subset of the losers who will say they were deprived no matter what. A lot of them are the same losers who think that they are an oppressed minority because some people prefer to say “Happy holidays” instead of “Merry Christmas,” the same losers who think that if English was good enough for Jesus, it’s good enough for Americans, and the same losers who are screeching about their rights and tender feelings being trampled on by a “mosque at Ground Zero.”
Race is still a divisive issue in this country almost sixty years after Brown and forty-odd years after Loving. Not to mention 145 years after the end of the Civil War. People get tired of waiting. People aren’t saints or perfectly modulated robots programmed to seek change in perfectly modulated ways and at a perfectly modulated pace. People are just people.
To repeat in response to repetition (which is itself a meta-repetition), we all already know that honey draws more flies than vinegar. I don’t care any more. I’m tired of waiting. And I think it matters more to stand up and say that, out loud and as many times as I have to, than to keep half-hiding in the closet and pretending everything is just ducky the way it is.
And anyhow, who needs flies?
It’s my world too.
Remember what Frederick Douglass said: power concedes nothing without a polite request.
What part of my reply, specifically, was unacceptably uncivil?
The part briefly responding to McK’s sarcasm with my own?
The part noting that McK demonstrably does not understand what “rights” or “judicial review” actually are?
The part citing the Constitution in support of my position?
The part responding to McK’s statement of intent to continue commenting as he has by noting that if that means he’s going to continue to make bad arguments premised on ignorance of the law that I’m going to continue calling them out as such?
I suspect it’s the latter, since aside from a line of pretty mild sarcasm that’s the only thing that comes close to being uncivil–and after two pages of having him repeatedly ignore the same points that demolish the entire premise from which he’s arguing, that was more restrained than he deserved.
Come on.
McK has been making the same bad argument for two pages of comments–indeed longer, since this isn’t the first time we’ve gone over this topic.
Somehow over the course of dozens of replies spread over multiple threads on the subject, he has managed to magically fail to process the entire concept of what a “right” is despite having it repeatedly called out, continues to pretend that the entire concept of judicial review just doesn’t exist and isn’t legitimate, and has based his entire “process” argument on the foregoing willful ignorance–an argument that amounts to an assertion that the butthurt of people who think gay marriage is icky deserves more deference than the pain caused to the countless gay couples who are being deprived of the simple right to marry the person they love.
At what point does it become okay to call out a bad faith argument for what it is?
Remember what Frederick Douglass said: power concedes nothing without a polite request.
As far as I can tell, power concedes nothing without a fight.
Not everybody gets my humor. (May not be safe for work if you’re an at-will employee.)
Hogan, I sometimes don’t get humor even when I trip over it, but in this case it was my ignorance that tripped me up. Having read the quote, I can console myself about my ignorance by noting that great minds think alike. 😉
And the passage is so apropos of this thread that I think it deserves to be entered into the record:
great minds think alike.
I know, right? You knew the answer without looking it up in the back of the book.
August 9th, 2010
BREAKING NEWS: Georgia Governor Sonny Perdue signed into law the Georgia Slave-Owner Compensation and Slave Emancipation Act of 2010 today. The Act will formally end slavery in the Peach state once all current living slaves have passed away.
“While I’m very proud of the results of the legislation that I’ve signed today, I find greater pride in the process that led to its enactment. The Compensation and Emancipation Act follows in the tradition of compromise that forged this great nation, and has something for all sides. While all slaves presently living will die slaves, they will be secure in the knowledge that any of their children, grandchildren, and great-grandchildren born after today’s effective date will be free and only required to pay 20% of their gross wages for life to their ancestors’ former owners. Current Slave-Owners, while losing the right to keep for themselves the descendants of their current slaves, will receive a lump-sum payment compensating for their loss by the end of this week, along with the aforementioned 20% payment in perpetuity.
“To those critics who say that 150 years after this nation barely avoided Civil War is too long to wait to emancipate Georgia’s slaves, I say we did it the right way, for which there is no substitute.”
The law leaves Lousiana, Alabama, Mississippi, and South Carolina as the only states to permit slavery.
Slaves were not available for comment, being, you know, slaves.
Catsy: the part where you called his arguments nonsense, based on ignorance.
“John Thullen, please tone it down a bit.”
Sebastian, that’s the closest you’ve ever come to saying “What John Thullen said.” 😉
Not that I didn’t mean every word I wrote.
Well, if it’s any solace, Bird Dog is posting again at Redtripe, most notably “A Moderate GOP Plank”.
No obvious death threats or Second Amendment remedies directed his way in the comments, but I think a few referred to him as “progressive” and various other references to his mother, which knowing Bird Dog, raised a stark choice between some kind of self-purification rite involving a fillet knife, and returning to Obsidian Wings to reach an accomodation with Jes, from whose tongue-lashings, after all, no one ever died.
UGH: I like your style.
Catsy: the part where you called his arguments nonsense, based on ignorance.
Actually, I’d say that’s the kindest possible interpretation, since otherwise one would have to assume that McKinney is not ignorant and knows he’s talking evil nonsense. It would be rude to assume McKinney is actively malevolent: isn’t it politer to assume he’s talking nonsense because he knows nothing and understands nothing?
with Jes, from whose tongue-lashings, after all, no one ever died.
Heh. Only le petit mort. And definitely not Bird Dog. 😉
Catsy: the part where you called his arguments nonsense, based on ignorance.
How to parse this? Whose “ignorance”?
Calling an argument “nonsense” would seem to be the bare minimum of incivility required to make a discussion interesting, by the way.
–TP
Scott Lemiuex
weighs in
on the backlash debate.
His arguments are nonsense, and they are demonstrably based on either ignorance or dishonesty. This is demonstrated by his repeated assertion that judicial review is not a legitimate route for recognizing a constitutional right and his continued misapprehension of what it means for something to be a right.
We weren’t debating whether or not SSM is a right. We were debating whether or not a constitutional right can be abridged by plebiscite, and whether or not it is the proper role of the judiciary to interpret the Constitution of the United States, up to and including recognizing the existence of unenumerated rights.
This is not a matter of opinion–they are questions for which there are discrete, authoritative answers in American con law. And it is a question of fact about which McK has repeatedly and exhaustively demonstrated either ignorance or willful dishonesty.
I’ve been commenting here for close to eight years, and my understanding has always been that we are free to attack the arguments of others, but that when it is unclear whether an argument is dishonest or simply ignorant of facts, we should presume good faith. That is, frankly, getting harder and harder to do here given how many times we’ve corrected the same basic facts, but it is why I presumed ignorance rather than accuse McK of dishonesty.
with Jes, from whose tongue-lashings, after all, no one ever died.
Heh. Only le petit mort. And definitely not Bird Dog. 😉
This may be the dirtiest thing ever said on ObWi!!
I’m happy to serve as the straight man who is Jes’ straight man.
I came back to read what was going on here since I saw there had been an uninterrupted series of comments. Interesting.
Since the good old ‘state’ has created numerous rules to govern what are often life long relationships joined voluntarily by two persons and these rules affect many parts of our daily lives and they use marriage as a defining contractual component or as a defining rule in government law at various levels, marriage as a religious rite must yield to marriage as a civil right.
My personal feeling is that traditional marriage had already fallen a long way in the last century as a religious vow, mainly caused by emerging secular and civil influences.
If they want it to be, in some way, unique, religions must find a different way to distinguish what a union of two people within their religion is that makes it different from marriage governed by civil rights in our society.
Mormons, as an example, accomplish exactly this by having a ‘temple marriage’ as an ordinance for a man and a woman. Perhaps some other religious organizations do as well.
“SSM was voted in in Maine last year, not mandated by the courts. All the usual suspects rose up in revolt. Not only that, they used the same campaign manager and the exact same TV commercials that had served them so well in California.”
Did they change their Constitution in response?
No, they did not.
So, this appears to offer evidence for the intensity argument. Legislative decisions get less intense counter-reaction traction with the general public.
“Like abortion: the argument being that opposition to abortion would be significantly less if not for Roe v. Wade (meaning, the Courts vs. legislative process). With people arguing that, even now, we could reduce opposition to abortion if we only overturned Roe.
Or something.
I just don’t see that “process” constituency lurking out there.”
People who disagree don’t resist adverse decisions as much when they feel they were listened to as part of the process. You see it all the time, in all sorts of areas, employee reviews, parental dealings with their children, people who want to understand the ‘why’ of a break-up, it is a pretty common human thing. You see it everywhere really.
Did they change their Constitution in response?
No, they did not.
Maine does not allow amendment by citizen initiative. It requires either a Constitutional convention (not bloody likely) or a 2/3 vote of both houses of the legislature.
Since the legislature had just passed a marriage bill by roughly 60-40 in favor, it would have made no sense to go that route.
Conversely, Maine has a fairly low bar for people’s vetoes or citizen initiatives that are not proposing Constitutional amendments.
Me: it would have made no sense to go that route
Or to put it more relevantly, a Constitutional amendment was not a viable option in Maine, given the composition of the legislature. I will be very surprised if that changes any time soon, especially since so many Republicans seem bent on running too far to the right of the average voter.
People who disagree don’t resist adverse decisions as much when they feel they were listened to as part of the process.
Wait a minute. The whole POINT of a trial is that both sides get to present their case. It’s not like judges issue decrees out of the blue.
So it seems that people who complain about “the process” want something more than to be “listened to”, doesn’t it?
Maybe what they mean is that they, personally, did not get to present their side’s case? Maybe they think that Judge Walker would have ruled the other way if only he had listened to them individually? Nah. Being “listened to” surely means nothing less than putting minority rights up to a popular vote.
Just a word to the wise, though: The Rich are an even smaller minority than The Gay.
–TP
A trial is not part of the political process. Citizens don’t get input, legislators rarely get input, there really isn’t any input. There is almost never the give and take that happens in legislation. The judge rules, and that’s it.
… The judge rules, and that’s it.
The judge rules on a CASE. A dispute between two litigants. The plaintiff says: judge, defendant has violated my Constitutional rights. The Defendant says: no I didn’t, your honor. The judge cannot declare a tie IN THE CASE. He rules because HE HAS TO.
Are you suggesting, Seb, that judges should NOT HEAR certain cases so as to avoid trumping the “political process”? Or that they should hear the cases but not “listen to” certain claims, e.g. claims of Constitutional rights? Or what?
Really: what would have been the correct thing for Judge Walker to do, in your opinion?
–TP
What is it about the process of judicial review that is so offensive to you? Sebastian, you’re a trained lawyer with more knowledge of the law in one brain cell than I have accumulated, and I find it impossible to believe that you’re unaware that judicial review is simply one of the many checks and balances in our system–but from the way you and many other conservatives talk, you’d think that it was some kind of end-run around the process, when it is just one part of the process. It is no less legitimate–no less valid–than any bill, referendum, law, or initiative.
There are constraints within which the courts must operate, just as there are constraints with regard to what powers the president has or what Congress can do. If you think Judge Walker’s reasoning is flawed in some way, you’re free to raise those issues–but please stop going on about the matter as if there was something illegitimate about pursuing one’s rights in a court of law rather than through legislation.
Oh, and what Tony said.
Sebastian: “There is almost never the give and take that happens in legislation.”
Individual rights are immune from the “give and take” of popular will. That’s the whole point of the Bill of Rights, and of vindicating individual rights in a courtroom. This concept used to be taught in basic high school civics, but conservatives (even lawyers) can’t get their minds around it?
I think what Sebastian is really getting at is how the general populace perceives the judicial process as opposed to direct voting or legislative deliberations by elected representatives, so there is no necessity to assert that the judge ruled improperly to make his argument if I understand it correctly.
The problem I see is that Sebastian is relying on this:
People who disagree don’t resist adverse decisions as much when they feel they were listened to as part of the process. You see it all the time, in all sorts of areas, employee reviews, parental dealings with their children, people who want to understand the ‘why’ of a break-up, it is a pretty common human thing. You see it everywhere really.
As I see it, people often do more readily accept outcomes they don’t favor if they think those outcomes were arrived at fairly. I also don’t think that that’s how SSM works for most of the people opposed to it. Often does not mean always. I think that most of the people opposed to SSM, who really don’t have nearly the personal stake in it that gays and lesbians do, just don’t want it regardless of how it comes about. To them it’s a moral issue that connot be right or even acceptable regardless of how it comes about.
Sebastian may disagree about that, but there comes a point where you have to recognize that opinions are sometimes not open to persuasion short of obvious, real-world demonstrations that those opinions are flawed (and sometimes not even then). So, short of alternate universes in which to test our cases of achieving SSM by different methods and to observe the reaction of opponents, we’re going to have to agree to disagree.
I simply do not accept one of Sebastian’s key assumptions, so I do not accept his argument, or at least not his conclusion.
As best I can tell, Catsy and Jes believe I am in bad faith, ignorant and constantly repeating myself because I have failed to turn over my king in the face of this seemingly incontrovertible argument:
And as previously noted upthread, the entire process argument is irrelevant anyway if marriage equality is in fact a right. If it is, then it is completely right and proper that the courts strike down the law as unconstitutional.
Catsy poses an if . . . then proposition, her error being the assumption that the if is a given, an established view by consensus. It is not. It is not self-evident that the fundamental right of a man and a woman to marry equates to the fundamental right of any two humans to marry, including specifically two people of the same sex. The states have significant leeway to legislate and regulate marriage. There are the obvious rights of a state to recognize, or not, common law marriages, to refuse to recognize polygamous marriages or marriages between brothers/sisters, parents/children, or cousins to whatever degree the state chooses (almost certainly subject to a rational basis analysis) and it is the province of the state to declare the age of consent and the terms and conditions under which a marriage can be dissolved.
After Loving was decided, subsequent SCt decisions affirmed sodomy laws and many states treated homosexual intimacy as a felony. One can hardly argue that, at any time in the history of the US, the notion of SSM was within the letter or intent of the constitution.
The reason for this is that what is gradually becoming the minority view of gay rights and homosexuality as a deviant human condition was then so universal a belief as to barely merit mention. Back in the day, the take on homosexuality was like the law of gravity. Plain and simple, the overwhelming conventional view across party lines was that homosexuality was an illness, an abomination, etc.
That view has obviously changed, but it has hardly swung 180 degrees.
So, even for members of the opposite sex, much less members of the same sex, marriage is not an unfettered fundamental right. Rather, as the law presently stands, it is, within confines defined by the state, a fundamental right only to the extent that the institution cannot be denied two adults of legal age who otherwise are competent to marry, on account of the two adults being of a different race. That is the current state of the law.
Catsy further believes, if I am reading through the invective accurately, that judicial review is the proper forum for determining whether SSM, subject to the otherwise state sanctioned and regulated institution of marriage, can or cannot be denied to same sex couples consistent with the equal protection clause of the 14th amendment. As a subsidiary notion, Catsy believes my concerns with process are also in bad faith, ignorant of the world as it is, etc.
The notion that the issue of SSM is solely within the province of the judiciary is not self-evident either. First, the underpinning is that a fundamental right cannot be the subject of popular will. Wrong. The amendatory process says otherwise. The more accurate statement is that a recognized fundamental right cannot be abridged by legislative or popular initiative, the devil being in the term recognized.
It is not the province of the courts to fashion fundamental rights out of whole cloth. The first line of any court’s analysis is the text and intent of whichever document is claimed to give rise to the right. The text of the equal protection clause bodes well for SSM, the intent of the document and the nature of federalism clearly enshrined in the constitution cuts the other way.
So, the if Catsy poses is an entirely contingent if and is by no means a constitutional given.
Further, the effect of the decision at hand is to override a plebiscite called for the specific purpose of overriding a judicial decision. In other words, the very essence of democracy, for good or for bad, is that ultimately it is the will of the people that must prevail. I freely concede that the people could do horrific things. Democracy carries with it no guarantee that wisdom will prevail, that true and objective justice will be done.
So, while I agree with the decision, while I agree that SSM falls within the equal protection clause, my view is a not yet a majority view. The majority, seemingly a slim majority if the polls are a reliable indicator (again, the if word) do not buy into this. What many Americans do buy into is is the right to vote. Collectively, the whole “fundamental rights thing is not up for a vote” notion is fairly hazy in the general body politic. Probably most would agree a law can’t be passed censoring debate or outlawing Scientology, but they probably couldn’t articulate the reason why they think this is so.
For a court to override a popular vote called on a specific question that remains very much a controversy is no small thing. Gay people rightly expect the majority to recognize them, gays, as citizens with the same rights as heterosexuals. The majority expects its voice, when a vote pursuant to law is called, to be respected as well.
Catsy and others criticize me for trying have it both ways. The easy thing at this site is to just agree with everyone. I’d get a lot more work done if I did. The ‘Equality Now!’ movement is substantively and procedurally risky. I realize this last sentence is repetitive.
Are you suggesting, Seb, that judges should NOT HEAR certain cases so as to avoid trumping the “political process”? Or that they should hear the cases but not “listen to” certain claims, e.g. claims of Constitutional rights? Or what?
The courts, including the SCt, routinely pass on questions that are “political”.
If you think Judge Walker’s reasoning is flawed in some way, you’re free to raise those issues
Really? In what forum?
MckT: I believe Catsy is male.
I had it wrong for awhile, too.
Carry on.
I’ve probably told this story here before, but since we’re all repeating ourselves….
This came from a friend of a friend who was down in the trenches of the very early attempts to get sexual orientation added to the civil rights law in Maine. After the legislature voted and the bill was defeated, a group of proponents were sitting in a pizza joint licking their wounds. The leader of the opposition came over all hail fellow well met, slapped one of them on the back, and said, “Nothing personal folks, just politics.”
Nice to have that luxury.
I’ve got an unusually busy day coming up, I don’t know if I’ll get time to try to articulate my reactions to the last few dozen posts…or, really, the entire thread. Meanwhile,
It’s my world too.
JT, thank you.
Catsy, all else aside, my apologies. Stupid of me to presume.
The leader of the opposition came over all hail fellow well met, slapped one of them on the back, and said, “Nothing personal folks, just politics.”
I do recall this. It was chickens**t, not that saying so isn’t redundant.
McT, you wrote
So, while I agree with the decision, while I agree that SSM falls within the equal protection clause, my view is a not yet a majority view.
but two comments later suggested there is no place to argue about Judge Walker’s reasoning
You know, it really comes off as concern trollish when you argue that you agree with the decision, and then complain that there is no place to take issue with it in the forum. It’s easy to get wrapped up in scoring points, but when you contradict yourself in the space of 10 minutes, it is really hard to avoid intimations of bad faith.
The courts, including the SCt, routinely pass on questions that are “political”.
They certainly do not pass on all political questions, or even most. They might on some, but that is in their discretion, which is exercised using only loose criteria.
Really? In what forum?
First of all, there is the appeals process, and upper court review. Walker’s decision is not ipso facto the law of the land. Also, in the Constitution amending forum.
People who disagree don’t resist adverse decisions as much when they feel they were listened to as part of the process. You see it all the time, in all sorts of areas, employee reviews, parental dealings with their children, people who want to understand the ‘why’ of a break-up, it is a pretty common human thing. You see it everywhere really
But the question is, is there a large group of citizens that feel one way about losses to their favored cause via judicial decisions, vs. legislative decisions.
I mean, the intensity of the Tea Party movement was something to behold, and that in response to Obama’s health care inititiave – a legislative push – as well as the stimulus bill – also a legislative push.
From that, you had prominent Republican governors, Senators and Reps blithely tossing about the prospect of secession.
Pretty intense. Also, not a judicial decision.
it really comes off as concern trollish when you argue that you agree with the decision, and then complain that there is no place to take issue with it in the forum. It’s easy to get wrapped up in scoring points, but when you contradict yourself in the space of 10 minutes, it is really hard to avoid intimations of bad faith.
It’s hard to win around here, that’s a fact. Catsy claimed that there is a forum for Seb to complain about the decision. I ask, “What forum?”. It was a question, not a complaint. Do you have an answer?
Bad faith is the default position of some people who don’t like being contradicted. It sidesteps the merits and substance of a discussion. You take issue with nothing I said, just dismiss it because, after misconstruing my question as a complaint, you then impose some notion of inconsistency between being ok with the decision and pointing out that the average citizen lacks standing to actually have input in the judicial process.
And I think, once again, we see the result in this thread of the improper framing of the “gay marriage” issue by proponents, IMHO. It seems to me the proper way to think about this is that (a) both the federal and state governments have conferred substantial benefits (as well as certain detriments) on people who obtain a marriage license; and (b) both the federal and state governments have imposed certain conditions on who may obtain obtain a marriage license. Given that (a) is not going to go away anytime soon, the question becomes, what kind of things can go into (b) without violating the constitution?
It seems to me that state institutionalized sex discrimination in benefit conferrals should be unconstitutional, hence two men/women can get married given (a) above. If the state and federal governments want to get out of the marriage business altogether and treat every person as an individual in, e.g., tax policy, I don’t think there is a constitutional bar to that either.
In sum, given the special privileges granted by the state to “marriages,” it has no business discriminating on the basis of sex in granting such privileges.
Ugh, Evan Gerstmann treats this argument at length in Same-Sex Marriage and the Constitution. As a non-lawyer, I found the book immensely helpful. It was going to press just as the Massachusetts decision came out, so it’s not up to date up to the last minute. But I’d be curious to see what anyone else thinks of it…who has time to read it.
First of all, there is the appeals process, and upper court review. Walker’s decision is not ipso facto the law of the land. Also, in the Constitution amending forum.
So we all file our own amicus briefs? Seb’s point is valid, the judicial process, particularly at the trial court level, allows for virtually no external input. At the appellate level, the court’s have discretion to allow an amicus brief. As you note upthread, the amendatory process is mostly theoretical (although if there is a risk of such, this hot button issue is as likely to go the distance as any).
marriage is not an unfettered fundamental right
Can anyone name me one unfettered fundamental right?
I thought that McK was talking about discussion on this board, Eric suggests that it is some sort of forum that operates in the judicial system. If it is the first, my comment stands, if it is the second and you are concerned that people, who you say you feel are fundamentally wrong on this issue, have not had a chance to weigh in on this issue and discuss Judge Walker’s reasoning, that strikes me as doubly concern trollish. I know that the ACLU often takes up causes that they fundamentally disagree with, but that is because they feel that a fundamental right is being taken away. On the other hand, you would take up a cause that is aimed at denying a fundamental right to minority, that you argue you disagree with, because, I presume, they have not gotten their say and they will feel better having vented.
I’m not going to claim that I know what is going thru your mind, but this reminds me of the various times when folks, upset about affirmative action, invoke the plight of Asian Americans, who often get left out because they do too well. Given that there is no movement to demand that Asian-Americans be given their fair share of college berths, invoking this is a way at arguing a point of view, but claiming it is not for you, but in response to observable facts on the ground.
This isn’t to say that SSM opponents and Asian-Americans share a lot, but it is to point out that you are arguing for a group that is not interested in building some consensus on the matter or interested in seeing that consensus move towards a different equilibrium. SSM opponents are not going to grant some sort of ‘well, I guess that we have to just agree to disagree’ idea to your claim that you are personally supportive of SSM, they are going to hope and pray that you see the error of your ways. Or view you as a tool in the hand of God. Either way, if you aren’t arguing in bad faith, you are being sorely deceived.
On preview, I’m still not sure if McK is discussing about the question of internet forums rather than appending some People’s Court to get the true view of the majority (invoking Seb makes it seem that he is complaining about this place, but the last sentence about ‘the average citizen’ seems to be about the latter).
I understand you don’t like being accused of bad faith, and my apologies if my observations of your juxtaposed comments came off as an accusation. My point is that when those comments are juxtaposed, it is really hard to avoid that assumption, so you may wish to rethink if you are arguing that the majority is not ready for SSM, so we should abandon it, or if the majority that you claim somehow needs its right to be heard protected from SSM supporters. But mixing the two arguments leads to exactly the kind of fireworks we have seen.
You argue that the label bad faith is just a tool to try and silence people who have contradictory arguments. When I see what I assume are bad faith arguments, I try (not always successfully) to simply ignore them, so these observations are to suggest that you are not really aware of how you are coming across rather than an accusation.
If you feel strongly about how we move what you perceive as the majority to a position more in line with fairness, we should be talking about what steps need to be done to make that majority change its mind. But if you can only focus on the negative, your comments are going to be perceived as bad faith, regardless of how pure your intentions are. That’s what comes across to me. I’ve simply pointed out the two threads of your argumentation really aren’t in synch. You can choose to do with that information what you will. But if you accuse me of trying to ‘silence’ you by pointing out why something comes across as bad faith, you are wrong, because I’m giving you the space to reply and explain.
What is it about the process of judicial review that is so offensive to you?
I can’t speak for Sebastian, but the typical conservative objections are (a) Roe v Wade, and (b) the Warren Court in its entirety.
I’m a lefty, so full Constitutional personhood for corporations, granted by judicial fiat after a generation of court appeals specifically seeking that result, is what gets up my nose. And that’s been around since, what, the 1880’s? You can only imagine the depths of my bitterness.
There are a number of ways that policy gets made in this country. Judicial review is one of them.
Sometimes you win, sometimes you lose. When you lose, you take your lumps and carry on.
And no matter what happens or how, somebody will be pissed off about it.
Health care reform — 100% legislative effort, no judicial review involved, and lots of folks are ready to shoot other folks over it. No joke, no snark, no exaggeration, that’s just a fact.
And the folks who aren’t inclined to start shooting as their first resort are using — wait for it — *the courts* to try to overturn the legislative result.
Sometimes you win, sometimes you lose. When you lose, big girls and boys suck it up and carry on.
I have no patience with the idea that the courts are somehow an inappropriate or illegitimate way to make and test public policy. It’s one of the available ways, and conservatives use it whenever it suits their purposes, just like everybody else.
There are a number of aspects of our Constitution that are, specifically and by design, un-democratic. Their purpose is to ensure that all parties’ rights and interests are guaranteed, even in the face of popular majority sentiment.
McTex,
You asked which forums, I mentioned them. Amending the Con ain’t easy, for sure, but them’s the breaks for groups that want to deny other groups the equal protection of the law.
It might frustrate them, but our Constitution is built with the intention of frequently frustrating the will of the majority (at least insomuch as that will manifests in attempts to deny the minority rights/equal protection).
Can anyone name me one unfettered fundamental right?
The right to believe.
The right to carry a child to term.
The right to notice and a hearing in a criminal proceeding.
But your point is valid. Pretty much anytime a right trespasses on another, it ceases to be protected. Withholding SSM rights is a trespass against gays. The converse is not true for heterosexuals.
McK: It is not self-evident that the fundamental right of a man and a woman to marry equates to the fundamental right of any two humans to marry, including specifically two people of the same sex.
What Ugh said: “In sum, given the special privileges granted by the state to “marriages,” it has no business discriminating on the basis of sex in granting such privileges.”
After Loving was decided, subsequent SCt decisions affirmed sodomy laws and many states treated homosexual intimacy as a felony. One can hardly argue that, at any time in the history of the US, the notion of SSM was within the letter or intent of the constitution.
As I understand it, in the 19th century, despite the First Amendment, many states had loyalty oaths intended to bar Catholic Americans from public office: some states had religious restrictions written into their Constitution: the US Constitution itself has a clause in it which presumes that slaves shall only be counted as 2/5ths of a citizen. Prejudice and discrimination have always affected the interpretation of what ought to be a solid basis for equality and civil rights for all: this is not a sound argument for insisting on enshrine prejudice and discrimination in law, and privileging the tender sensibilities of bigots over the rights of people directly, legally affected by denial of equality.
pointing out that the average citizen lacks standing to actually have input in the judicial process.
On preview, I’m still not sure if McK is discussing about the question of internet forums rather than appending some People’s Court to get the true view of the majority (invoking Seb makes it seem that he is complaining about this place, but the last sentence about ‘the average citizen’ seems to be about the latter).
LJ—“standing” is a legal term for the ability or right of an individual to intervene in or initiate a legal proceeding because he/she isn’t happy about something, e.g. ruling that the result of a plebiscite is unconstitutional and must be thrown out. “Forum” means a court, Congress, a state legislature or any other formal mechanism by which a citizen can get substantive relief. I was not referring to the right to hyperventilate here or elsewhere on a blog. Seb’s point is valid. There is no meaningful forum for an interested citizen to have input on a judicial proceeding. The ACLU takes cases for aggrieved persons, by and large. It probably files amicus briefs as well. Neither of those endeavors is at play here. Nothing about the absence of a forum in one comment relates to my attempts to address Catsy and Jes in another forum. I thought the phrase “judicial process” pretty much made that point. Apparently not.
I would also like to point out here that many/most of the opponents of same sex marriage are not motivated by abstract questions of judicial review. The core opponents are never going to be persuaded by anything, sometimes not even if their own child’s happiness is on the line.
Then there are a lot of other people who are the “mushy middle” for lack of a better term, who are persuadable, and many of them are motivated or informed by things that are, flat out, wrong.
Like the odious Proposition 8 commercials that were trying to scare people with “If gays get married, then the schools will teach your kids to be gay! OHNOES!” which complete crap. There’s also a fair number who are religious, but aren’t against gay marriage necessarily, but are afraid that their church might be forced to allow gay people to be married in it. Which isn’t the case, nobody forces Catholic churches to marry people who’ve been divorced, or anything like that.
A similar kind of thing happened last year in my mother-in-law’s Lutheran church, when the Lutheran church group decided to allow gay priests to be ordained. Being in the Georgia, there was naturally plenty of opposition here. They even started investigating changing which Lutheran umbrella organization to go under, by a one vote margin. But then a decent sized chunk of core anti-gay people broke off and started their own church with splinters from a couple other churches.
But a lot of their arguments were the same kind, about churches “forced” to take gay ministers (no, they select their own) etc. Lots of the opposition that’s softer relies on misunderstandings, people’s reluctance to change, general “icky” feelings, and outright lies.
There is no meaningful forum for an interested citizen to have input on a judicial proceeding.
I understand the point you’re making here, but at a certain point, it’s just gonna suck to be the “interested citizen”.
Sometimes you win, sometimes you lose.
And there’s not a lot we can, or would want to, do about that. Because judicial review is one of the ways that we test laws to make sure they are legitimate, according to our Constitution.
The strongest thing you can say against using the courts in this kind of way is that it’s bad political jiu-jitsu.
In other words, folks will be so upset by the fact that you used the courts rather than some other means, that they will create other forms of pain for you that will be worse than whatever you tried to address through the courts.
And that may, in fact, be true, but that is a political calculation that grown-up people can, and will, make, for themselves, of their own free will.
What Ugh said: “In sum, given the special privileges granted by the state to “marriages,” it has no business discriminating on the basis of sex in granting such privileges.”
Yep, this sums up my views on the discrete issue as well.
After Loving was decided, subsequent SCt decisions affirmed sodomy laws and many states treated homosexual intimacy as a felony. One can hardly argue that, at any time in the history of the US, the notion of SSM was within the letter or intent of the constitution.
As I understand it, in the 19th century, despite the First Amendment, many states had loyalty oaths intended to bar Catholic Americans from public office: some states had religious restrictions written into their Constitution: the US Constitution itself has a clause in it which presumes that slaves shall only be counted as 2/5ths of a citizen. Prejudice and discrimination have always affected the interpretation of what ought to be a solid basis for equality and civil rights for all: this is not a sound argument for insisting on enshrine prejudice and discrimination in law, and privileging the tender sensibilities of bigots over the rights of people directly, legally affected by denial of equality.
I am a bit rusty on the chronology here, but I am pretty sure that the doctrine of selective incorporation became operative in the ‘30’s. What you say is correct, up to a point, because your premise is distinguishable from SSM. Selective incorporation refers to a vehicle by which the Supreme Court gradually made aspects of the Bill of Rights, e.g. the First Amendment (which literally only limits Congress’ ability to pass proscribed acts), applicable to the states via the due process clause of the 14th Amendment. It was the 13th Amendment that abolished slavery. Your premise is that, because past injustices were remedied by judicial decision, so too is the prohibition against SSM subject to limitation. I am not saying your premise doesn’t have horse power. But, the counter argument is that, as respects slavery, the constitution was actually amended via the amendatory process, not a judicial decision. As respects loyalty oaths, the First Amendment, when incorporated into the 14th Amendment, clearly speaks to that. There is nothing in the plain text of the Constitution that serves as a specific injunction against discriminating against gays, save and except the equal protection clause, which in context, does not have the reach you and I would have it. To apply the equal protection clause to SSM, a court will have to distinguish and explain why past and current context is inconsistent with the plain language of the amendment. While that may seem easy enough for supporters of SSM, there are counter arguments that will surely be made and they are not frivolous.
On reread, the above is a bit disjointed. The shorter version is that most rights found in the constitution by judicial decision are referable either to other language in the document itself or, in the case of racial discrimination, the product of evolving jurisprudence over decades. No such analogue exists for SSM
McKT,
I was wrote my comment in response to your ‘what forum’ comment, so you might see why assumed that you were talking about this blog. It is interesting that you identify what is needed as a ‘forum’, which is not really a legal venue, but a place for public discussion, which come from the Latin for ‘marketplace’. Forums are not places were law is made or questions of fact are decided and no one has ‘standing’ in a forum as such, unless it is in the coin of public approval. We take Congress as a forum because it is the opportunity to debate and discuss, but only in that sense.
Taking you at your word, what you then are arguing for, is someplace where there is ‘open’ discussion and the majority opinion, which you feel you already know, can make itself known to all of us in the dark. Yet, as Boies pointed out in his dissection of Tony Perkins position, at some point, deciding what is fact and what is fantasy becomes important, and a “forum” is not the place that happens. Your desire to want a ‘forum’ suggests that you aren’t really concerned with the facts of the matter and are more concerned with the feelings of the majority. I leave it to you to decide whether that’s where you really want to be.
The strongest thing you can say against using the courts in this kind of way is that it’s bad political jiu-jitsu.
In other words, folks will be so upset by the fact that you used the courts rather than some other means, that they will create other forms of pain for you that will be worse than whatever you tried to address through the courts.
And that may, in fact, be true, but that is a political calculation that grown-up people can, and will, make, for themselves, of their own free will.
Which is the point I made initially and which I’ve continued to try to make, well past the point of diminishing returns. Which is my fault, no one else’s.
The core opponents are never going to be persuaded by anything, sometimes not even if their own child’s happiness is on the line.
Then there are a lot of other people who are the “mushy middle” for lack of a better term, who are persuadable, and many of them are motivated or informed by things that are, flat out, wrong.
Exactly.
Technically, the Confederate slaves were freed by executive fiat, not judicial fiat.
But since at that point, the South had already backlashed about as far as possible to Lincoln’s election, by starting a war with the rest of the country to defend slavery.
I would also like to point out here that many/most of the opponents of same sex marriage are not motivated by abstract questions of judicial review. The core opponents are never going to be persuaded by anything, sometimes not even if their own child’s happiness is on the line.
Or, to put it another way:
“there was precisely zero groundswell of conservatives saying, anywhere legislation recognizing marriage equality passed, “I think this sucks, but it’s clearly the will of the people.” Legislative action gets challenged; executive action gets challenged; judicial action gets challenged. There is no path to marriage equality that conservatives have shown themselves, as a group, willing to respect, and no reason to grant credence to all the cries about “if only X” when it’s Y this time, and “if only Y” when it’s X, and so on.”
What Bruce Baugh said. McK, I’m not going to accuse you of bad faith, but the facts are against you on this.
To expand on my previous comment slightly: I don’t think McK is arguing in bad faith. I do think he’s attributing a level of good faith to the anti-SSM movement that is simply unwarranted by the facts on the ground.
A note re: “bad faith.”
I would like to point out that we are discussing a topic and, in the course of that discussion, due to the imperfect medium, sometimes thoughts are not clearly communicated or interpreted.
Also, sometimes (one hopes) thoughts and arguments are refined by the back and forth itself, or evolve through the course of a discussion.
Thus, I would prefer it if people held fire on charges of bad faith and let the discussions take their course with some level of understanding and tolerance to letting the arguments play out and be clarified, corrected and otherwise modified.
But that’s not for you or me to decide.
That’s the whole point of this exercise, and the thing I keep trying to drill into you. Your agreement is not necessary in order for it to be a right, and your agreement is not what I’m seeking.
What I am seeking is for you to acknowledge the incontrovertible fact that it is the role of the judiciary, as allowed by the Constitution of the United States and enacted by Congress, to review laws for their constitutionality and identify, as necessary, where they conflict with enumerated or unenumerated constitutional rights. Period.
This is not a matter of opinion. It is the law. And your entire collection of arguments about ignoring plebiscites, popular will, and the established consensus rely on pretending that this is not so. Every last one of those arguments rests on the presumption that constitutional rights are in any way dependent on some kind of arbitrary consensus, or how many people agree that they are a right.
I’m not demanding that you agree with me on SSM. I’m insisting that you are not entitled to your own set of facts with regard to who is empowered to recognize constitutional rights.
The core opponents are never going to be persuaded by anything, sometimes not even if their own child’s happiness is on the line.
Then there are a lot of other people who are the “mushy middle” for lack of a better term, who are persuadable, and many of them are motivated or informed by things that are, flat out, wrong.
Here is the rest of what Ugh said. Which I agreed with and which is a part of my initial comment. To reiterate, views are changing. In time, a firm majority will support SSM. The minority won’t give up until it is political death to continue with their bigotry and then they will do what they can below the radar screen. But not all opponents have made a conscious decision to fight SSM. For lack of a better concept, they are ignorant and on auto pilot.
McK quoting Russell: …And that may, in fact, be true, but that is a political calculation that grown-up people can, and will, make, for themselves, of their own free will.
McK: Which is the point I made initially and which I’ve continued to try to make, well past the point of diminishing returns. Which is my fault, no one else’s.
McKinney, it has been clear for a long time that you agreed with Russell’s first two paragraphs (which I didn’t re-quote for what I hope are obvious reasons). It has been far from clear that you agree with the third. I went to bed gnawing on this last night, and liberal japonicus clarified it (thanks, lj!) this morning.
The underlying point of the campaign for SSM is not SSM, it’s the well-being and happiness of the people who would benefit from the right to get married.
It’s one thing to care about SSM as a matter of abstract principles of equality and Constitutional law, it’s another to care about SSM as a matter of the well-being of actual human beings. (I think these concerns can exist separately from each other.)
If you care about SSM for the sake of the people it will help, but you repeatedly and continually keep konking us over the head with the fact that we’re going about it all wrong, and in particular that the way we’re going about it doesn’t take sufficient account of the feelings of our opponents, then it starts to feel like
1) You care more about our opponents’ feelings and sensibilities than about ours, and
2) You don’t in fact respect us as grown-up people who can make our own political calculations, because we have said a gazillion times that our calculations come up with a different answer from yours, and you continue to just repeat yours.
Once, in a horribly messy relationship/household situation, one of my compadres said, “You’re pushing too hard. Do you want this to work or not?”
A very loaded question, from a lawyer I might add. It had taken me about twenty years to be able to see behind the loading, and reframe the terms and the situation and the loading in a way that honored my right to see the world out of my own eyes.
I said, “From my point of view, I have been bulldozed and knocked flat to the ground. I don’t think trying to get up and stand on my own two feet is pushing too hard. And as for whether I want it to work or not, it depends on what ‘it’ is.”
Along with Frederick Douglass, I am claiming the right to try to stand up again after spending much of my life bulldozed in the sense of having to live either in the closet or in fear. It is up to me — it is my calculation about risks to myself — whether to try to stand up again before I am 100% sure that the bulldozer driver is still behind the wheel.
McKT, IANAL and I’m a bit out of my depth, but it seems like you are making the umpire’s argument: it ain’t a strike until I say it’s a strike.
You say that
“The more accurate statement is that a recognized fundamental right cannot be abridged by legislative or popular initiative, the devil being in the term recognized.”
Do you deny that a fundamental right can be recognized by the courts? Now, I agree that SSM has not yet been recognized as a fundamental right. However, Interracial Marriage was not recognized as a fundamental right until Loving. I assume you agree that Loving was decidedly correcly. Ergo, a judicial decision recognizing SSM as a fundamental right would also be correct.
“It is not the province of the courts to fashion fundamental rights out of whole cloth.”
What does this mean? What was it that the court did in Loving, if not fashioning a fundamental right? Would a right to SSM be fashioned out of “whole cloth” if it is based on the Equal Protection Clause?
“So, while I agree with the decision, while I agree that SSM falls within the equal protection clause, my view is a not yet a majority view.”
Once again, the only majority that is significant in determining whether an issue falls within the Equal Protection clause is a majority of the Supreme Court.
You have not responded to any of my prior posts asking you to illustrate how this issue is any different from interracial marriage.
1) You care more about our opponents’ feelings and sensibilities than about ours, and
I care about a consensus because, lacking a consensus, if the SCt goes with the trial court, the level of resentment, backlash and anger will be significantly ramped up over what it would be otherwise. I care a lot about bringing people around. IMHO, it’s best for all concerned and takes a lot of the wind out of the “bitter ender” bigots’ sails if, at the end of the day, they are outvoted rather than on the wrong end of a 5-4 decision.
2) You don’t in fact respect us as grown-up people who can make our own political calculations, because we have said a gazillion times that our calculations come up with a different answer from yours, and you continue to just repeat yours.
While I would characterize my positions as mostly responsive to others’ statements, I have a great deal of respect for most of the people who post here and I certainly respect anyone’s right to assess their own interests and act as they see fit.
Julian,
Do you deny that a fundamental right can be recognized by the courts? Now, I agree that SSM has not yet been recognized as a fundamental right. However, Interracial Marriage was not recognized as a fundamental right until Loving. I assume you agree that Loving was decidedly correcly.
Not at all. Fundamental rights are identified and expanded by the courts routinely; however, to distinguish Loving and SSM, the fundamental right identified in Loving was for a man and a woman to marry. That right existed in state law. What Loving held was that the pre-existing fundamental right of a man and a woman to marry could not be denied to a man and a woman of different races. The fundamental right was expanded to include race. Yes, Loving was decided correctly.
“It is not the province of the courts to fashion fundamental rights out of whole cloth.”
What does this mean? What was it that the court did in Loving, if not fashioning a fundamental right? Would a right to SSM be fashioned out of “whole cloth” if it is based on the Equal Protection Clause?
First, what does creating something out of whole cloth mean? It means making something out of nothing. It’s an expression common among trial lawyers–at least trial lawyers in Texas. A whole cloth creation of a right would the opposite of, for example, the right to free speech, which plainly and expressly exists. I am now restating what I tried to say earlier. On the continuum between whole cloth and an express right, there are inferred or complimentary or implied or extended readings of the constitution that lead to or away from additional or expanded rights. SSM is on that continuum. It is probably a bit closer to the whole cloth end, because it requires a reading of the equal protection clause totally out of context with a vast body of law and tradition that run counter to SSM. Still, the equal protection argument has plenty of heft. The plain language of the clause is hard to get around, even if it hasn’t been expressly addressed in a modern context with a modern understanding of human sexuality. Clear as mud? Probably. That’s me, not you.
Once again, the only majority that is significant in determining whether an issue falls within the Equal Protection clause is a majority of the Supreme Court.
Yes and no. Yes, the High Nine will make the final call on the case we’re discussing. The legitimacy of that decision at this time, however, because it is made outside the democratic process, will be IMHO severely undermined, producing all the bad stuff I’ve previously raised. My hopefully somewhat informed guess is that ten years hence, a different SCt could do what is now being contemplated with a lot less fallout. Again, I’m repeating myself.
You have not responded to any of my prior posts asking you to illustrate how this issue is any different from interracial marriage.
I’ve tried to in other comments. Basically, Loving was in a long line of cases building off of disparate treatment on account of race. There was precedent for Loving and Loving was limited to a one man/one woman marriage that was otherwise available to everyone except African-Americans marrying outside their race (or with caucasions, I’m a bit hazy) IIRC. SSM was not on the radar screen then in any real sense. Marriage then and since has been defined by nearly every state and federal legislature to be one man/one woman. The analytical gap between the existing paradigm and SSM is much broader than man/woman, black/white. It’s not an insurmountable gap, but it’s still there. So, I guess my answer is that Loving offers some support for SSM, but the core of any decision will have to be pretty much the plain language of the equal protection clause.
McKinney: What you seem to be missing is this.
Is the outrage of the bitter enders really worth the suffering of the people who are denied the chance to see their sick partner, or to declare their love to the world? Should somebody be told they can’t put their relationship on the same level as other people’s, just to protect the feelings of the dead-enders? Or, more money-oriented, to share health insurance, tax breaks, and all the other civil benefits of marriage?
Also at question is your assertion that a judicial ruling will create more backlash than a legislation. Examples have been provided of legislation that produced even more backlash (civil rights, health care), judicial decisions that were more controversial but produced more backlash, and the way the same kind of backlash has been created by the opponents of same-sex marriage, no matter how people went about it.
Those are the two primary difference I see that people have with your backlash claims, and I haven’t seen you address them very well, if at all.
IMHO, it’s best for all concerned and takes a lot of the wind out of the “bitter ender” bigots’ sails if, at the end of the day, they are outvoted rather than on the wrong end of a 5-4 decision.
I think what people have been trying to get through to you is that “all concerned” includes all the gay and lesbian people for whom this has a direct affect on their lives — as opposed to, just for example, you, and me, for whom nothing changes no matter how this plays out.
So for you, or me, to decide what’s best for “all concerned” starts to sound a lot like concern trolling, and white male privilege, and paternalism and a whole lot of other stuff that GLBT people are probably sick and damned tired of hearing by now.
Concerns about “process” remind me of a joke so ancient that it featured in the 1931 movie Ninotchka — as an already-ancient joke.
A man at a restaurant asks the waiter for a cup of coffee without cream. The waiter returns a few minutes later and apologizes: “I’m sorry, sir. We are out of cream. Can it be without milk?”
If you chuckle at that joke, you probably see its relevance to this business about “process” versus “substance”. If you don’t chuckle, you’re probaby a female Soviet commissar like Greta Garbo.
–TP
McKT, thank you for responding so thoroughly; I promise I did read the other comments, but I did not think I had seen you address my questions. I am sorry to make you repeat yourself and I will try not to do so again.
I do know the expression creating out of whole cloth, but I clumsily meant to be asking rhetorically, as a way of showing disbelief. I agree that there is a spectrum between whole cloth and completely grounded in the language of statute, I just thought SSM was sufficiently logically inferable from the Equal Protection clause that the phrase “whole cloth” was thoughtlessly dismissive. I apologize, I am not the kind of oaf you thought; I am a different sort of oaf.
“Yes, the High Nine will make the final call on the case we’re discussing. The legitimacy of that decision at this time, however, because it is made outside the democratic process,”
My girlfriend took con law with a professor who thinks that the S.C. is, contrary to apparently popular belief, not countermajoritarian, and that they basically try to make decisions that the public supports. I haven’t read his book on that view makes some sense, especially since the S.C. doesn’t have an enforcement arm.
However, what you say in the immediately above quote seems like a false distinction, because every S.C. decision is made outside of the democratic process; this would/will be no different. However, that’s nitpicky, and I see your point about a potential backlash/uproar, I merely disagree that the uproar’s intensity, duration, and significance.
Here’s what I take to be the plain language of the EP clause:
“nor deny to any person within its jurisdiction the equal protection of the laws.”
I know that “plain language” is a tricky phrase, due to wildly different interpretations of it, but I do not see how
“The analytical gap between the existing paradigm and SSM is much broader than man/woman, black/white.”
What analytical gap are you referring to? Do you mean claims that SSM does not produce biological children and therefore has no compelling interest in being protected? Compare that with sterile couples. Please do not elide over this point, because it seems to me your only cited constitutional argument (you made many pragmatic and consequentialist ones, and counterfactuals are hard for me). I do know that you agree that the EP clause encompasses SSM, but I do not see any gap at all, and I have not yet read a case for such a gap that was consistent with secular government. Can you provide one or link to it?
McKinneyTexas, I would encourage you to re-read Dr King’s Letter from a Birmingham Jail (paraphrased by Jesurgislac in this thread 4 days ago).
USian homosexuals should no more wait for a popular majority to recognize their rights than USian blacks 50 years ago. The calls to go slow or to eschew specific non-violent tactics are no more just at this time than in Dr. King’s time. The “tragic misconception of time” — that that progress is somehow inevitable — is no more true now.
Letter from a Birmingham Jail dramatically changed my thinking on marriage equality from somewhat-squishy support to strong support.
Is the outrage of the bitter enders really worth the suffering of the people who are denied the chance to see their sick partner, or to declare their love to the world? Should somebody be told they can’t put their relationship on the same level as other people’s, just to protect the feelings of the dead-enders? Or, more money-oriented, to share health insurance, tax breaks, and all the other civil benefits of marriage?
The very first thing I said, way back when, was if I was writing the law, none of this would be necessary. I have tried to distinguish between two, and possibly three groups of people who would likely backlash.
Group 1–the Bitter Enders. Screw them. You’ll never make them happy.
Group 2–those who just don’t yet get it. This is the growing group.
Group 3–people who aren’t on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part. The disagreement is on means, not the end.
I care about Groups 2 and 3, for all of the reasons previously stated. I could amplify, but probably wouldn’t add much that is really new or change any minds.
Also at question is your assertion that a judicial ruling will create more backlash than a legislation. Examples have been provided of legislation that produced even more backlash (civil rights, health care), judicial decisions that were more controversial but produced more backlash, and the way the same kind of backlash has been created by the opponents of same-sex marriage, no matter how people went about it.
Backlash is unavoidable, to some degree. However much there is will be loud and ugly and will get a lot of play in the media. If SSM is made the law of the land via fiat, the cry will be “Gays don’t respect our democracy! Gays short circuited the electoral process! Blah, blah, blah.” It will resonate a lot more than getting their (SSM opponents) asses kicked in a fair fight, or even by judicial fiat once a good piece of the country is on board with SSM/CU.
The civil rights example, I think, supports my argument. In addition to the SCt, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed. Within a couple of years, even douchebag Wallace had to change his tune from outright racism to fussing about “busin’ little school chillin”. It meant the same thing, but the legislative stamp took much of the wind out of the ‘blame the courts’ argument (that was a busing issue) and the dialogue, the conversation changed in fairly short order.
But McTex, how big is Group 3 really?
To repeat myself, I know of very few individuals in Group 3 (none actually), and I know of no groups of people in Group 3.
And I certainly know of no groups in Group 3 that are large enough to have an impact on this issue.
Simply put, there is no big “process” constituency out there, but rather opponents that use the “process” argument to shroud their opposition in more exalted language/concept.
I think what people have been trying to get through to you is that “all concerned” includes all the gay and lesbian people for whom this has a direct affect on their lives — as opposed to, just for example, you, and me, for whom nothing changes no matter how this plays out.
So for you, or me, to decide what’s best for “all concerned” starts to sound a lot like concern trolling, and white male privilege, and paternalism and a whole lot of other stuff that GLBT people are probably sick and damned tired of hearing by now.
Phil, I was expressing an opinion, not deciding anything for anyone. The Prop 8 decision was a big deal. It merits discussion. The option is say nothing, say something and retreat, or take heat. I am fine with heat. Yes, it’s a lot easier for someone with no direct stake in the fight to counsel patience. FWIW, I make my living giving advice to people who have to live with the result. How many times do you think I’ve had clients begin a sentence, “That’s easy for you to say . . .”? To me, what’s patronizing is to say, “Yes, it’s been awful and this is such a happy day. Let’s celebrate.”
There was more than just the matter of a few years time on the Civil Rights act. There were judicial decisions, massive marches on DC, civil disobedience, the National Guard being sent in to enforce order and police and National Guard sent to protect schoolchildren (Norman Freaking Rockwell did a painting of it!)
As for if the matters of process will “resonate” more than hysterical lies about “schools will have to turn your kids gay and gay people will invade your church and force you to marry box turtles”, it looks like we’re going to have to agree to disagree, because I see no signs that the “judicial fiat” stuff is anything other than just one more fig leaf to hide behind.
Group 1–the Bitter Enders. Screw them. You’ll never make them happy.
Group 2–those who just don’t yet get it. This is the growing group.
Group 3–people who aren’t on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part. The disagreement is on means, not the end.
We agree about Group 1. I just don’t see Group 2 or 3, regardless of how big or small those groups are, making that big of a marginal stink over process. Whatever additional backlash there would be, if any, would not outweigh, by a long shot, the benefits of a judicial decision in favor of SSM, IMO. We disagree on that, I suppose. That’s about it, really, when you boil it all down. I wrote a more expansive comment this morning in response to Sebastian making the same point, but that’s it in a nutshell. I don’t just buy your premise, and there’s really no way to definitively prove or disprove it. End of story.
USian homosexuals should no more wait for a popular majority to recognize their rights than USian blacks 50 years ago. The calls to go slow or to eschew specific non-violent tactics are no more just at this time than in Dr. King’s time. The “tragic misconception of time” — that that progress is somehow inevitable — is no more true now.
I read it. Thanks for the link. A point Dr. King made was that negotiations would have been the right thing, but that the Birmingham gov’t wouldn’t negotiate at all and the merchant community lied.
The America of 2010 is not the Alabama of 1963. Houston, Tx has a gay mayor. No one even notices. Dr. King was addressing the issue of why direct action was necessary: because all else had failed and there was systematic violence and oppression orchestrated by the gov’t itself against African Americans. Is that a fair comparison of the status of gays in the US in 2010?
I am fine with heat.
Indeed you are, sir. You take a pounding with good grace.
Well played, McK.
and there’s really no way to definitively prove or disprove it. End of story.
Exactly–it’s all forecasting.
elm:
I agree with you about MLK. But look what happened to him.
regarding concern:
The best, most obvious example of a concern troll (I just looked up “concern troll” because I’m clueless about so many conventions on the internet) was a fellow 7th grader (I was 12; he was 16) too many years ago.
Let’s just say he had been held back a few times. Very clever he was, but by the time junior high school rolled around, the school district had decided to give up and let him continue uninterrupted until graduation — an event we shared — he was 21 at the time, still four years older than me.
Dr. Tranquil (yup), a wonderful Principal told this kid’s story (Richie was in the front row) at the final assembly for our class:
Richie cut school probably at least once a week for years, with new, more imaginative excuses each time.
One day, an overnight blizzard led to the cancellation of the school day, announced on the T.V. and radio. At 5:45 am that morning, Dr. Tranquil’s home phone rang and he heard Richie’s voice (normally whiny, but this time unbearably unctuous — imagine a young Ben Stein from “Ferris Bueller’s Day Off”), as follows:
“Dr. Tranquil, I’m deeply concerned. Students are missing valuable class time because of this piddly amount of precipitation (I’d say there was a good two feet of snow on the streets). Many of us, dare I say, may fall behind, never to catch up. Doctor, what may I ask, are you going to do about this? May I be of help?”
Which is to say, I don’t think MacTX is a concern troll.
I think he’s legitimately concerned.
I don’t agree with him on process, but not as you might think. In fact, I think the repercussions of this decision, if it stands, along with all of the other Obama grievances of the usual suspects, will be much worse that MacTX envisions.
I mentioned some of the explicit threats above.
My instincts run opposite of MacTX’s caution. I hope the decision stands and I want this and about ten other policy items rammed down the goose’s throat right up to the elbow.
Threats have been made and the lines have been drawn, he said, in a toned-down sort of way.
On the upside, I think the suspects making the threats are much more cowardly than cowards James Earle Ray and John Wilkes Booth, who at least had the guts to change into street clothes from their jammies and bathrobes before undertaking THEIR cowardly acts.
But McTex, how big is Group 3 really?
We won’t know until we get there. I think it’s going to be pretty big. I think there is polling data on public acceptance of SSM by judicial fiat. I could be wrong on this.
“The analytical gap between the existing paradigm and SSM is much broader than man/woman, black/white.”
What analytical gap are you referring to?
You’re no oaf at all. The analytical gap to which I refer is that, at the time Loving was handed down, every state had a statutory scheme for marriage: age of consent, dissolution, obligations, elements of a valid marriage etc. Co-existing with that structure was a near universal set of laws that variously made homosexual intimacy either a felony or a misdemeanor. The state law structures relating to homosexuality and marriage were reflected in a wide range of federal statutory schemes and underlying regulatory rules and guidelines. In those days, marriage was good, homosexuality was bad. Very bad. Few, if any, spoke out for gay people. Legally, the only recognition of same sex intimacy was to prosecute and convict.
Also in play when Loving was decided was the fact that Brown v Board, expressly overruling the separate but equal doctrine and further holding that ‘equal means the same’ with respect to race, was 13 years old and had a considerable body of underlying jurisprudence. Further in play was that the Civil Rights Act of 1964 and The Voting Rights Act of 1965 were on the books and were in force. Equality under the law was the consensus view in the US in 1967 when Loving was decided. Not the overwhelming consensus, but a solid, supportive consensus nonetheless. Loving, in 1967, was a six inch putt, a no brainer. It was unanimous.
Here is the precise analytical gap: there is no corresponding body of statutory and case law for sexual orientation that permits the law to take the next logical step and say that prohibitions against SSM are an outmoded vestige of an earlier, unfortunate and benighted time. If anything, it’s the opposite. The last vestiges of the outright prohibitions against homosexual intimacy have only relatively recently been thrown out. For once, in large part due to the following generations’ view of equality, society is ahead of the law. And getting more ahead pretty much everyday. But as for a an existing body of law addressing sexual orientation in a positive way, it isn’t there. Not yet.
Loving v. Virginia. It’s been awhile since I’ve read the case. It’s very short, people should read it in full.
Richard Loving and Mildred Jeter, residents of Virginia, were married in June 1958 in D.C., returning to Virginia shortly thereafter. That fall a grand jury was convened and charged them with violating Virginia’s ban on interracial marriages, a charge to which they pleaded guilty in January, 1959. They were sentenced to one year in prison, which was suspended provided that they leave the state for 25 years. The Supreme Court handed down its decision that the Virginia statute was unconstitutional in June 1967, nine years after their marriage and forced exile from Virginia.
Other than the facts, which seem even more remarkable to me upon re-reading, one pertinent thing about the Court’s decision is that not only did it hold that Virginia’s statute violated the 14th Amendment’s Equal Protection clause, but also the Amendment’s Due Process clause. As to the latter, the Court stated (citations omitted):
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
I don’t think the Court has to go too far to re-write that paragraph to read:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable a basis as the gender classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious gender discriminations. Under our Constitution, the freedom to marry, or not marry, a person of the same sex resides with the individual and cannot be infringed by the State.
Fairly simple, actually.
We won’t know until we get there. I think it’s going to be pretty big. I think there is polling data on public acceptance of SSM by judicial fiat. I could be wrong on this.
I’d be willing to look at the polling data.
I’ve linked to various studies in this thread that cast doubt on that, but I can be swayed by empirical evidence if it’s solidly grounded.
I’d be willing to look at the polling data.
I’ve linked to various studies in this thread that cast doubt on that, but I can be swayed by empirical evidence if it’s solidly grounded.
I think it depends on what the Supremes do. Like JanieM, this issue’s been gnawing on me since early yesterday. I damn near got out of bed and posted around 2 a.m. this morning. I am leaning toward reversal with a bunch of fudge language to the effect, “don’t take this to mean discrimination against gay people isn’t reached by the equal protection clause, blah, blah, blah” essentially inviting other, less controversial cases to come up first before invalidating the mass of state and federal laws that do discriminate. IOW, I don’t see a sweeping change, but I don’t see the door being slammed shut either. Just me playing with my crystal ball. In public. Damn.
McTX — Backlash is unavoidable, to some degree. However much there is will be loud and ugly and will get a lot of play in the media. If SSM is made the law of the land via fiat, the cry will be “Gays don’t respect our democracy! Gays short circuited the electoral process! Blah, blah, blah.” It will resonate a lot more than getting their (SSM opponents) asses kicked in a fair fight, or even by judicial fiat once a good piece of the country is on board with SSM/CU.
Back to the substance of my earlier questions. You state here that “the cry will be…” and that “it will resonate more…” This is undoubtedly true. However, since you have identified three groups the question here is not whether your assertions are true, but whether any of them hold for anyone outside of the first group. Hence all the calls for you to identify an actual group that holds these positions so that people can evaluate how big a group this is and the motivation that they have for refusing to recognize a person’s right to marry based solely upon process.
I think the actual splitting point here is over your categorization of this third group of people concerned with process.
Nate characterizes the argument that this group is making as a fig leaf and I can see why. I think that opposition to acknowledging same sex couples right to marry via judicial means and preference for CU legislation actually marks a group of people who are fine with same sex couples but who have all sorts of problems with them being given equal access to adoption, (or to any formal federal recognition that might make children question their parents moral opprobrium over homosexuality as a lifestyle, or any one of a host of other incremental sticking points that point precisely to the “moral disapproval” issue that Judge Walker ruled insufficient grounds). The process argument allows these conflicted, well-intentioned bigots to parcel out rights in a way that lets them withhold the ones they are uncomfortable with giving to gays (and which no one would dare withhold from any het couple) while still giving them the appearance of being progressive and noble. After all, they are *for* gay couples, just not for anything as radical as allowing bad gay couples the freedom to abuse their rights the way that bad het couples can.
At least that’s how I see it.
nous–how many voters in the US are over 70? How many more voters will there be in 10 years? How many people have had their views on SSM evolve over the years to becoming in favor (there is polling data on this one)? What is likely to happen to stop this progression? The trends are very favorable. But, I am so backed up at work, I have to lay down my keyboard and get back to making a living.
McKT, you say:
Also in play when Loving was decided was the fact that Brown v Board, expressly overruling the separate but equal doctrine and further holding that ‘equal means the same’ with respect to race, was 13 years old and had a considerable body of underlying jurisprudence. Further in play was that the Civil Rights Act of 1964 and The Voting Rights Act of 1965 were on the books and were in force. Equality under the law was the consensus view in the US in 1967 when Loving was decided. Not the overwhelming consensus, but a solid, supportive consensus nonetheless. Loving, in 1967, was a six inch putt, a no brainer. It was unanimous.
It seems like you’re saying that for Perry to be decided like Loving, Perry would need a precedent like Brown, but it doesn’t have that. The closest we have to supporting precedent is Lawrence, where Kennedy pretty explicitly excluded (based on my reading about the decision, I have not read his opinion myself) SSM from what he considered constitutionally protected conduct.
However, the call for laying more precedent seems besides the point to me. I’m sure Brown cites precedent aplenty, but on civil rights issues, a court will have to eventually bite the bullet and be the Prime Mover if the plebiscite has eroded what the court recognizes as a fundamental right (I know that SSM has not yet been, and we only know how 8 of the justices will vote on it). As you said, when Brown was decided, it propagated a large body of supporting jurisprudence which laid the groundwork for Loving (a six inch putt). Why can’t Perry be a new groundwork-laying case? How will we get an existing body of law without a first step towards creating it?
Also, I can’t think of anything that sounds more separate-but-equal than “domestic partnerships.” Was S-b-E ruled as being discriminatory only when applies to race?
Why can’t Perry be a new groundwork-laying case? How will we get an existing body of law without a first step towards creating it?
Also, I can’t think of anything that sounds more separate-but-equal than “domestic partnerships.” Was S-b-E ruled as being discriminatory only when applies to race?
Perry might be that case that gets the ball rolling. See my and my crystal ball’s self gratification not too far above. But it will be a relatively slow crawl. Legislatures and state supreme courts will act more promptly and a lot of the momentum for the ultimate result will come from state action (my forecast).
As for CU’s being separate but equal, maybe so, but maybe not. I’d bet on ‘not’ IF the state’s are required to afford identical substantive rights, albeit under another name. Labels normally don’t carry a lot of weight legally if the underlying effect is indistinguishable. I am with marriage because, having hung around here awhile, I have the advantage of seeing up close and personal the importance to people of being treated exactly the same. Not everyone out there has that advantage.
McTX — how many gay couples who would like to be able to marry the loves of their lives are over 70 or will have died over the next decade without being able to exercise their right to marry the person of their choice while waiting for begrudging, incremental change?
Nous, having Jes’ trenchant reminder to consider, I am sure the number is significant, but even if it is small, what happens in a decade is small comfort for those now in their last years or even those with many years to live. Not wearing those shoes, I can only imagine. I refer you to the very first words I wrote.
Hence all the calls for you to identify an actual group that holds these positions so that people can evaluate how big a group this is and the motivation that they have for refusing to recognize a person’s right to marry based solely upon process.
I think the actual splitting point here is over your categorization of this third group of people concerned with process.
I’m going to repeat what I wrote earlier with added emphasis, particularly in light of the idea of using polling data to make the point on backlash.
We agree about Group 1. I just don’t see Group 2 or 3, regardless of how big or small those groups are, making that big of a marginal stink over process. Whatever additional backlash there would be, if any, would not outweigh, by a long shot, the benefits of a judicial decision in favor of SSM, IMO.
It’s really not a question of how many people will favor or not favor a judicial ruling as opposed to some other process. It’s a question of how much they will act upon their opinions. How many people will be so bothered by the process that they will actively discriminate against homosexuals or same-sex couples moreso than they otherwise would?
Why should same-sex couples who want to marry or their supporters care if some number, any number really, of people simply don’t like a court decision in favor of SSM? That’s all a poll is going to tell you. And even if there is some marginal difference in backlash because of process, the question is whether or not the gains are worth accepting that additional backlash, not that whether or not there will be additional backlash.
Italics!!!
It’s really not a question of how many people will favor or not favor a judicial ruling as opposed to some other process. It’s a question of how much they will act upon their opinions. How many people will be so bothered by the process that they will actively discriminate against homosexuals or same-sex couples moreso than they otherwise would?
Yes, these are all unknowns. Here is a worst case scenario, with a very low probability IMHO: Perry is affirmed 5-4, all state statutory and constitutional anti-gay marriage structures are stricken and either a constitutional convention is called or an amendment gets through the house and senate and goes to the states. It passes and SSM is dead. Worth the risk? Not for me to say.
Worth the risk?
Yes.
If there existed that level of anti-homosexual animus in the country, then there was really no risk at all since homosexuals didn’t stand a chance until a massive, multi-decades sea change anyway – which will come about in a few decades.
But that is not the case. Heck, even 70% of Fox News viewers (!) are against Constitutional amendments banning SSM.
You are aware of what’s required in order to amend the Constitution, right? Nagunnahappen. Not now, and probably not ever, not with support for SSM steadily climbing year after year.
Seriously. If you really think this is a plausible worst-case outcome, let me know which 75% of the state legislatures are likely to support this–after you clear the supermajority hurdle in both houses of Congress or the 2/3 of state legislatures necessary to call a convention.
This is a worst-case scenario with approximately the same level of probability as Democrats repealing the 22nd Amendment and electing Barack Obama president for life.
“Simply put, there is no big “process” constituency out there, but rather opponents that use the “process” argument to shroud their opposition in more exalted language/concept.”
Do you believe that is true among liberals when they cite process too? They do it a lot. Is it just a function of conservatives to have skeptical process objections?
McKinneyTexas: Group 3–people who aren’t on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part
Ah. They’re your allies, maybe. That may be what confuses you: they’re on your side, and in a fuzzy, comfortable, someday-it’s-gonna-happen-but-I-don’t-want-to-have-to-deal-with-it-now kind of way, you think you’re on our side.
But you’re actually an opponent. As noted in Letter From A Birmingham Jail: the kind of Nice Guy(TM) opponent who likes to think well of himself, but is in no way to be counted on as an ally. And that’s you. You want to think of yourself as an ally?
Be an ally. Quit being one of the NiceGuy(TM) opponents, or at least quit trying to claim that your buds are our allies just because you like and respect them more than you like and respect queers.
Do you believe that is true among liberals when they cite process too? They do it a lot. Is it just a function of conservatives to have skeptical process objections?
I didn’t know liberals were complaining about process with regard to the Walker ruling.
I have been out since lunchtime and this conversation has been so present in my thoughts that I was writing notes on a newspaper as I drove down Route 1. (Carefully.) I see by a quick glance that the thread is still going and that McKinney hasn’t gotten too fed up to continue, so I want to start by thanking everyone, but particularly McKinney. The dialogue (multilogue) is fascinating, challenging, frustrating, and deeply satisfying all at the same time.
I am going to toss in the thoughts behind the notes I was taking in the car before I catch up on the reading and give myself a whole new slew of thoughts to ponder. It will probably be clearer with several separate comments.
More to come.
Responsibility:
I am not responsible for what that bulldozer driver decides to do if I stand up after I’ve been knocked down. The image is a cartoon, of course, and comically oversimplified; in reality we’re talking about millions of people’s opinions, hopes, fears, dreams, intentions, decisions, and plans, and I’m really not responsible for all that. All I can be responsible for in the end is me. Like everyone else, I’m always trying to make the best decisions I can, but I absolutely refuse to take the blame for other people’s sh*t. If we try for SSM now and we don’t get it yet, that will not be my fault. It will be the fault and the responsibility of the people who want me to remain a second-class citizen.
Also: in terms of risk analysis in relation to the timing of the SSM campaign, the political calculation is not about politics alone; it never is nor can it ever be. Especially, it isn’t and couldn’t with any integrity be only about manipulating the reactions of opponents (or proponents, for that matter). Besides strictly vote- and law-related considerations, there are also considerations of honesty, respect, self-respect, and integrity that come into play. There comes a point when — making our best assessment based on everything we know and anything we hope we can predict — we just have to say: Time to stand up. The next move is theirs.
Crystal balls:
McKinney thinks that in a decade or so, the majority in the US will be on our side. McKinney doesn’t know this, no one can know this. McKinney also thinks that by trying to move too fast, we are likely to make things worse instead of better. But McKinney doesn’t know this, either, he’s guessing to pretty much the same extent that anyone else is.
There is also no way to measure what the cost would be of waiting. The best we can do is inform ourselves and make the best guess we can of the risks and potential costs and benefits of the paths we might take.
Even if the worst-case scenario comes to pass (leaving out a nightmare descent into violent fascism again), and the Supreme Court upholds SSM and we then find ourselves with a Constitutional amendment outlawing it, there is still no way to know whether the situation might not have been even worse if we had done nothing. Doing nothing would have violated our own self-respect, dignity, and integrity, for one thing, but we also — McKinney included — have no way of knowing what other societal currents might have intervened to turn public opinion in an unexpected direction.
We just can’t know. So we just do our best.
I said here a few months ago that I believe we should be more careful to distinguish between rights in the abstract, and codified rights that we have some way of defending. Or to put it another way, we can talk all we want about rights as an abstract concept, but in practical daily life we don’t have any rights that we don’t have the firepower to defend.
Now I want to get at something a little different from that distinction. I have assumed all through this thread that McKinney does not believe that rights are more truly rights if the majority believes they are rights; that he is only talking about the extent to which people will go along with recognizing rights, however they have been established as rights that our legal system supports. So if McKinney really believes that rights aren’t rights until the majority supports them, what follows is irrelevant.
I am imagining the law firm of McKinney, Olsen, Boies, and Bonauto. MOBB, if you will. Or maybe it’s Bonauto, Olsen, McKinney and Boies — BOMB. Take your pick. 😉
(Also, I know zip about how law firms operate in real life, so maybe my question isn’t going to be answerable as asked.)
I’m asking McKinney: Suppose Olsen, Boies, and Bonauto were your law partners. Olsen and Boies are well-known, one might even say highfalutin lawyers. Mary Bonauto has devoted her life to civil rights issues and “was lead counsel in Goodridge v. Dept. of Public Health, which resulted in the Massachusetts Supreme Judicial Court declaring that prohibiting civil marriage for same-sex couples is unconstitutional.” She is also on the GLAD legal team that’s challenging DOMA.
Suppose you four partners had been talking about whether to bring the Prop 8 case for a long time. Suppose, as in real life it looks like would have been the case, the other three felt that it should be brought, and you didn’t. Suppose you operated on a simple majority vote, and you lost. If your three partners wanted to go ahead with the suit and you didn’t, presumably you would have plenty of other things to work on, so you wouldn’t actually have to be part of the legal team challenging Prop 8. But you were still a law partner of the people who were.
You would go along with your own cases, but how would you behave toward your partners? Would you wish them well? Would you give them useful input if you had areas of expertise that might be valuable to them? Or would you just keep after them with your opinion that they were doin’ it rong, and you had every intention of continuing to remind them of that fact even though they were going forward with the case?
I ask about this (perhaps silly) hypothetical for two reasons.
One is: maybe things have changed this afternoon, but I’m not sure you’ve heard a lot of the things I (and others) have been saying in respose to your doom and gloom and disapproval about the timing of the SSM campaign: the fact that no one can predict the future; the fact that no one is in charge, but rather we’re moving along with the incalculable effects of the decisions of thousands of people; the fact that this isn’t just about narrow political or legal goals. I’m just wondering if you would respond differently to actual partners in a situation where your opinion had been overruled in relation to a decision to bring this lawsuit.
The other is: Olsen and Boies are (sort of) famous lawyers. They are probably reasonably intelligent, and I doubt you would want to suggest that they know less about the law (or about American politics) than you do. Mary Bonauto has spent her entire working life on these issues and might be assumed to know something about it, and also about the politics surrounding the legalities.
Now, Olsen and Boies may just be grandstanding and Bonauto may be too close to the situation to see straight, since she’s a lesbian. But if we tentatively assume that the first two are acting in good faith and Bonauto is a sharp and competent lawyer, then we have a situation where three very good lawyers are coming to one set of conclusions and one other very good lawyer is coming to another set of conclusions.
I understand that this happens a lot in real life, and that in a way it’s why we have lawyers in the first place. But I’m really curious as to what you think these three (particularly Olsen and Boies, since this thread is about the Prop 8 case) are missing. Are they stupid? Deluded? Operating out of ulterior motives of some sort? Or are they just calculating the odds differently, or reading the public mood differently? I’m really curious to know what you think, this isn’t meant to be a trick question.
Me: Can anyone name me one unfettered fundamental right?
McKinney: The right to believe.
The right to carry a child to term.
The right to notice and a hearing in a criminal proceeding.
Again, maybe this has been touched upon; a control-f finds many further instances of the phrase “fundamental right.” So I’ll catch up on my reading later.
Meanwhile, I was in my own fuzzy non-lawyerish way thinking about Constitutionally protected/defined rights in particular. Are these three on that list?
Does the Constitution say we have a right to believe, as such? It seems to me to be at the level of a tautology, since we don’t have mind-control technology yet and anyone can believe anything they want, and say they don’t. To pass a law saying that people had to believe some particular thing would be like passing a law saying that pi=3.14. Good luck with that.
As for the third, it seems like our last and present presidents are chipping away at this one, but I’m not qualified to go on with that topic, so I won’t.
As to the middle one: Is there case law about a woman’s right to carry a child to term? (I googled “the right to carry a child to term” and wow…what do I get but a lot about “the right to carry…” you know what. I’m not going there either.)
So if McKinney really believes that rights aren’t rights until the majority supports them, what follows is irrelevant.
I see that I’m still not being clear. Hopefully it’s obvious that I agree that if the majority vehemently doesn’t support something, to the tune of a Constitutional Amendment, then however much we might believe we have that right in the abstract, we don’t have it in practice.
Finally — for now — I want to turn in the other direction and mention that I on my side have actually been listening to McKinney in a way that might not be obvious from my argumentativeness, and that there is a level at which I agree with some of what he is suggesting, though I don’t agree with all the conclusions he draws about how to go forward.
I am not unmindful of the need to take thought for how other people see the world that we all have to share. My life’s greatest teacher was a guy named Danaan Parry, who was, among other things and not all at the same time, a Coast Guard helicopter pilot, a physicist, a counselor, and a citizen diplomacy and conflict resolution teacher/leader. Danaan also spent decades practicing aikido, and many of the things he taught in his workshops were framed in aikido terms. (For all you martial artists in the commentariat.) (Several of the people I consider my great teachers had their foot in both caps: physics and New Age foo-fa. Balance is a wonderful thing. 😉
Danaan said a lot of things that function as part of my own personal ten
commandmentssuggestions, and one of the most profound and challenging was this:You have to make it safe for the other guy to make it safe for you to tell your truth.
I’ve tried. I still try, sometimes and in some ways, though I’m angrier and more despairing (at least about human nature and our prospects for living peaceably together) than I used to be.
But I’m not the Dalai Lama (“Poor Chinese, they make such bad karma for themselves”). I’m not saintly, or very patient. And as the years have gone by I’ve decided that if I can’t stand up and say it’s my world too until I’m a saint — and I can’t support political campaigns until everyone involved in them is a saint and omniscient to boot — then I might just as well go sit on the beach til I die.
I spent a lot of time in Danaan Parry’s world (I think of it as “conflict resolution and weekend group therapy”) during the years when I was coming out of the closet in the broader world (i.e. not just among my friends). In fact, Danaan’s workshops helped me find the courage to do that.
In those days I was more idealistic than I am now; there was actually a time when I thought that making it safe for the other guy to make it safe for me to tell my truth was the fastest way to get where I wanted to go. But the more I (and we all) came out of the closet, the more some varieties of homophobia also came out of the closet, and the more I learned just how messy the real world can be.
At this point, what I see is that not very many people operate on the assumption that “you have to make it safe…,” and I’m not Archimedes with a lever that can move the whole world. I think Ugh’s press release would be the more likely result of the Civil War never having been fought, and I think there’s some parallel there with the need to get on with this business of insisting on the fact that it’s my world too regardless of how much of the voting public is ready to accept that fact.
In other words: for better and worse, I’m not on the beach.
people who aren’t on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part
Ugh. A position that can be encapsulated as, “I’d like for you to be able to get married, but only if I can give you permission, not if they give you permission,” is not alliance. It’s arrogance combined with some perverted notion of noblesse oblige. “If I don’t get to bestow this privilege on you, you can’t have it.”
It’s like Ralph Fiennes deranged Nazi commandant in Schindler’s List, discovering the notion of mercy, and granting it on a lark, then shooting its recipient anyway.
The worst case scenario I can see to the Court upholding Walker’s ruling is that (a) it is made in June 2012 (which seems to be the correct timing) so that (b) it swimgs the presidential election to whatever creature the Republicans nominate for the Presidency that year who then (c) appoints a justice or two that are reliable pro-sex discrimination votes on the court on this issue and (d) such a newly configured Court overturns the 2012 precedent in june 2015 (or perhaps 2016), in which case we return to where we are today except (I) the trend towards popular recognition of SSM has another 6 years behind it (II) tens (if not hundreds) of thousands of gay marriages have been performed without the heavens falling, both making congressional action prohibiting the states from re-enacting bans on SSM highly likely.
Not sure what the current Court would do, and it will probably have a new member or two before it even hears the current case on appeal, but if it does uphold Walker’s ruling my bet would be that that would be the end of the matter legally.
Do you believe that is true among liberals when they cite process too? They do it a lot. Is it just a function of conservatives to have skeptical process objections?
To the extent that liberals argue that they don’t oppose right X, but only oppose right X when it is guaranteed by the courts, rather than by legislative act, then yeah.
Or even that they oppose right X, and that it’s particularly egregious that right X was guaranteed by court decision, not legislative act.
If your three partners wanted to go ahead with the suit and you didn’t, presumably you would have plenty of other things to work on, so you wouldn’t actually have to be part of the legal team challenging Prop 8.
Using this quote, I will try to address your overall post.
First, as caveat-ed below, I would back my partners. That’s what partners do as a general rule.
Second, I would make the point privately to them that the thrust of their case is to overturn, in one single, judicial fell swoop a huge body of popularly voted-in anti-gay legislation and state constitutional amendments. If successful, the blow back would be fierce. (Yes, I continue to chew on this and refine my own thoughts) Here is my take on Americans: first and foremost, they collectively value the right to vote. They have a vague concept of judicial review, but in the collective mind, the courts are a distant third, and not a co-equal branch of gov’t. The president is a big deal, for most Americans. So, you throw out state law in 35-40 states, it looks to the average person like an end run around democracy, like their votes don’t count. They don’t get that on a fundamental right, in fact, no one’s vote counts. So, the blow back would be partially anti-gay (can’t cure bigotry, at least not very easily) but mostly anti-end run. Perception is reality, for the most part. Once I said my piece, I’d be in for the ride with them.
You are also entirely correct that this is a very dynamic situation with the potential for all kinds of shifts and movements. One potential silver lining is that the Perry decision will have the true bigots, the one’s with a national presence, out foaming at the mouth at the speed of light. It seems to me that every time one of these yahoos tees off, five or six individuals wonder if maybe he/she isn’t actually nuts after all.
Now, you also asked about me and how lawyers roll when confronted with potentially divisive, controversial issues. The answer is: it depends.
Until late ’99, I was the de facto managing shareholder in a 40 plus lawyer firm. Not huge, but not the 6 person shop I run today either. Our forte was civil trials and collectively, we tried far more civil cases annually than pretty much any firm in town. For a number of personal and professional reasons, I was not happy at this firm. I was on the bubble about leaving in the fall of ’99 when it was announced that a certain state legislator would be joining the firm. This prick was totally in the pocket of certain business and anti-lawsuit groups and his coming on board was one of two tipping points that put me over the top. I started my own shop on Feb. 1, 2000.
So, the general rule is to support your partners, but if the issue matters enough, you have to go with what you think is right.
But, to be completely honest, my views on SSM in 2000, pre-ObiWi, pre-Jes kicking my ass, were just beginning to change from archaic to coming around slowly. No personal animus toward gay people individually, I just didn’t see any reason why two people of the same sex should be allowed to marry. Obviously, this was not a well thought out position and it was obviously wrong. I know a lot of people who felt that way then, who feel the opposite today. Which is why I am optimistic about the future.
But I’m really curious as to what you think these three (particularly Olsen and Boies, since this thread is about the Prop 8 case) are missing. Are they stupid? Deluded? Operating out of ulterior motives of some sort? Or are they just calculating the odds differently, or reading the public mood differently?
I am no mind reader, but my best guess is it’s a combination of (1) a different perspective and (2) they probably followed the Prop 8 campaign much more closely than I did and they were probably so pissed off and offended by the bigotry and the lying that they did what good lawyers do when they get really angry about something: they decided to kick over the table and shoot out the lights (I kind of imagine Boies and Olsen getting a bit of a load on, getting really angry and saying to themselves, “we gotta do something, this is bullshit”, but that could just be me projecting–most of my really good ideas, along with my really bad ones, are alcohol-induced).
One the three unfettered rights: there aren’t many rights that are truly unfettered, because most rights, if taken far enough, run over someone else. Your question was fascinating and so I tried to think of as many things as I could that I cannot imagine a court ruling were not rights. Your point about notice and hearing is valid and I should qualify that by saying it is presently such a right when applied to domestic crimes. Unfettered for some, but not for all. So, probably not unfettered.
Big day today on a tough case. Gotta run.
my bet would be that that would be the end of the matter legally.
i think the GOP would love to keep the issue alive by pretending to want to pass the Federal Marriage Amendment.
most of my really good ideas, along with my really bad ones, are alcohol-induced
Let me know if you’re ever going to be in the Philly/South Jersey area. We should hang out.
Thanks, McKinney.
I’m still thinking about all of it (natch), but I still haven’t caught up from yesterday and am finding myself busier today than I expected.
Maybe we can pick up the thread (so to speak) later…we’ll see. I just didn’t want to let your lengthy reply go unacknowledged.
Let me know if you’re ever going to be in the Philly/South Jersey area. We should hang out.
Absolutely. My son is in Morristown NJ. I’ll try to get up there. I’m in Houston. Drop in anytime.
Maybe we can pick up the thread (so to speak) later…we’ll see. I just didn’t want to let your lengthy reply go unacknowledged.
Understood and very kind. JanieM, it’s always good to exchange views with you. Always.
A harbinger of change
From here:
CNN’s latest poll, in the wake of the Walker decision, is easily the most promising to date for those of us in support of marriage rights for all. For the first time, a slim majority of all Americans backs not just marriage, but a constitutional right to marriage for gay couples.
Heh.