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Tag: "gay and lesbian rights"

Antonin Scalia, Homophobe

[ 3 ] March 26, 2009 |

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.

Prop 8 Oral Arguments

[ 0 ] March 6, 2009 |

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.

Proof of the Pudding

[ 0 ] January 13, 2009 |

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.

Hopefully a Quick End to Don’t Ask, Don’t Tell

[ 0 ] January 10, 2009 |

Benen:

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.

But I Manage ‘Cuz I’m A Savage Inside

[ 0 ] November 13, 2008 |

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?

More Prop 8 "Backlash" Arguments

[ 0 ] November 7, 2008 |

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.

A Failure of Leadership

[ 0 ] November 6, 2008 |

Kevin Drum suggests that “Obama has a notable streak of temperamental caution that serves him well, but it could also betray him. Maybe he could have turned the tide against Proposition 8 in California if he’d been willing to take a risk on its behalf.” In this case, it’s a fair knock.

I can understand the difficulty of the problem. Injecting new issues into a campaign is a loser’s strategy; when the most salient issues favor you, you don’t rock the boat. Obama’s primary and general election campaigns were superbly disciplined and stayed consistently on message, and I can understand wanting to avoid the same-sex marriage issue.

But, ultimately, in the last week or two of the campaign it was overwhelmingly clear that Obama was going to win, it was clear that Prop 8 was going to be close, and it was also clear that same-sex marriage was going to be an extremely marginal issue in the federal election. Obama had already come out against it; if the McCain campaign was planning to exploit it they would have already done so. Making a statement (however cautious) against Prop 8 in the last week of the campaign could have made a major contribution to human rights without threatening Obama’s lock on the electoral college. Even to a risk-averse politician, that should have been a no-brainer, and it’s fair to criticize Obama for failing to do the right thing.

Litigation and Strategy

[ 0 ] November 6, 2008 |

In response to Matt’s point here, if I understand correctly most gay and lesbian rights groups (especially in recent years) haven’t opposed all litigation (Goodridge was the result of a carefully coordinated combination of seven lawsuits with support from LAMDA, for example.) Rather, they have opposed federal litigation, which given the non-existent chance of victory with the current composiiton of the federal courts makes sense. On the other hand, as a practical matter, it would in fact be difficult to file a serious lawsuit seeking your marriage rights without any support from prominent civil rights organizations. Nothing can stop you from filing, but without the resources to pursue the a good case through appeals, amicus briefs from prominent organizations and individuals to signal sympathetic judges, etc. your suit is unlikely to get anywhere. So prominent national organizations do have some (although far from total) ability to control the process. (And, of course, there’s often disagreement among organizations about the optimal strategy, which further complicates things.)

The potential tension between the immediate interests of plaintiffs and the demands for a coherent national strategy was also a major part of the LDF’s civil rights litigation (and a particularly difficult problem, since finding plaintiffs in the Jim Crow south, for obvious reasons, wasn’t easy.) Mark Tushnet’s book is very good on this subject.

The Countermobilization Myth: Prop 8 Edition

[ 31 ] November 6, 2008 |

My prediction that someone would argue that Prop 8 “lends credence to the claims that litigation tends to produce a disproportionate backlash” has been proven correct by Megan McArdle. A few points in response:

  • McArdle, first of all, provides no evidence in support of a unique countermobilization effect, although there’s no compelling theoretical or empirical reason to believe it exists. But she also fails to provide any evidence that it applies in this case. Did same-sex marriage become less popular after the Court’s decision? Did anti-SSM groups become more politically mobilized after it? One would think that this is the minimum that would be necessary for the argument to be true, but McArdle does not offer a shred of support for either.
  • The claim that courts were “the wrong venue” and should be dealt with legislatively runs into the obvious problem that the legislative avenue was closed in California. The decision by California’s (elected) courts was, in fact, consistent with the preferences of a majority of California’s legislators and its governor, but these elected officials were not free to enact their preferences until the court acted. The civil rights analogy McArdle tries to distinguish is, in fact, completely appropriate to this case.
  • It’s also unclear why she thinks the judicial action in this case was counterproductive. There is now a constitutional amendment enshrining discrimination into the state constitution. Prior to the court acting, there was… a constitutional amendment statute with the force of a constitutional amendment* enshrining discrimination into the state constitution. How this made the status quo worse is unclear, and McArdle doesn’t provide any help. And, of course, it seems hard to argue that the passage of an initiative supported by such a bare majority could have been considered inevitable. Clearly, the court’s decision increased the chances of an enduring right to same-sex marriage. And the only way of obtaining this right in the future — a successful initiative — remains equally available.

Rather than providing evidence for the countermobilization myth, then, the passing of Prop 8 proves that people will try to fit virtually any set of facts into the narrative no matter how poor the fit.

*As paperwight correctly notes in comments, one of the laws struck down in In Re: Marriage is technically a statute, but because it was passed by initiative under California law it has the same effect as a constitutional amendment, as it cannot be amended by an ordinary statute from the legislature. The key here is that the status quo is no worse than it was prior to the Court’s intervention.

Google Does the Right Thing…

[ 50 ] September 28, 2008 |

And, abjuring the wrong side of history, comes out against Prop 8.

The Backlash Continues!

[ 0 ] July 18, 2008 |

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.

Granting And Repealing Rights

[ 0 ] July 3, 2008 |

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.

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