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Category: gay and lesbian rights

Courts and social change, again

[ 36 ] February 6, 2013 |

My friend Russell Arben Fox has come a long way in the last few years (see here to chart the progress), and I am delighted he’s now joining me in celebrating the fantastic news from the UK yesterday. While I have some sympathy for the democratic theory that motivates his argument in this post, I think the theory he expresses here has a lot of problems. This paragraph, in particular, isn’t at all clear about the proper role of judicial review in Foxland:

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is “no”–but my answer to the former is that I just to don’t believe that opponents of same-sex marriage are operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation were. It’s quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can’t deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can’t see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for as somehow so obviously out of line with our country’s evolving political ideas so as to deserve a judicial squashing.

There’s a mixed message about here about the appropriate standard for judicial intervention in rights protection. Russell suggests that Brown is acceptable while Varnum and its cousins are not (or at least less so) because of the degree of ‘irrational animus’ present in the opponents of desegregation compared to the opponents of marriage equality. (As an aside, I note that this changes the proper task for judges in a democracy–in addition to interpreting the proper bounds of equal rights, you charge them with the task of interpreting the degree of irrational animus amongst the opponents of a particular rights claim; if judges are not capable of addressing the former with sufficiently apolitical dispassion, what would motivate the belief they are capable of the latter task, which seems every bit as difficult and fraught with opportunities to import one’s politics?)  But at the end of the paragraph, the standard for judicial intervention is how “out of line” rights opponents are with “our country’s evolving political ideas.” I can’t recall if Russell has ever directly addressed Loving (he mentions it in passing later in the post in a way that would seem to suggest he’s a fan), and I’d be curious to see him do so. The standard he suggests at the start of this paragraph would seem to align him with the majority, as he’s established that racist public policies reveal and irrational animus. But by his second standard, Loving would seem to be highly illegitimate; it came at a much earlier moment (but clearly still midstream in that particular democratic deliberation) in the evolution of views on interracial marriage in this country than we are at presently with marriage equality for same sex couples.

Readers will not be surprised to learn that I am not entirely persuaded by Russell’s view that the irrational animus isn’t a significant part of the opposition to marriage equality today. I’ll concede here that holding the view that a certain version of gender complementarianism provides the best foundation for available for marriage is not, taken alone, sufficient evidence of irrational animus against gays and lesbians. However, the view that gender complementarianism is the ideal for marriage and therefore we should use the coercive power of the state to prevent some (same sex) marriages that do not conform to this ideal, but tolerate many other (opposite sex, but based on feminist/egalitarian principles) marriages that openly flaunt and reject this vision) is clearly evidence of an irrational animus; it’s singling out a tiny minority—one that’s already legally and socially vulnerable, in large part because a substantial majority of the very same people that oppose their marriage rights also oppose civil unions and inclusion in anti-discrimination statutes—for a highly selective effort to legally enforce a fundamentally, transparently unenforceable ideal of marriage. (Perhaps it’s sufficient to pass the Court’s rational basis test, but that’s the sort of reasoning Russell wants to move away from, with good reason). Furthermore, Russell’s argument that many states have been willing to enact civil union statutes that approximate marriage in legal form (as evidence against irrational animus among SSM’s opponents), applies to a small minority of same sex marriage’s legal opponents. In Washington State in 2009, 47% of the population voted to rescind the state’s civil union law; three years later 46% voted to rescind marriage rights for same sex couples. The pattern—where the votes and financial support for the campaign came from—were virtually identical. That a handful of moderate legislators have made this distinction does not, in fact, suggest that opponents of same sex marriage as a group do; voting patterns on civil unions and SSM reveal that the majority of them clearly do not.

Finally, Russell makes an argument with which I have some sympathy: he is concerned with the reduction of democratic debates to “judicial claims and counter-claims” and the distortion of our public discourse constitutes a democratic cost. I don’t exactly disagree, although this is probably a much more minor concern for me than it is for him. But: every form of institutional social chance carries democratic costs. Consider, in comparison, the costs of achieving SSM by plebiscite, which (arguably) surpasses legislatures as a democratic way of addressing this issue, particularly given the various countermajoritarian features of contemporary legislatures. What does *this* do to our public discourse? Opponents of SSM figured out a formula for winning elections in an environment in which a majority is at least sympathetic to equal rights for gays and lesbians (whether it’s marriage rights, civil unions or inclusion in anti-discrimination statutes): to suggest and imply that equality and recognition for gays and lesbians inevitably constitutes a significant threat to the well-being of children. This is a breathtakingly ugly bit of demagoguery, and it’s been cheerfully repeated and funded by the major organizations that oppose SSM (including Russell’s church), and has been depressingly effective (until, blessedly, 2012) in persuading those on the fence to side against rights for gay and lesbian couples. (That SSM opponents are so willing to pursue this line of reasoning, and are so susceptible to it is also, I think, evidence that irrational animus is playing a larger role than Russell admits). But this ugliness doesn’t mean I oppose efforts to legalize SSM by plebiscite! Any form of social change has costs, and the nature of the costs of judicial, legislative, and plebiscitary varies. But if we’re going to talk about the costs of one of these methods, we should do so comparatively, not in isolation.

Ultimately, I think Russell is conflating two moments of democratic theory. At the first moment, the question of proper institutional design for a democratic polity, I have a fair amount of sympathy for the Waldronian case against constitutional judicial review, although I would probably still reject it in some cases. I certainly agree with Russell that the UK offers a better model for democratic institutional structures than the US does, although largely for reasons other than the role of judicial review. But Russell consistently moves too easily from democratic theory at the moment of institutional design to democratic theory after the question of institutional design is (provisionally) settled. This is evident in this old post on school funding, where Russell argues (correctly, in my view) that disputes over the funding of public schools probably shouldn’t be settled by lawsuits as a general practice, and suggests (incorrectly) that citizens who use this avenue to protect public school funding in their community are in some sense failing to behave as proper democratic citizens, even though this is precisely the mechanism the State of Kansas has set up for them to demand greater funding for public schools in their community. My view is this: activists and citizens should feel free to be pragmatic and strategic in choosing which institutional route to social change to pursue, even if that form is less than ideal. (My reservations about plebiscitary democracy are, I think, at least as strong as Russell’s about judicial review, but as long as we’re stuck with it, as we surely are in many states, I don’t begrudge my allies or my opponents effort to use it). Democratic citizens are always going to operate in an environment of less than ideal institutional arrangements, and there’s no sense in pretending otherwise. But the case for the legitimacy of judicial strategies is particularly strong in the US, I think, since our political system (including our legislatures) is so effectively larded up with countermajoritarian choke points that frequently empower powerful minorities to hold up social change with substantial support in the realm of public opinion.

All this reveals, I suppose, that at the level of democratic theory I’m more of an agonist and less of a deliberativist than Russell. I suspect that, given my (less charitable) read on the quality of arguments against same sex marriage (and civil unions, and anti-discrimination statutes), combined with the observation that the most efficient path to change minds on this issue, and (I suspect) the main driver of social change on this issue, isn’t particularly good arguments about the scope of rights or the nature of marriage or anything else, but the condition of actually having gay and lesbian people in one’s life, as family members, friends, or community leaders. The best way to continue this positive social transformation, I suspect, is not to persuade the wary via democratic deliberation, but to achieve equal rights by whatever mechanism is most efficient, and live publicly and openly as equal citizens, and watch the irrational fears melt away. How we live is a part of democracy as much as what we say. Acquiring legal rights, regardless of the acquisition mechanism, facilitates gays and lesbians’ capacity to live as equal citizens, which, in the end, is likely to be far more persuasive than anything they could say.

The argument from definition

[ 36 ] May 29, 2012 |

John Corvino:

Early in our collaboration Maggie Gallagher e-mailed me with the following challenge, “What’s your definition of marriage? If you’re going to use a word, you need a definition of the word.”

I doubt that.

After all, most English speakers can competently use the word “yellow,” but ask the average person to define the term (without merely pointing to examples) and watch him stammer. Then try words like “law,” “opinion,” “religion,” and “game” just for fun. It’s quite common to have functional knowledge of how to use a term without being able to articulate its definition.

Okay, you say, but as someone deeply involved in the marriage debate, surely I have some definition to offer? Yes and no. I have definitions to offer, not a single definition.

As already noted, marriage is multifaceted. It can be variously understood as a social institution, a personal commitment, a religious sacrament, and a legal status. It looks different from the spouses’ perspective than it does from the outside; it looks different respectively to anthropologists, philosophers, theologians, lawyers, and so on. Each of these perspectives can tell us something about what marriage is; none of them is complete or final. So my rejection of a single, final definition stems not from the fact that I don’t know what marriage is, as critics will doubtless allege, but from the fact that I do. As one writer helpfully puts it: “There is no single, universally accepted definition of marriage—partly because the institution is constantly evolving, and partly because many of its features vary across groups and cultures.”

The post is well done and worth reading in its entirety. I pass this along because it’s an excellent demolition of the argument by definition strategy, which is always an exercise in sophistry when dealing with a concept that has a complex social history and is both an empirical and normative capacity. I can’t say I’m a fan of the project from which this post is drawn, however: Oxford University Press is among the most prestigious academic presses in the world; from what I’ve seen of the quality of Maggie Gallagher’s arguments regarding marriage equality (let alone her problems getting her facts straight) they don’t come close to what I understand the standards of that press to be. I’m not prepared to join the call to boycott engaging with her; for better or worse she’s a major spokesperson for the anti-marriage equality position and should be treated as such. But unless she’s managed to up her game substantially, the book won’t meet what I’ve come to understand OUP’s standards to be. I don’t think she’s worth it.

Win the battle, lose the war

[ 30 ] May 12, 2012 |

Speaking as someone who teaches at a university with a comparatively conservative and religious student body, this post by Rachel Held Evers rings very true to my ears. I was particularly struck by the following:

When asked by The Barna Group what words or phrases best describe Christianity, the top response among Americans ages 16-29 was “antihomosexual.” For a staggering 91 percent of non-Christians, this was the first word that came to their mind when asked about the Christian faith. The same was true for 80 percent of young churchgoers.

Heckava job, homophobes.

Vaguely relevant anecdote: Earlier this semester, I mentioned in class as an aside that discrimination against GLBT people was perfectly legal in many states. The students, ranging from left to right, were unanimous in their reaction: shocked that such a thing would be legal in this day and age, and disgust and horror at that fact. Said shock and horror intensified when I told them Ohio was one of the states where such discrimination is still legal…

What’s particularly striking is that back when the contemporary religious right really got going in the late 1970′s gay-bashing was a good way to persuade those outside of their political-religious milieu of their status as defenders of public morality. Now, it’s doing precisely the opposite.

The Super Bowl ads were more important than you thought

[ 11 ] February 10, 2012 |

Yesterday Dalia Lithwick had an excellent column on the lack of actual arguments from the anti-marriage equality forces. This was certainly in evidence to anyone watching the debate in the Washington house of representatives earlier this week. With the outcome not in doubt, the defenders of discrimination tended to wax philosophical, with hilarious results. There are a lot of options, of course, but my personal favorite came from Mark Hargrove, who represents the fine people of the 47th district, describing the epiphany he had while watching a Jack in the Box commercial. Mr. Hargrove is surely not the first person to have a profound philosophical discovery while watching a Jack In The Box commercial, nor will he be the last. The key difference, it seems to me, is that the vast majority who experience such a revelation have the good sense to keep quiet about it once they sober up.

Marriage equality in Washington

[ 37 ] January 23, 2012 |

Haugen makes 25. Unless someone backs out, the votes are there.

It’s very, very likely an initiative to repeal this will be on the ballot in November. One recent poll suggests Washingtonians would prefer to keep the law rather than repeal by a 17 point margin (55-38). As we’ve seen in California and Maine, the bigot’s playbook (basically, lie about what this means for religious freedom, make absurd claims about indoctrination of children) can work. But that’s a big gap to close; I’m skeptical the usual strategy will work well enough to close this gap.

I was also pleased to see an email today from Jay Inslee (likely Democratic gubernatorial candidate, who should be considered an underdog at the moment) celebrating the news and blasting Rob McKenna (likely Republican gubernatorial candidate) for anti-equality stance, both because it’s a smart move politically (He may need to convince voters he’s not ‘too liberal’, but he also needs to convince voters McKenna isn’t the moderate he purports to be; this issue is much more useful for the latter task than the former) as well as the right thing to do.

A great day for Washington. The lessons of Maine and California make me nervous about November, but I’m cautiously optimistic.

… other marriage news, NOM celebrates this historic day by taking a few gratuitous whacks at parody’s bloated and rotten corpse.

Marriage Equality in Washington, update

[ 16 ] January 19, 2012 |

Kastama’s on board, now only one vote away. And Microsoft is publicly supporting the effort, which will hopefully give Andy Hill the push he needs to get Washington on the right side of history.
Yesterday I was handicapping this as a slight favorite to pass, perhaps a -125. With these two developments, we’re now at least at -250, I think.

Kudos to Jerry Brown

[ 57 ] July 15, 2011 |

Given the massive attack by conservatives on teaching U.S. history (particularly with the Texas textbooks), I am very pleased to hear of Jerry Brown signing a bill ordering the teaching of gay history in California schools. Like with Texas, California controls a huge chunk of the history textbook market and the inclusion of gay history in the textbooks means that students in many other states are likely to get it too.

Once More Back to the Well

[ 0 ] September 2, 2007 |

I was just about to write a post noting that virtually every commenter to this post ignored the actual point of the post and simply returned to argue again and again the peripheral question of whether the police had the formal legal authority to make the request, and noticed that aimai largely beat me to the punch:

This thread seems to me to be interestingly off point for scott’s actual post which was not a criticism of Craig’s arrest (or applause for it) but simply a straightforward amplification of something that female posters have been posting here which is that this kind of stuff happens to women *all the time* and we are not expected or encouraged to demand police protection from guys seeking consensual sex from us–even if the solicitation interferes with our use of public space. Its fascinating to me that the usual suspects (the very posters who got most hysterical about the “threat” to them personally of being solicited for sex by a gay man, mostly just skipped over Scott’s basic point to continue wrestling the sex-in-bathrooms-wrong point.

No one contends that private sex acts in shared public spaces is wrong, possibly uncomfortable, and kind of selfish–that’s what all privatization of public spaces is and it really doesn’t matter whether it is a single smoker taking over an entire restaurant with his cigar smoke or a sexually active couple taking over a library table in a public library. So much we can all agree on.

But the actual solicitation for sexual contact? That not only shouldn’t be illegal *its not illegal*. Things have to go way past “hey babe, wanna do it” before the police usually get involved. And men robustly defend their right to dominate public space with cat calls, winks, lears, and hey babe’s *when they imagine their own rights would be infringed by some other cultural/legal regime that would penalize that* and they routinely *call for more enforcement an dpunishment* when they imagine the women in their lives are subjected to the harrassment.

Its just a double or even quadruple standard in which the gender of the participants, the nature of the public space, the timing of the event, the desirability (race, gender, religion) of the harrasser *all* come into play.In fact its not possible to come up with a single acceptable “rule” about public solicitation fr sex and its badness. You would actually need some kind of spreadsheet which could be read up or down, across or sideways, to predict whether a given act would create discomfort in a given guy if it hypothetically happened.

This is correct. Two more points:

  • Nowhere have I said that I’m especially sorry about Craig’s political fate. To reiterate, the double standards that stigmatize homosexual set and make the constant sexualization of women irrespective of context are ones that Craig has largely devoted his political life to upholding. It is also true, however, that these double standards are wrong, and the vast majority of gay men subject to harassment and women subject to public harassment considerably worse than anything Craig did on a routine basis have nothing to do with creating these social norms. So I also don’t see much taking much pleasure in his downfall. So now Idaho will have a Senator probably without the double life and equally odious political positions. So now what? What are progressives supposed to be celebrating here?
  • The other major counter-argument of the thread was reliance on the frail tautology that Craig was possibly signaling a willingness to engage in illegal activity and hence violating the law that therefore all analogies with the treatment of women are null. Obviously, the idea that double standards should be beyond criticism as long as they’re reflected in the writing or application of laws is too silly to even merit a substantial rebuttal. But as for the idea that Craig was being treated equitably, two words: David Vitter. Moreover, it’s not just that he’s been permitted to remain in the Senate; he hasn’t been arrested although he’s guilty of criminal behavior that is usually a more serious offense on the books and at least arguably involves economic exploitation while Craig was engaged in purely consensual and non-commercial behavior. And it’s not as if Vitter’s exemption was the result of a de facto decriminalization, which would be fine with me; the people who provided him with the illegal sex work certainly aren’t exempted from punishment. The comparative political and legal treatment of Craig and Vitter makes the attempt to assess the former’s situation in an entirely decontextualized manner makes no sense.

See also Hilzoy.

Craig and Gender Double Standards

[ 0 ] September 1, 2007 |

A couple of our commenters made this point well, too, but this post very effectively expresses my puzzlement over various male commenters who seemed to think that having a foot tapped and hand rubbed on the side of a bathroom stall to signal sexual desire is a completely unconscionable act mandating immediate police intervention:

What I find more astonishing is the definition of “disorderly conduct.” By this reckoning, ten years and thirty pounds ago, I had disorderly conduct foisted upon me approximately…let’s see…15,923 times.

Per week.
Give or take.

But, even if they’re unwanted advances, that’s the natural order of things, right? Whereas men have to be protected from the unwanted advances of men at all costs (why? because they’re worried they just might succumb to a particularly persuasive piece of foot telegraphy?).

Given the constant, daily harassment women endure (come on now, don’t tune out; stay with me, here) — harassment that makes us compress our daily activities into daylight hours, that circumscribes where we go, who we go with, and even what we wear; intrusive harassment, ruin-your-day, make-you-feel-powerless/angry/depressed harassment — the overzealous prosecution of the toe-tapper really pisses me off. It’s like those sophomore discussions one has of human trafficking, in which someone invariably says “but what about the men?”, and then the rest of the discussion, in some form or another, is overwhelmingly preoccupied with those minority cases. Heaven forfend we don’t keep men front and center, even if it makes lousy Bayesians of us all.

Look: if there’d been groping, a physical risk, or even just a persistent advance in the face of a single “no” (which doesn’t seem to have ever been uttered), I’d be supportive regardless of the gender base-rates involved. But “he tapped his foot and looked at me funny”? Please! Men! Grow a pair!

Indeed; I’ll also add that as far as Craig knew the advance was not unwanted but invited, which makes the case particularly problematic (although I don’t know if it rises to the standard of entrapment under Minnesota law.) The rest of the post is sound analysis, too. [Via Prettier Than Napoleon via Catherine Andrews.]

UPDATE: Further thoughts here.

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