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The Non-Inevitability of Same-Sex Marriage

[ 140 ] April 2, 2013 |

Nicholas Stephanopoulos makes a really important point:

Although it’s superficially appealing, the argument for judicial deference is wrong. The ability of gay rights groups to win ordinary political battles is actually quite limited. Much more common than the imposition of pro-gay policies on a disapproving majority is the reverse scenario: the failure to enact such policies even when they’re supported by a popular majority. Judicial intervention may therefore be necessary because, regrettably, this is not an area in which the political process can be trusted.

I agree with assumptions that the turn of public opinion in favor of same-sex marriage is likely to be permanent. But the problem is that people greatly overestimate the effect of public opinion on public policy. This is one of the really key problems with the “Roe was counterproductive” argument. The assumption is that because outright bans on abortion are unpopular in most states, they were doomed whether the Supreme Court intervened or not. The problem is this isn’t how actually how American politics actually works. Madisonian institutions protect the status quo, and people vote for bundles of policy positions, not a la carte. Parties can maintain majority status while maintaining unpopular positions on individual issues, and this goes triple when (as is the case with abortion regulations and prohibitions) the policy disproportionately burdens people with the least political influence. Which is why the movement to legalize abortion had essentially stalled by 1973, with abortion having been decriminalized in only 4 states and the District of Columbia. More battles for legalization would eventually would have been won, but abortion would have remained illegal in many states, perhaps a majority.

And the same thing is true with same-sex marriage. Public opinion may well favor same-sex marriage in the vast majority of states where it’s now illegal by the end of the decade. But this doesn’t mean that people not directly affected by the issue will instantly become single-issue voters unwilling to settle for anything less than full equality. Plenty of affluent suburbanites in states where SSM is still illegal will be happy to keep voting for Republicans who oppose SSM even if they nominally favor it. To argue that the Supreme Court should stay its hand because most states will soon grant marriage equality is to rest on assumption with very little basis.

There’s a final, immoral variation of the argument, which is that the Supreme Court staying its hand is a good thing because it will hand Democrats an issue to beat Republicans over the head with. Even leaving aside the fact that the political benefits of being on the right public opinion side of SSM are almost certainly overstated (just as the political benefits Republicans got from opposed SSM in the previous two decades were greatly overstated), as I’ve said this argument only works if you trivialize the issue. People’s dignity and human rights aren’t a pawn to be used to produce (very modest) political benefits; when they can be advanced they should be.

Comments (140)

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  1. rea says:

    A big part of the strategy employed by opponents of gay marriage has been to amend state constitutions to bar gay marriage, making it harder to allow gay marriage once the majority favors such aresult.

    • Anon21 says:

      Am I wrong that in most states, these constitutional amendments can be repealed by simple majority of voters, and replaced by state constitutional amendments that require marriage equality? The blessing and curse of state constitutions that can be amended by referendum is that you can’t really entrench anything.

      • rea says:

        It’s still more complicated to win a state-wide referrendum than to have the legislature pass a law.

        • NonyNony says:

          And in Ohio, our legislature wants to change the rules on getting ballot initiatives in place because they think it’s too easy to get the laws that they pass overturned (nevermind that this doesn’t happen all that often – people are participating in democracy and it must be squelched at all cost). So when it comes time to get a popular referendum on the ballot in Ohio to overturn our stupid gay marriage ban it will be harder to do than it was to put it in in the first place.

          • Marc says:

            They’ll have to overcome a very likely initiative blocking the new law :)

          • mds says:

            And in Ohio, our legislature wants to change the rules on getting ballot initiatives in place because they think it’s too easy to get the laws that they pass overturned

            Because, having gotten elected, they gerrymand and rewrite the rules so that popular majorities can’t undo their damage even if they want to. Which definitely underscores Professor Lemieux’s point. See also Michigan, and the “During the lame-duck session, repass a law repealed by referendum” maneuver. If you want to stop them, you’re going to have to vote them out with majorities in a sufficient number of batshit western Michigan districts [INSERT MANIACAL LAUGHTER HERE]. Throwing DeVos ass puppet Rick Snyder out won’t be sufficient to undo what’s already been done.

            • MAJeff says:

              If you want to stop them, you’re going to have to vote them out with majorities in a sufficient number of batshit western Michigan districts

              Ah, the American Dutch. Crazy-ass “Reformed” motherfuckers who’ve ruined Western Michigan, NW Iowa, and Orange County, CA.

              • Santana says:

                You must mean south Orange County.

              • mds says:

                And Marion and Mahaska Counties in southeastern Iowa, though to a lesser extent. Argleflarglegarble Netherlanders, coming over here in their wooden shoeboats, knickerbockering everything worthwhile about America … Of course, that’s not true of everyone with Dutch ancestry, I belatedly hasten to add. And Gouda cheese is certainly very nice.

        • Anon21 says:

          That’s really context-dependent. As Scott points out, pro-marriage-equality electorates can produce anti-marriage-equality legislatures. Harder to see how pro-marriage-equality electorates will vote “No” on marriage equality presented as a ballot question.

          • Anonymous says:

            How is it so hard? I mean, uh, California voted it down in 2008. California. And Minnesota the proposed ban on SSM was defeated by only 3 points. Not a 3 point victory to legalize SSM, a 3 point defeat to constitutionally prohibit it. And the three states where it passed, they were hardly blowout wins. WA and ME won by only 6, MD by only 4.

            • Dana Houle says:

              [Grousing again that LG&M doesn't keep me signed in...]

            • Anon21 says:

              California 2008 wasn’t a pro-marriage-equality electorate. I promise you that California 2013 is. Basically, public opinion is moving extremely rapidly. What passed narrowly in 2012 will pass comfortably in 2016. The referendum strategy would be expensive, and it shouldn’t be necessary, but there is no reason at all to think that it couldn’t be successful in every blue state* (plus maybe a few square red states with libertarian tendencies) by 2020.

              *That allows petitions to place measures on the ballot.

              • Dana Houle says:

                But that’s still refusing to engage Eric’s point: there would be a bunch of places in America where the delay to catch up to the rest of the country could be quite long. States west of the Mississippi that don’t touch the Pacific, only ones I see approving SSM any time soon would be CO, NM, MN, NV and maybe MT. No way in the Dakotas, ID, UT, WY, NE, KS, MO, AR, OK, TX and probably not in AZ right away. And other states of the Confederacy, probably only FL, NC and VA anywhere close, and only others I can see doing it without it imposed in the foreseeable future are GA and maybe SC. And I wouldn’t count on KY, IN or WV any time soon either.

                So should people in all those states wait a decade or longer? If the answer is “they won’t have to,” you will have to come up w quite a novel explanation for me to believe it unless it involves SCOTUS doing a blanket decision.

                • Dana Houle says:

                  Scott’s point

                • Anon21 says:

                  No, it’s not refusing to engage with his point. He made more than one point; I engaged with one and have mostly ignored the other. “The other” in this case is the proposition that gay people should not have to wait on the political process to have equal marriage rights. I agree with that; it’s not really interesting as a point of discussion around these parts; I ignored it.

                  The claim that he makes that I think is overstated, and that I did engage with, is that even in states where most voters favor marriage equality, our political system will prevent action. I think he neglected the possibilities of referenda in that analysis, and from his comment below it seems that he agrees. I infer from your comment that you also agree that referenda will likely be successful in some states, while in others the political climate is going to be hostile for the foreseeable future. I agree–that’s why I limited my prediction to blue states and idiosyncratic red states.

                • Dana Houle says:

                  OK Anon 21, you asked “Am I wrong that in most states, these constitutional amendments can be repealed by simple majority of voters, and replaced by state constitutional amendments that require marriage equality?”

                  Yes, you’re wrong.

                  In 22 states, including 8 of the 11 states of the Confederacy, only the legislature can put a ballot question before the voters. There is no voter initiated referenda. Some of those states–Hawaii, Rhode Island, New Jersey–are among the most liberal in the country yet don’t have same-sex marriage. 8 more–Kansas and 7 of the 11 states of the Confederacy, together accounting for over 20% of the US population–don’t have voter-initiated referenda and also have constitutional bans on same sex marriage.

                  So, yeah, you’re wrong. Anything less than a national solution on same sex marriage will leave out a huge chunk of the US population for many years to come.

                • Dana Houle says:

                  Furthermore, in many places to get something on the ballot requires more than a majority of votes in the legislature, typically 60% or two-thirds. Which will make it even harder, considering that for the foreseeable future all Republicans and a good percentage of Dems in state legislatures in conservative states will not not want to do anything to allow greater equality for LGBT folks.

            • Johnny Sack says:

              That’s really not saying much of anything at all. California is really misunderstood politically-I mean, there is more to the state than the Bay Area and L.A. They’ve had a Republican in the Governor’s mansion something like 22 or 23 out of the last 30 years. That damned state spawned two of our worst presidents-Reagan and Nixon! And Reagan! For the love of god, Reagan.

              None of those are cogent arguments, just interesting facts. Why are people always surprised when California occasionally swings conservative? Shit, don’t be fooled by Hollywood and the Gay bay. Those may be the only places in the State I’d want to go, but doesn’t mean there isn’t enough of a conservative contingent to do some wacky shit.

              • Dana Houle says:

                I’ve read more than a couple history books. I’m aware of California’s history, and of its current politics, including that the state is far, far more liberal today than it was in the 1990′s, much less the 1960′s. I’m also aware that it’s one of the most socially liberal states in the country. And yet only four years ago they voted down SSM, so relying on the voters is not a good way to protect minority rights, especially when voters in a state like California can’t be counted on to do so.

                I guess one man’s obvious point that doesn’t require much elucidation is another man’s “interesting facts,” viewed through a lens of political history that’s a decade or two out of date. Besides, Scott already made the argument. I’m sure most people read my supporting facts and didn’t need the original argument to be restated for them.

    • cpinva says:

      “A big part of the strategy employed by opponents of gay marriage has been to amend state constitutions to bar gay marriage, making it harder to allow gay marriage once the majority favors such aresult.”

      and every single one of them would fail the “equal protection clause” test, for the same reason prop. 8 has. the supremacy clause is the bain of every neoconfederate’s existence. and make no mistake, under every fundy christian, lies a neoconfederate howling to get out.

      • N__B says:

        under every fundy christian, lies a neoconfederate

        This is more than I ever needed to know about the spawning of GOPper babies.

        • cpinva says:

          “This is more than I ever needed to know about the spawning of GOPper babies.”

          yes, yes it is. but you need to learn to face up to your fear and loathing!

      • Johnny Sack says:

        How do any of those referendums and especially state amendments pass Romer? Now, I know that the CO law was semi-different in that it “prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals” but isn’t a state constitutional ban on gay marriage functionally the same? They’re not as broad as the law in Romer, but I still think the animus and lack of a legitimate governmental interest are blindingly obvious.

        Here is the simplest argument I see, although I am not very familiar with litigation in this field. Most state Marriage and Divorce Acts (at least the ones I’m familiar with) already define marriage as between one man and one woman. Therefore, a statewide referendum would be redundant, no? Most Marriage statutes already exclude homosexuals by their definition of marriage, so there’s no functional purpose beyond animus towards a group of people. But then again, that argument is irrelevant because even if the law isn’t a redundant one, it’s still blatant animus towards a group of people.

        Which brings me to my next point-while I believe that sometimes the Supreme Court can be hard to follow and predict, and that Congress and state legislatures are also free to interpret the Constitution and blah blah blah, I wish there were some sort of criminal penalty for passing a law that blatantly violates a SCOTUS constitutional ruling. Unworkable I guess, but I can dream. I forget if it was North Dakota, but I think it was pretty clear that a state abortion law seemed to run afoul of Casey. That case is such a clusterfuck that you have to pass a pretty awful law for it to be clearly in violation of it.

        • Johnny Sack says:

          I guess the answer is obvious-it needs to be challenged and struck down. But it’s just absolutely bananas that there are laws like that being passed that are in direct violation of a clear precedent almost exactly on point.

          • Matt McIrvin says:

            Suppose you believe the previous ruling was wrong, and you think the Court’s makeup has changed in such a way that they might now recognize that? That’s pretty clearly what’s going on with the abortion laws. I don’t like it, but in a case where the change was in a direction I agreed with, I might think there was nothing wrong with that strategy.

            • cpinva says:

              it also helps if you have no aversion to spending lots of your state’s taxpayer dollars defending legislation that’s void on its face. now, it’s possible your constituents might take exception to this, and run you out of office at the next opportunity. however, for the period of your term, you can cause an awful lot of damage, that will take years for the state to recover from, and that’s really your purpose in life anyway.

        • Anon21 says:

          I mean, that’s Hollingsworth. I think the rationale of Romer leads pretty clearly to the conclusion that the results of the referenda that enshrined the anti-marriage-equality position in state constitutions are unconstitutional, but the rule of that case is quite a bit narrower, and leaves Kennedy plenty of room to maneuver if he would prefer to issue a narrow ruling.

          • Johnny Sack says:

            Ah I see. I’ll do more reading instead of running my mouth.

            Actually-just quickly perusing Wikipedia-Ted Olson and David Boies are working together? Wow-I would not want to be on the other side of that.

  2. Anon21 says:

    You’re missing something in modeling this as if the only way to get SSM done is by ordinary legislation. By my count, there are 14 states that don’t currently allow SSM where you can put a law on the ballot by petition. There also seem to be four additional states that don’t currently allow SSM in which you can put a constitutional amendment on the ballot by petition. And there are some number of others where you can put a referendum on the ballot specifically to repeal an act of the legislature, which might work in one or two states where there’s no anti-SSM state constitutional amendment. All of that adds up to a lot of progress that can be made not by molding people into single-issue voters who will always prioritize marriage equality in choosing candidates for office, but by putting before them an up-or-down vote on the question of equality. And it’s not like the marriage equality movement is lacking for money to get petitions signed and public persuasion accomplished.

    • Scott Lemieux says:

      That will help in some cases, but again remember that initiatives aren’t voted on by representative samples of the electorate. It will be easier to get SSM this way in some states than it was to legalize abortion, though, I agree.

    • Phoenix_rising says:

      I’m going to dispute that closing sentence.

      While it’s true that there are some deep pockets ready to throw money at the initiatives, there is significant debate within the organizations currently comprising the movement about what to fund. Some of us believe that volunteering to be the piñata at our own expense, rather than passing legislation or litigating as is pragmatic in states, is crazy.

      Speaking for myself, I’m not charmed by the suggestion that my kid should have to live through another Prop 8 so that Tony Kennedy’s fantasy of how nice, kind and fair a bare majority of Americans are can be fulfilled. Once was enough.

  3. howard says:

    it’s not the heart of the matter, but i don’t have anything to add to the heart of matter, so i’m going to digress.

    i understand why one-percenters support republicans: the direct payoff in lower tax rates is really meaningful to people with 7-digit incomes.

    but i do not understand why affluent suburbanites – let’s say households with incomes between 150K and 350K, equity in a house, and meaningful retirement savings – support republicans: i can’t honestly think of one thing the republican party stands for that benefits these households (well, ok, republicans stand for the status quo, and there’s nothing like being perched outside the truly high income but having a window into their lifestyles to encourage status anxiety, so perhaps that’s it…).

    • Shakezula says:

      Republican policies make it harder for other people to get their share of the pie. To a certain segment of the species, having isn’t enough. Other people must not have for these psychos to get full enjoyment out of life. That asshole who gets tensed out when you have a nifty new iWhatever before he does? Him.

      If you want to imagine these people’s ideal future, imagine a balding middle-aged guy clad in Dockers stomping on a human face and shouting “I got mine, fuck you jack!” forever.

    • mark f says:

      Because most of them will never believe that this exists, nor that they benefitted from this.

    • CaptBackslap says:

      A lot of Republican voters are signaling high status more than acting in their really-existing best interest (of course, the obverse is often true as well). Beyond that, Americans tend to be wildly optimistic about their future economic prospects, and they want to make sure their taxes will be low when they finally Make It Big.

    • Malaclypse says:

      Let’s imagine that you are somewhere in the 250-300K range.
      1) You have probably never been even sort of poor.
      2) Your reference group is not the median household down in the 50Ks, but people doing close to or just better than you.
      3) Remember that the progressivity of the tax code is bell-curved – you don’t pay much if you are poor, you don’t may much if you are Romney, this group had, in general, the highest tax rates. They also (and I’ve done taxes for this group) are piss-poor at tax planning, and tend to owe a lot every April. Poor people use tax refunds as forced savings accounts. The moderately rich don’t.
      4) You are just wealthy enough that you don’t think of government as a safety net, you think of it as providing benefits you don’t use now, and are unimaginative enough to believe you will need in the future. Think “Why is my kid paying full tuition for college, when poor kids soak up all the free money?”

      In short, they are just wealthy enough to be bitter about what they won’t get.

      • witless chum says:

        This makes a lot of sense and they’re also just rich enough to really think of themselves as the proverbial upstanding members of the community. They’re just on the level where their pastor will kiss their ass a little and they’ll get some kind of time of day from their suburb’s government. Get hit up to support fancy charity type things.

        A shitload of modern American conservatism is simply about reinforcing hierarchy (rich, straight, Christian, mostly white, men on top everyone else below) and being able to imagine yourself more the top that hierarchy probably helps grow enthusiasm for it, though people on the bottom are also often offended by people getting ‘ahead of themselves.’

      • catclub says:

        ” They also (and I’ve done taxes for this group) are piss-poor at tax planning.”

        Could be some selection bias, just like police think of every civilian as a perp. The ones you don’t see may be doing tax planning pretty well.
        Also, why loan the government money?
        Big payment in April works if: you can pay it without a loan,
        and there is no penalty added. I am not claiming those two happen, you probably know much better than I.

        Your last line: well put.

        • Malaclypse says:

          Fair enough on the selection bias.

          I hated tax work with the bile of a thousand JenBobs, and only did it one year. I just wanted to touch on the psychology of owing 5k each April, instead of getting 1-2K back.

          There really are a large number of people who really are dumb enough to think that owing more money means that taxes went up, even though they changed their withholdings from S-0 to M-19.

          • Matt McIrvin says:

            Heck, most of these people sincerely seem to believe (based on their political rants about taxes) that if your income goes over a tax-bracket boundary, a higher tax rate applies to all your income and you end up with less money. Even though they could tell by looking at the table in a paper 1040 that that’s not true.

      • cpinva says:

        “In short, they are just wealthy enough to be bitter about what they won’t get.”

        and just dumb enough to buy into the “tax shelters” they hear about at the country club.

      • Bijan Parsia says:

        I think this is all true.

        But there’s another straightfoward set of forces: Socialization, inertia, and epistemic closure.

        Why are my PA relatives so Republican? How about my Rush loving ex-communist uncle? WTF? What’s up with my Iranian who lived in Iran for some part of their youth relatives?

        I mean, I have a Palinite cousin. Bonkers!

        But they live in a fairly heavily Republican area which was definitely a white flight suburb. Throw in some Reagan juice, and rising from worker to middle class (blue coller to white coller) and bam you have generations of Republicans. My Aunt worked for the Republican party county office! Last visit I overheard my cousin and uncle talk about how crappy the investment landscape is and how they were afraid to do anything because of Obama!

        Once captures, how do they break loose? It doesn’t take watching Fox news alone to keep you in the pit.

    • TribalistMeathead says:

      On top of the taxation arguments others have made, the fact that they’re suburbanites means they’re likely to be social conservatives.

    • UserGoogol says:

      Class is a really big factor in how people form their political views, but that doesn’t mean people are motivated by purely selfish criteria. I think that people typically think that the party they’re voting for is in fact better for society as a whole, even if they don’t always argue that position in good faith. (There’s plenty of motivated reasoning to cause perceived self-interest and the perceived general good to converge, so causation gets thoroughly entangled, but people do in fact have beliefs.)

    • djangermats says:

      Republicans support killing as many people as possible, so people who want a lot of people to die vote for them.

      The 150k household wont get anything, but is unlikely to be among the people killed, so its reasonable for people who support death for other people to vote the republican ticket

      Remember, after 70k most people don’t get any happiness out of their wealth, so being better off is worth less than the thrill of killing the helpless by ballot.

  4. bradp says:

    this is not an area in which the political process can be trusted.

    Are there any?

    Ultimately, I prefer judicial intervention because voting and the political process implies that this issue is open to public decision.

    • Jeremy says:

      Right. The 14th Amendment says “equal protection of the laws.” It’s not limited to only the popular cases.

      I know I shouldn’t expect better of him, but it really bugged me to see Andrew Sullivan arguing that the court should make a limited ruling, overturning DOMA and Prop 8, but leaving other states to follow at their own pace, because federalism is an important principle. Sure, that’s great for people like him, who can just live in DC, move to New York later on, and summer in Provincetown, and could take advantage of federal benefits wherever. But he’s totally willing to toss Mississippians who don’t really have the resources to make such choices under the bus until sometime in perhaps the 2020s. What kind of asshole works as long and as hard for a cause as Sullivan has for same-sex marriage, only to say that states’ rights, of all things, is more important than actually letting everyone share the rights he fought to get himself.

      Really, his brand of conservatism is as much “I got mine, fuck you” as the current Republican Party he rails against. Again, I realize I shouldn’t find this surprising.

      • Matt McIrvin says:

        After the Goodridge decision in Massachusetts, I recall seeing at least one gay conservative rail against it on the grounds that, while he advocated same-sex marriage, the right to it was not part of the original intent of the relevant constitutional sections. That’s adherence to principle, I guess.

  5. Shakezula says:

    People who claim otherwise are either depressingly ignorant of history or just plain liars.

  6. Marc says:

    The political argument is the reason why I suspect that the Supreme Court will, in fact, remove it from the political arena. The SC majority serves the interests of the Republican party, and a state-by-state struggle to legalize same-sex marriages is not in the interests of that party. I want them to do the right thing regardless, and if that’s what it takes to pull them along so be it.

  7. c u n d gulag says:

    Haters gotta hate.

    And self-hating closeted gays, you can be pretty sure, will be amongst the loudest of the haters.

    • rea says:

      There is a certain Republican-Senator-in Airport-Restroom type who gets off on the sex being illicit and illegal. Legalizing gay marriage, or otherwise normalizing gay sex, is the last thing in the world that guy wants–we’re destroying all his fun.

  8. Thers says:

    The SC more or less stayed its hand on abortion, in the sense that its legal but can be endlessly litigated as to just how legal it is. And Republicans have been using it as a club for decades.

  9. Speak Truth says:

    I’m a horrible human being.

  10. Warren Terra says:

    I do think there’s a fundamental difference between abortion and same-sex marriage, politically: a marriage is marked by a joyous community event and gives otherwise unobtainable social acceptance and legal rights to people you know well and love – including wealthy people. Abortion is still seen as a furtive, unfortunate affair; at best, it’s treated as a private medical issue, which it is, but is a lot less politically effective than anyone’s big wedding and day-to-day ongoing happiness. More importantly, the powerful and even perhaps the middle class have rarely and likely will never lack for abortion services; the victims of these restrictions are mostly the impoverished and teenagers. This is a critical difference with exclusive access of heterosexuals to marriage: Rob Portman’s hypothetical daughter can get an abortion whatever the local laws, his actual son can’t marry in about 40 states.

  11. Uncle Kvetch says:

    Rob Portman’s hypothetical daughter can get an abortion whatever the local laws, his actual son can’t marry in about 40 states.

    Hadn’t thought of it before, but this is a good point.

    • Scott Lemieux says:

      Definitely true, although it’s counterbalanced by the fact that women who have gotten abortions is a much larger class of people than gays and lesbians.

      • Phoenix_rising says:

        The day they throw a parade, that will become significant.

        Voting behavior happens in private, which is why a blastocyte isn’t legally human in MS or CO–women who know better pulled the curtain and did what made sense, instead of criminalizing their contraceptive pills.

        But policy debate happens in public. And in public, marriage is a party, abortion is a shame. I have thought about this quite a bit and it’s the key distinction that means we’re going to win regardless of route.

        I have my preferences about the route. I also wish that doing the most traditional interpretation of “family” weren’t a requirement for my equality, because of course it’s not equal if there is only one way I can perform it while my sisters have choices that leave all their rights intact. But I’ll take it over abortion any day, as the one issue most vital to my freedom.

  12. cpinva says:

    i agree with the overall assertion being made, most especially when it comes to issues of civil rights: get them anyway you can.

    why should anyone have to wait around for the majority & politicians to decide when they’ll be allowed to enjoy the same rights as everyone else? the short answer is: they shouldn’t. and if that bothers people, too effing bad.

  13. [...] The Non-Inevitability of Same-Sex Marriage (lawyersgunsmoneyblog.com) [...]

  14. ploeg says:

    Indeed. The courts are why we have gay marriage now (at least in some states but not (for example) marijuana legalization.

  15. Data Tutashkhia says:

    So, this time overturning a federal legislation is what the doctor ordered? All power to the states? You guys are not very consistent, I must say. I guess you really are lawyers, aren’t you?

    • Johnny Sack says:

      Are you talking about DOMA? Although I buy wholeheartedly the Equal Protection argument, for me it’s much simpler. Family law is historically and uncontroversially a matter of state law-there’s really no way to dispute this in good faith. So for me personally, argument number one against DOMA is Article 1, Section 8.

      As for state-level equivalents of DOMA-there’s where equal protection is my number one.

    • Glenn says:

      No, the argument is that neither the federal government, nor the states, should be allowed to discriminate in this manner.

      • Jeremy says:

        Exactly. This isn’t exactly that hard to understand. Why, I’d almost think that Data is just being willfully obtuse because that’s what he gets off on.

        Actually, strike the “almost.”

    • Malaclypse says:

      Why, it is almost like the readership here is historically literate enough to know that there has been one, and only one, federal marriage law.

      Well most of the readership, with certain notable exceptions, that is.

      • Bloix says:

        Actually, Data, the people who are arguing that DOMA is an unconstitutional intrusion on state power are conservatives, who are appearing in the case only as amici. The parties attacking DOMA are not making that argument. They are arguing (as do Glenn, Jeremy, and Macalypse) that the statute is violative of equal protection. For a discussion of the conservative case that DOMA is unconstitutional, see, e.g.,
        http://www.volokh.com/2013/03/29/three-senses-in-which-doma-implicates-federalism/

        • Jeremy says:

          To be fair, in a related case that wasn’t the DOMA case chosen for Supreme Court review, the Commonwealth of Massachusetts, under Attorney General Martha Coakley, no conservative, did make pretty much the same argument. The judge in the case simply decided that due to the equal protection violation (he decided a related case at the same time on those grounds), the federal government had no power to impose its definition of marriage on Massachusetts, and he didn’t need to get into the federalism issue any further.

          Massachusetts’ case and the case of the individual plaintiffs were combined for the appeal, which they won, although I don’t know how the federalism question was decided. I also don’t know whether the Massachusetts AG’s office has filed anything in relation to the DOMA case that was just heard by the Supreme Court.

        • Johnny Sack says:

          I pretty much agree with #1 on that linked piece-the federal power problem. That’s why as a judge I wouldn’t get to equal protection-I would strike down DOMA on those grounds. Then again, I wonder how much conservatives like the federalism argument on its own merits as opposed to avoiding an equal protection ruling possibly giving gays heightened scrutiny, etc etc. I think DOMA should fall on federal power and Prop 8 equal protection, but those are my real beliefs and not some sort of convoluted conservative smokescreen.

        • Data Tutashkhia says:

          Well, I was getting the impression, reading these fora, that nothing is more outrageous than the SC overturning a federal legislations. That is an outright racist thing to do. I am curious if that is still the case for this DOMA thingy. Is it that it’s both racist and anti-homophobic, but we should ignore racism in this case? Is that the party line?

    • Scott Lemieux says:

      So, this time overturning a federal legislation is what the doctor ordered?

      1)Um, what? The primary discussion is about the Prop 8 case.

      2)Yes, I believe that the federal government is bound by the 5th Amendment just as the states are bound by the 14th. I don’t believe that DOMA should be struck down on federalist grounds. So, I’m afraid your would be tu quoque is a massive fail. Better luck at the track!

    • sharculese says:

      It is literally impossible that the law should be approached with nuance, yes.

  16. Dilan Esper says:

    Lemieux’s last sentence is true but contradicts everything he writes about left wingers who refuse to support conservative Democrats.

    Remember, one of the people who used gays as a pawn in that way was Bill Clinton, who ran ads for reelection trumpeting his DOMA signing.

    This door swings both ways, and I don’t think left wingers can be required to refrain from making heighten the contradiction arguments if right wing Democrats like Clinton have a free pass to screw over any human rights cause they want to get elected. If human rights are not a pawn, that rule has to apply to everyone, not just the left.

    • Scott Lemieux says:

      Lemieux’s last sentence is true but contradicts everything he writes about left wingers who refuse to support conservative Democrats.

      No it doesn’t. Throwing elections to Republicans isn’t a question of sacrificing issue A to advance issue B; it’s all costs and no benefits.

      Remember, one of the people who used gays as a pawn in that way was Bill Clinton, who ran ads for reelection trumpeting his DOMA signing.

      I think Clinton should have vetoed DOMA. That said, given that it was passed by veto-proof majorities, the policy consequences of this would be nil, and electing Bob Dole would have been substantially worse for LBGT rights overall.

    • Malaclypse says:

      Clinton used people as pawns, and this was indeed a Bad Thing.

      Republicans are still consistently worse, on this issue, and every issue.

      Every politician ever will do many, many Bad Things. The only question is which will do fewer.

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