And, abjuring the wrong side of history, comes out against Prop 8.
Tag: "gay and lesbian rights"
Hysterical predictions aside, Kevin Drum notes that the initiative to overturn the pro-gay-marriage ruling of the California Courts is trailing by nine points. I don’t want to be complacent — things can change — but it is very likely that Prop 8 will fail, and California’s same-sex marriages will be entrenched. Alas, I fear that Kevin is excessively optimistic when he says that “gay marriage will have been approved by the courts, the governor, the legislature, and the public. There’s no way anyone will be able to complain that it’s anything but completely legitimate.” As far is I can tell, many of the people obsessed with “backlash” have no coherent democratic theory except that any social change that makes them or any significant number of people uncomfortable is ipso facto illegitimate.
In other backlash news, Massachusetts state legislators so outraged about judicial usurpation that almost 25% of them voted to throw the question to a referendum voted this week to repeal “a 1913 law that prevents Massachusetts from marrying out-of-state couples if their marriages would not be legal in their home states.” Fittingly enough, the law had its roots in white supremacy, was exhumed in pursuit of similarly bigoted purposes by Mitt Romney, and richly deserves its place in the dustbin of history.
I agree with Sanchez and Patashnik that there’s no necessary contradiction between Obama’s nominal opposition to same-sex marriage and opposition to the California Restoration of Bigotry initiative. As I think I mentioned before, Dan Pinello found a significant number of Massachusetts legislators who didn’t initially support same-sex marriage rights but was opposed to repealing them once granted. Obama’s position isn’t terribly surprising or unusual, and nor is it incoherent on its face.
Still, I also agree with Matt that while this position as a coherent rationalization of his stated views, something simpler is probably going on. More likely, Obama supports same-sex marriage but doesn’t feel he can express this view while trying to hold a national coalition together, but will support same-sex marriage in cases where it’s more politically viable. At any rate, his subjective beliefs aren’t really important; as same-sex marriage becomes more popular Democratic politicians will support it in greater numbers. And while people often focus on the backlash successful litigation provokes among hostile to same-sex marriage, there’s another side to it: litigation also makes voting against same-sex marriage more difficult and provides political cover for politicians who would like to support it but are reluctant to support changes in legislation. In addition, having even a few states where same-sex marriage is instituted and doesn’t produce the hysterically anticipated social apocalypse makes arguments against it harder to sustain, which is why supporters of discrimination fight tooth and nail against expanding rights in every state and support uniform federal standards. They’re fighting a losing battle, and every state victory for human rights makes their defeat more imminent.
NY Governor Patterson has directed that NY will recognize out of state same-sex marriages. It’s not totally clear from the NY Times article whether this includes civil unions that are not called “marriage” from other states. I would expect so.
Certainly, this is not a total victory. Total victory would be the state’s decision to grant same-sex marriages. But it’s a solid step, and hopefully a sign of things to come from Gov. Patterson’s administration.
An outraged California populace has reacted to the Outrageous Judicial Activism of their
unaccountable unelected state court. As you remember, the court, with only the support of other unrepresentative and undemocratic institutions such as the state legislature and governor but in the teeth of strong opposition from pundits who support social change in theory and always oppose it in practice struck down a ban on same-sex marriage. The response: California is showing if anything more support for same-sex marriage than ever. I have no idea if the initiative will pass, but I certainly don’t see much evidence of the predicted political firestorm here.
This reminds me about Jeffrey Rosen’s latest claims about the backlash that will be created by the court’s decision (via Matt Zeitlin.) My research into the subject has convinced me that claims about unique backlashes created by judicial interventions into social disputes are not supported by the relevant evidence. Admittedly, however, some claims are not easy to test empirically and are not obviously incorrect in theory, so any conclusion has to be tentative. The specific claim advanced by Rosen here, however, is just transparently wrong:
But legal reasoning isn’t irrelevant, as the backlash against Roe v. Wade shows: Because Roe was so poorly reasoned, pro-life activists found it easier to rally undecided voters under the guise of attacking judicial usurpation. On that score, the California decision represents a huge opportunity for gay marriage opponents who are already trying to persuade undecided voters to overturn the decision by popular initiative.
The problem here is obvious. In general terms, the majority of the public knows virtually nothing about appellate courts, let alone the fine points of substantive due process or equal protection analysis. And, moreover, of the small group of specialists who have read and understand Roe, a substantial number believe the outcome of the case to be plausible or correct, even if they find Blackmun’s opinion deficient. After all, anyone knowledgeable enough to analyze Roe is also likely to understand that Supreme Court opinions, written by justices and clerks of varying quality and often constructed to keep divergent coalitions together, do not always give the best defense of plausible outcomes. (Brown v. Board, after all, is now our most celebrated decision although few would call it a masterpiece of legal craftsmanship or confuse Earl Warren with a deep legal mind.) Rosen’s argument is therefore implausible on its face; the evidence is unequivocal that the public evaluates Supreme Court opinions, to the extent it does so at all, on outcomes and not reasoning.
And the specific claims about Roe are no more tenable. If anti-choice activists have used Roe to shift public opinion against abortion rights, this fails to actually show up in public opinion data. Moreover, Roe is at least as popular as the underlying right it protects, while Rosen’s assertions require Roe being much less popular. And finally, I think to restate the assertion that anti-aboriton activists would have had no objection to Roe had the opinion been better crafted is to refute it. Seriously, does anybody think that had, say, the Supreme Court followed Ginsburg’s retrospective advice and grounded abortion rights in gender equality that any significant number of Roe’s opponents would have been mollified? Similarly, approximately 0% of the “Yes” vote in the upcoming referendum will be based on a strong opposition to the court’s suspect classification analysis. (It also seems to me that the majority opinion is at least as plausible and well-crafted as the boilerplate, question-begging paeans to judicial restraint in the dissents; if Rosen disagrees he doesn’t explain why.)
Finally I also note that Rosen does not substantiate his claim that Goodridge hurt Kerry in 2004 — which is not nearly as self-evident as some people think — and ignores the fact that overturning Goodridge could not get the support of even 25% of the legislature less than 5 years later. I very, very strongly doubt that the Caluifornia court damaged the Democrats in California any more than they did in Massachusetts, where supporters of same-sex marriage have fared much better than opponents and support for same-sex marriage has increased.
Glenn Greenwald makes the obvious point about Ben Wittes’ critique of the California gay marriage decision: for all intents and purposes, there’s no argument in it. The shallow, bumper-sticker versions of democracy Wittes invokes — that the decision represents the “undermining of the right of people to govern themselves” — prove too much unless you believe that liberal democracy means nothing but simple majoritarianism, which virtually nobody does and at any rate certainly isn’t the constitutional logic of any government in the United States. If taken seriously, these claims are equally applicable against Brown and Loving. Wittes builds his argument around the assertion that arbitrary discrimination on the basis of race is just different than arbitrary discrimination on the basis of sexual orientation. Maybe it is, but he just asserts it repeatedly without defending it. The fact that a majority of Californians may oppose gay marriage is irrelevant to this distinction. Citizens and public officials in most of the states where segregation was ruled unconstitutional were far more committed to apartheid than California is to bans on same-sex marriage. And yet, as Greenwald says, Wittes says nothing about the court’s opinion at all; he doesn’t even begin to make the case that it was poorly crafted or an implausible reading of the California constitution.
This brings up to another point, which is that even if the democratic support for provisions is relevant to construing ambiguous constitutional provisions, we also have to consider what constitutes democratic support. Shouldn’t the fact that a majority of state legislators and the state’s governor almost certainly support the court’s ruling at least be considered when decrying “accretion of power to courts”? But Wittes ignores this, just as suddenly a supermajority in the Massachusetts legislature affirming Goodridge was not longer enough, but instead democratic legitimacy required not just representative majoritarianism but plebiscitarianism. We’ve seen similar shell games about democratic legitimacy from Wittes before: the incredibly shoddy and unprincipled Bush v. Gore is legitimate because it didn’t affect public opinion about the court, but public support for Roe v. Wade is irrelevant to that decision’s “legitimacy problem.” Other than his remarkably consistent conviction that decisions that piss of conservatives are bad and decisions that piss off liberals are good, I frankly don’t know what the content of his standards regarding the democratic legitimacy of judicial review is.
In response to Eugene Volokh, I should say that I’m perhaps making a slightly different argument than the one he’s addressing. My point about the vote in the legislature, as well as the support for same-sex marriage signaled by the governor urging the courts to resolve the issue and opposing a referendum to overturn it, is that claims of judicial usurpation of the prerogatives of the political branches are not in any way a useful description of this case, as a majority of legislators and the governor almost certainly agree with the court’s ruling. As is often the case, the California Supreme Court’s decision does not involve a zero-sum struggle for power, but rather is a case where the courts are resolving an issue because it cross-cuts existing party coalitions. This, in itself, doesn’t mean that the court’s decision was right; it’s possible to disagree on the merits. In many cases, one can also argue that the courts should respond to evasion by the other branches by throwing the ball back, but in this case it’s complicated by California’s silly system allowing its constitution to be amended (and hence judicial decisions overridden) by a simple majority of the popular vote.
I am, however, somewhat puzzled by his implication of disagreement with the proposition that “California Supreme Court’s same-sex marriage decision actually consistent with the democratic process.” In the American system, for better or worse, it’s part of the democratic process for the judiciary to scrutinize the actions of the other branches as well as (in California’s case) popular initiatives and pass judgment about their constitutionality. Strong-from federal review is a well-established part of this process, making California’s effectively very weak-form review certainly consistent with it (as Volokh somewhat concedes here.) I can imagine, in the abstract, an argument that the courts should always defer to other branches or the people unless the text of the constitution is clear. But, in practice, virtually nobody in the American system believes this or acts like this in practice, so these claims generally amount to arguments that progressives should unilaterally disarm. I don’t know if this is true of Volokh specifically, but certainly most of the critics of the California decision have no objection to cases where the courts use ambiguous constitutional materials to override electorally accountable officials to reach more congenial policy results (cf. Parents Involved, Garrett, Morrison) and are also strongly critical of the court in some case where it does defer in the face of ambiguity (cf. Kelo, Raich, Grutter.)
The California court could, I suppose, be criticized for usurping the democratic process if its reading of the state constitution were simply unreasonable, but that’s not the case. The majority’s reading is not commanded by the constitution, but it’s certainly defensible. And if we’re going to have judicial review, protecting unpopular minorities from being arbitrarily excluded from fundamental privileges strikes me as being at the type of case where judicial intervention is most defensible. But even if one disagrees, I fail to see how the court’s holding is in any way inconsistent with democracy as it is actually practiced in this country.
David Weigel says that “Politically, I suppose this is bad news for the Democrats, but not nearly as much as in 2004. For one, it’s not coming out of a candidate’s home state.” Tom Maguire, meanwhile, asserts that the California Supreme Court may have done the GOP a “favor.” As I’ve been through before, though, while I know I’m supposed to see 2004 results in which Bush underperformed structural models as proof of Karl Rove’s strategic super-genius the allegedly large effects of gay and lesbian marriage on the 2004 election have been greatly overstated. And needless to say, predictions about how the New Jersey court’s ruling were supposed to have a major impact on the 2006 elections will vanish down the memory hole.
I don’t really find this surprising. People overstate the extent to which people vote on social issues, and people who get outraged by decisions permitting gays and lesbians in other states to get married are overwhelmingly likely to be Republican voters anyway. I don’t think that the decision today will have any significant impact on the 2008 elections. It may increase turnout in California, but since the state isn’t in play it doesn’t really matter.
On a final point, Weigel over optimistically says that “John McCain voted against the Federal Marriage Amendment: He can’t demagogue this, and he won’t.” Yeah, just like how his alleged “federalist” opposition to Roe stops him from supporting every piece of federal abortion legislation to come down the pike. I don’t know what McCain will do but I am sure that an alleged commitment to “federalist” principles won’t stop him from doing anything.
The California Supreme Court, six of whose seven members are Republicans, has ruled that the exclusion of same-sex couples from the legal benefits is unconstitutional (pdf). The opinion isn’t lucidly formatted but if I count the votes correctly it was a 4-3 decision [confirmed here.]
After finding that marriage is a fundamental right (a premise that should be uncontroversial), the majority holds that the policy cannot survive strict scrutiny: “the purpose underlying differential treatment of opposite-sex and same sex couples…cannot properly be viewed as a compelling state interest for the purposes of the equal protection clause, or as necessary to serve such an interest.” The narrow tailoring argument is I think where the exclusion of same-sex couples from marriage benefits really runs into constitutional problems; it is hard to argue that there are state interests in marriage that cannot be advanced in any other way but to exclude same-sex couples. I will have more on the text later, but if I read it correctly the court seems to require, like the Massachusetts court ultimately did, that reserving the label “marriage” for different-sex marriages is unconstitutional.
I’ll have more on the decision later, but a few points should be made at the outset:
- First, claims that the decision that the court “usurped” the legislature should be undermined by the fact that the legislature passed legislation recognizing same-sex marriage, but had the legislation vetoed by the governor, who urged the court to resolve the issue.
- Second, you will read claims that the decision will spark a massive backlash; keep in mind that the same people made the same argument about judicial decisions in Massachusetts and New Jersey and were mostly wrong.
- Finally, Kevin Drum notes that there will almost certainly be a vote in the issue in the November; hopefully a majority of citizens will not vote to repeal the rights of some California citizens.
Yesterday’s Times article about the inequities of civil unions is indeed important reading. In many contexts, obtaining civil unions is an improvement on the status quo, but it’s also important that civil unions haven’t produced marriage-in-all-but-name but in practice seem to fall short of equality. For state courts considering the question, such inequities seem relevant to whether civil unions (as opposed to equal marriage rights) can be consistent with the equal protection of the laws, especially since the legislative entrenchment of gay marriage in Massachusetts makes assumptions that civil unions will provoke much less backlash than actual equality quite questionable.
Writing about the “is sexual orientation genetic or is it a choice?” pointless dichotomy, M. Leblanc makes a point that isn’t made often enough:
Arguing that things are out of someone’s control, and thus beyond criticism or bigotry, is a seductive tactic because it mirrors the arguments that are used against race discrimination. But the problem is, it’s the wrong metric.
“Choice” or “environment” is the wrong way to determine what reasons are good reasons to hate others. Discriminating against or hating someone for being fat or gay makes you an asshole because there’s nothing wrong with being fat or gay. Not because it’s not a choice.
Right. From a liberal standpoint, the correct answer to the question of whether sexual orientation is voluntary or not is “who the hell cares?” To argue that gays and lesbians “have no choice” or whatever is to implicitly accept the frame of bigots; the underlying assumption seems to be that if people did choose to have sex people of the same gender then legal discrimination would be perfectly acceptable. But such discrimination should be opposed because it’s completely irrational. Whether someone has a strong genetic predisposition towards homosexuality or not shouldn’t affect whether the rights of gays and lesbians are protected.