In yet another manifestation of the massive backlash against Goodridge, which set back same-sex marriage rights for decades, Maine has ended its denial of fundamental rights to same-sex couples. Hopefully this will help persuade New Hampshire’s governor to do the right thing too.
Tag: "gay and lesbian rights"
Although I participate, I rarely link, but this week’s results for the National Journal bloggers poll are kind of interesting. Leftish bloggers overwhelmingly support the idea that the Democratic Party should support gay marriage, and rightish bloggers are pretty deeply divided as to what the position of the Republican Party should be. Allowing that right wing bloggers are more libertarian than the party as a whole, it still seems to me to suggest that gay marriage is understood to be a long term loser for the right.
Neither house of Iowa’s legislature has the slightest interest in a constitutional amendment overriding the state Supreme Court’s perfectly plausible holding that denying same-sex couples marriage rights violates the state’s constitutional admonition that “the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Why, it’s almost enough to make me wonder in what sense the Court’s decision was a “usurpation” of the will of Iowa’s current legislators in the first place.
Meanwhile, the massive backlash is also evident in Vermont. I mean, the Vermont House could only barely scrape up a 2/3rds majority to override the governor’s veto! I hereby arbitrarily declare that to be really democratic they would need at least 90% of the vote in both legislatures and a referendum.
Rather than continue the argument in comments, a few responses to Paul’s arguments against Varnum:
- It’s worth distinguishing between two arguments that Paul seems to be shifting between, one of which is true but trivial and one of which is potentially interesting but (at best) unsupported. It is, of course, true, that the text of the Iowa constitution did not “compel” the conclusion that the state’s ban on same-sex marriage was impermissible. But this is (as Paul seems to concede) not so much an argument against the court as an argument against judicial review, since any constitutional question of any interest is going to allow a number of reasonable answers. Given that the Iowa courts were empowered to review legislative enactments, however, this argument is essentially useless. Moreover, if taken seriously this would not just be an argument against judicial review but against high appellate courts in general; pretty much by definition cases heard by these judges require them to choose between multiple plausible interpretations of statutes and/or constitutional provisions and/or controlling precedents. Again, if Paul wants to define most of what appellate judges do as not-law that’s his privilege, but it doesn’t strike me as very useful or illuminating. Saying that politics influences how judges will choose among multiple plausible interpretations, though, is not to say that law is nothing but politics.
- If this is all Paul was arguing, though, it’s not clear why the Iowa Supreme Court merits any particular criticism, since it’s no more guilty of “legal hocus-pocus” than pretty much every consequential decision issued by every state or federal appellate court in the country. And, indeed, in the original article Paul suggests that the decision was particularly “egregious” “nonsense.” This would be a more interesting claim, but alas Paul’s bare assertions in its defense aren’t much more convincing than Ed Whelan’s. What, exactly, about the opinion is egregious, as opposed to simply an utterly banal exercise in choosing between multiple competing interpretations of a legal text — did it mischaracterize the relevant precedents? Was its interpretation in contradiction of the constitutional text being analyzed? Was it internally inconsistent? Not to my eye, and Paul provides no evidence that anything of the sort is true. Indeed, “question-begging nonsense” would be much better applied to Paul’s apparent assumption that because Iowa’s equal protection clause cannot be applied with mathematical precision the judges required to interpret it should pretend that it has no content at all.
- Paul also seems to be missing the point about why the comparison to Bush v. Gore is so specious (while a comparison to, say, Parents Involved or Heller would be much more accurate.) The unique problems with Bush v. Gore have nothing to do with it being a “ridiculously transparent bit of circular question begging.” Kennedy’s defense of the opinion’s equal protection innovations is indeed exceptionally weak (and on any standard of craftsmanship, I think, far, far worse than Varnum), but that’s not the key issue; the holding is not, in isolation, indefensible. The real issue is such problems as 1)the fact that the remedy was completely inconsistent with the purported holding, 2)the Court’s attempt to cabin the holding so that it wouldn’t apply to other essentially identical cases, and 3)the fact that the alleged constitutional violation was a result of a Catch-22 created by the Court’s previous directive. Such things, as opposed to the ordinary judicial act of choosing among multiple plausible legal meanings, really are inconsistent with the rule of law. The Iowa court did nothing comparable.
- I’m going to largely leave the discussion of Rosenberg — whose argument is considerably more problematic than Paul claims — to another post. But one accurate lesson of Rosenberg is that courts aren’t in a position to “impose” anything; judicial review itself only exists because of the substantial political support for it. And in this specific case, the Iowa legislature is free to propose overturning the court’s decision if it chooses. To claim that this particular constraint on the choices of elected officials — as opposed to the countless other “countermajoritarian” checks that are part of every state’s government — is particularly undemocratic is, to coin a phrase, question-begging nonsense. Maybe it is, but this really needs to be argued, not assumed, and any definition of democracy that contains no more normative content than “majority decisions of elected officials” is not going to be very attractive.
I expressed hope earlier in the week that Vernont governor Jim Douglas wouldn’t veto legislation granting same-sex marriage rights that is poised to pass both houses of the state legislature overwhelmingly (it has already passed the Senate 26-4.) Alas, it seems that Douglas will veto the legislation.
“The urgency of our state’s economic and budgetary challenges demands the full focus of every member and every committee of this Legislature.”
Apparently, the focus of legislature on economic issues will be better maintained by forcing them to waste time assembling the votes to override the governor’s disgraceful veto rather than simply signing the legislation and being done with it. Hopefully activists and Vermont are getting ready to ensure that the legislative supermajorities will do the right thing.
Barney Frank’s recognition of Antonin Scalia’s contempt for gays and lesbians has gotten predictable pushback from the likes of Fox News and Ann Althouse. The latter asserts that Frank is “either lying about having read [Lawrence v. Texas], lying about what Scalia wrote, or an embarrassingly incompetent reader.” Given how tendentious Althouse’s argument is, I would pretty careful about these kinds of charges.
The most disingenuous sleight-of-hand in Althouse’s argument is to imply that the Scalia and Thomas dissents in Lawrence were making essentially the same argument. But, of course, this isn’t true. Thomas, quoting Potter Stewart’s famous line in Griswold, calls the law he has voted to uphold “uncommonly silly.” Scalia expressed no such judgment. And, indeed, presumably the argument in Thomas’s solo dissent — two short paragraphs that could have easily been put into the main dissent — wasn’t included in Scalia’s because Scalia doesn’t agree that the law is objectionable. And while Althouse is (as always) very impressed by trite assertions of judicial restraint when made by reactionary justices, Scalia doesn’t apply such values consistently, and has also been willing to ignore original meaning when it contradicts cherished policy beliefs, making it more likely than not on its face that his vote in this case is consistent with his policy views. (In this, Scalia is no different than any other judge ruling on constitutionally ambiguous issues, but that’s no reason for this kind of naivete.)
But it’s not just that; as the first link above notes, Scalia has consistently made his contempt for gay and lesbian rights clear, and his relevant dissents have hardly been narrow, technical ones. Consider, for example, one of the paragraphs preceding the one Althouse cites, which she didn’t include for obvious reasons:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.
The odds that someone fulminating about “the so-called homosexual agenda” in the United States Reports isn’t hostile to gay and lesbian rights are roughly equivalent to the odds that the Prohibition Party will get 300 electoral votes in the 2012 elections. And here are some more excerpts from the dicta in his Romer dissent:
The Court has mistaken a Kulturkampf* for a fit of spite….This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality, is evil…The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even “animus” toward such conduct.
[*Reference to discriminatory, anti-Catholic policies taken by Germany under Bismarck. Why this is supposed to be a defense of Colorado’s discriminatory policy remains mysterious, but does not add much credibility to claims that Scalia is a neutral observer of the culture wars.]
Call me crazy, but unlike Althouse I do not consider spurious analogies between consensual same-sex relations and murder to be the likely output of someone with no opinion about gay and lesbian rights. Scalia’s opposition to gay and lesbian rights is plain to see, and I see no reason why Frank shouldn’t point it out.
The outcome looks bad from a policy perspective, although legally it must said that the argument for striking down Prop 8 in the abscence of a federally enforceable right are pretty weak. At least it appears as if the marriages that took place under the more just staus quo ante won’t be nullified.
Michelle Goldberg on signals that Obama will rescind “don’t ask, don’t tell”:
Granted, he didn’t say when it was going to happen, but it’s definitely an encouraging sign, and one with far more concrete repercussions than the participation of Warren in the inauguration. That doesn’t mean choosing Warren was a good idea – Obama still elevated the already too-high standing of a fundamentalist ideologue. But if this pattern holds – symbolic sops to the right, followed by real-world gains for gays and lesbians – it will be a huge improvement over Bill Clinton, who did almost exactly the opposite.
Of course, as Goldberg implies Obama shouldn’t be given credit for the good policy change until it happens it either. Symbolic losses for policy gains is a tradeoff worth making if he comes through on the
former latter, so we’ll see. Which is why, despite the need to talk about something in the dead time for politics, there’s no point in reaching judgments either way until we see what actually does. People who claimed in 1962 that LBJ was playing supporters and opponents of civil rights for suckers would both have had plenty of ammunition. If we’re lucky (and put on enough pressure), Obama will (in the manner of LBJ) will shiv his more unsavory allies; if we’re not, in the manner of JFK he’ll talk a good game sometimes and not actually do much of anything to avoid upsetting his unsavory allies. I’m betting that he’ll be closer to the former (or I wouldn’t have supported him), but until we see how he actually performs in office, the question will simply remain open.
As part of the transition team’s “Open for Questions” project, press secretary Robert Gibbs responded to questions posed online and voted on by visitors to change.gov. The final inquiry: Is the new administration going to get rid of the “don’t ask don’t tell” policy?
Gibbs responded, “Thaddeus, you don’t hear a politician give a one-word answer much, but it’s yes.”
FWIW, I’ve been told by people in the military that there’s almost no stomach to fight for Don’t Ask, Don’t Tell, and that in any case the retention of Robert Gates has been so popular that Obama has an enormous reserve of political capital. Then again, Don’t Ask, Don’t Tell has never been just about the military; even if the officer corps was strongly in favor of scrapping, Republicans could still be relied upon to demagogue it.
Some excellent work from Dan Savage here:
The point about churches engaging in political funding and activism and then hiding behind the bushes is a particularly important one. It’s also good that Savage has apologized for his post-election scapegoating of African-Americans.
By the way, does the backlash against Prop 8 prove that initiatives are a bad political strategy? Or does this logic only apply to backlashes against progressive strategies?
Jeffrey Rosen tries to spin the narrow passage of Prop 8 into a triumph for his prediction that In Re: Marriage would instigate a massive backlash, and he’s no more persuasive than McArdle. The central problems remain the same: he doesn’t explain how the decision made the status quo worse or made the entrenchment of same-sex marriage rights less likely (because such a claim would be transparently false.) Nor does he provide any evidence that judicial intervention made same-sex marriage any less popular. And, again, since the striking down of an initiative supported by more than 60% led to the passage of an initiative supported by 52%, I presume he doesn’t provide any such evidence because it doesn’t exist. Rosen makes some other assertions that are unburdened by evidence; for example, I would love to see some empirical justification for his claim that the Supreme Court’s tepid early-70s gender discrimination decisions torpedoed the ERA. A few other points:
- It’s strange that he would bring the recent decision by the Connecticut courts into it, since he provides exactly no evidence that this decision had produced any backlash or that the court’s decision will not produce a stable policy otucome. Given that the governor has essentially conceded that the court’s decision will in fact stand, this lack of evidence is understandable but also fatally undermines his central argument. Litigation has led to stable same-sex marriage regimes in two states, and very nearly did in a third. Seems like good odds to me, considering that before the litigation started the number was zero.
- Even more bizarre is his claim that Brown is an example of a decision by a court much more savvy about backlash than the California courts. Is Rosen seriously claiming that a decision that was unenforceable in many of the states it affected and radicalized Southern politics produced less backlash than In Re: Marriage? I don’t think Brown provides good evidence of a unqiue judicial backlash, but it certainly led to far, far more backlash than Rosen’s bete noires.
- Rosen compares the anti SSM initiatives with the less successful abortion initiatives, but doesn’t seem to realize that in doing so he’s moving the goalposts to the 40 yard-line. Roe, of course, is at the center of Rosen’s claims about judicial backlash. And what we found this year is that after 35 years of Roe…abortion rights remain popular, and aboriton remains legal in every state after having been illegal in 46. How this provides evidence that litigation is counterproductive escapes me. I assume he’s arguing that this proves that the repeal of most abortion statutes was inevitable, but this betrays a fundamental misunderstanding of American politics. Veto-point-laden institutions favor the status quo, and this is particularly true for statues (like bans on abortion) that disproportionately affect the politically powerless. It is much easier for the anti-choice minority to keep existing statutes on the books than to create new ones.