With respect to how Kennedy is likely to rule on the Prop 8 case, a few additional points. First, in response to Murc here, I should make it clear what I’m not arguing, namely that Reinhardt’s opinion will somehow be able cleverly manipulate Kennedy into supporting a position he’s not otherwise inclined to go along with. As I said when similar claims were made during the Kagan nomination hearings, I regard arguments that Kennedy can be manipulated to support liberal positions as roughly on a par with arguments that Evan Bayh and Ben Nelson can be made to vote like Paul Wellstone based on arguments that rely on terms such as “bully pulpit” or “mandate.” Rather, my argument is simply that Reinhardt’s holding is one that, based on his past writings, Kennedy is likely to agree with, and hence less likely to vote to overturn and create a terrible precedent. “Manipulation” per se has nothing to do with it. Mazzone believes that this is about manipulation because he thinks that Reinhardt’s analogies to Romer are invalid, but I think he’s wrong about that. At any rate, Kennedy will make up his own mind, which is another reason why it made sense for Reinhardt not to go well beyond Romer and declare a broad right to same-sex marriage; if this is what Kennedy believes he’s free to do so anyway.
As for how much we can read into Lawrence and Romer, here’s another way of putting the argument I made here. Kennedy has demonstrated, in several cases, a willingness to vote to strike down the death penalty as applied in certain narrow ways: in cases of people under 18, people with severe mental disabilities, or in cases of sexual assault. It would be very foolish, however, for a litigator to assume that because he’s willing to strike down applications of the death penalty that are rare even in the minority of states that use the death penalty with any frequency he would therefore be willing to endorse the Marshall/Brennan theory that the death penalty is obviously unconstitutional. Kennedy is more likely to endorse a broad national right to same-sex marriage than is he is to rule that the Eighth Amendment makes any application of the death penalty unconstitutional. But, still, to be confident that he will do so based on Romer and Lawrence is deeply problematic. These cases, whose direct national impact was very modest, are a lot more like Roper v. Simmons than they are like Roe v. Wade (which would be the clearest equivalent to declaring a national right to same-sex marriage.)
There’s a final argument, made by Mazzone and also by the great Pam Karlan, that Kennedy is very concerned about his legacy and won’t want to be seen as being on the wrong side of history. Well, maybe. It’s certainly possible that Kennedy would like to see himself as being on the forefront of an important extension of civil rights that will broadly accepted very soon. It’s also possible that Kennedy has no interest in being a pariah among has valued conservative colleagues in support of social change he believes is inevitable anyway. And it’s possible that he’s aware of conservative complaints that he’s susceptible to the “Greenhouse Effect” and wants to show his backbone in a high-profile case. There are a million different essentially unfounded narratives one can create when one plays the armchair psychologist. What I do know is that his past decisions indicate that Kennedy is much more likely to uphold a narrow decision striking down Prop 8 than a broad one, and both 9CA was sensible to act accordingly. Particularly since that if Kennedy is in fact ready to go beyond a narrow ruling nothing in Reinhardt’s opinion can or would stop him.
A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.
Whenever the courts strike down a law that discriminates against a group conservatives don’t like, every reactionary think and group blog must draw straws to see who gets to throw out the stale, transparently unprincipled cliches about judicial restraint. At the Heritage Foundation, the assignment apparently went to vote suppression guru Hans A. von Spakovsky, who delivers the goods:
As the Ninth Circuit writes, the question of how to define marriage “is currently a matter of great debate in our nation.” Unfortunately, instead of permitting that debate to occur through the political process, decisions like the one issued today remove the question from voters in favor of judicially imposed social policy.
Let’s leave aside the fact that judicial review is, in fact, a long-established part of the American political process. Given von Spakovsky’s deeply principled commitment to deferring to the judgment of legislators on contested constitutional questions, I wonder how he feels about the litigation attempting to get the signature policy achievement of the Obama administration ruled unconstitutional based on constitutional arguments nobody had thought of before 2010 (even when the same people were arguing for federal mandates to buy privatized annuities?) I think you know the answer!
The Ninth Circuit has ruled that PropH8 is unconstitutional. I am very concerned that this will undermine Newt Gingrich’s commitment to the sacred institution of heterosexual marriage.
Obviously, good news, although the news will ultimately only be as good as Tony Kennedy decides it will. Much more when I’ve had a chance to read the opinion in full (see here).
Cynthia Nixon’s recent comments are very wise:
Regarding her late-in-life sexual orientation switch, the “Sex and the City” star said:
I gave a speech recently, an empowerment speech to a gay audience, and it included the line ‘I’ve been straight and I’ve been gay, and gay is better.’ And they tried to get me to change it, because they said it implies that homosexuality can be a choice. And for me, it is a choice. I understand that for many people it’s not, but for me it’s a choice, and you don’t get to define my gayness for me.
Writer Alex Witchel reports that “her face was red and her arms were waving” as she continued, “It seems we’re just ceding this point to bigots who are demanding it, and I don’t think that they should define the terms of the debate,” Nixon said. “I also feel like people think I was walking around in a cloud and didn’t realize I was gay, which I find really offensive.”
Nixon may think her comments are “politically incorrect,” but they also represent what should be the clear progressive position. Obviously, people’s attractions are driven to a greater or lesser extent by biological factors, and also obviously people have agency. The precise ratios, however, are completely irrelevant to political questions about LBGT rights. The issue is not just whether the means proponents of legally subordinating gay and lesbian use will “work”; it’s that the ends are reprehensible, because there is in fact nothing wrong with being gay or lesbian. It os a profound violation of human dignity for the state to police consensual behavior among results irrespective of to what extent one’s behavior is driven by biology or agency. It is fundamentally wrong and undemocratic for the state to prevent a same-sex couple from marrying on the same terms as an opposite-sex couple regardless of whether the couple is exclusively attracted to members of the same sex, chose their partner from a number of plausible same-sex or opposite-sex partners, or for that matter is asexual but wants to codify a long-term companionship. To put too much emphasis on the biological roots of sexuality, as Nixon says, concedes way too much.
Cardinal Francis George of Chicago makes a very serious argument in defense of traditional Catholic doctrine on marriage:
CARDINAL GEORGE: Well, I go with the pastor. I mean, he’s telling us that they won’t be able to have Church services on Sunday, if that’s the case. You don’t want the gay liberation movement to morph into something like the Ku Klux Klan, demonstrating in the streets against Catholicism. So, I think if that’s what’s happening, and I don’t know that it is, but I would respect the local pastor’s, you know, position on that. Then I think that’s a matter of concern for all of us.
This somewhat reminds me of the argument that Democrats are the party of racism because Robert Byrd was a KKK member in 1947. The Klan threatened Catholics with its intolerance and hate in 1923. Therefore, anyone who the Catholic Church opposes must also be a purveyor of hate, even though the Catholic Church is the institution attempting to repress the rights of others.
Cardinal George’s attempt to walk back his comments is also fantastic:
Obviously, it’s absurd to say the gay and lesbian community are the Ku Klux Klan, but if you organize a parade that looks like parades that we’ve had in our past because it stops us from worshipping God, well then that’s the comparison, but it’s not with people and people — it’s parade-parade.
The noted parade threat. It was indeed the parade itself and not the legislative action or acts of violence that was the real threat of the KKK. Evidently it doesn’t matter the reason, the act of organized walking in a street past a Catholic Church is the real threat!
It’s not surprising that it looks as if the 9th Circuit will reject the farcical argument that Judge Vaughn Walker (who ruled that the Proposition 8 violates the 14th Amendment) should recuse himself because he’s gay. But this line of argument concedes way too much:
But the 9th Circuit judges stressed there was no proof Walker had any intent to marry, with one, Judge Michael Daly Hawkins, noting that he did not marry in the window of time when same-sex marriage was legal in the state — before Proposition 8 was approved by the voters.
This may be true, but it’s beside the point. So what if Walker did intend to get married? Are homeowners disqualified from hearing 4th Amendment cases? Are only judges who pledge never to speak or write in public allowed to rule on 1st Amendment cases? Do judges have to pledge never to buy equities before they hear a securities litigation case? (And, of course, the assumption that only gays and lesbians are affected by same-sex marriage bans is to concede in advance that they’re irrational.) The argument that Walker has to recuse himself is profoundly foolish and profoundly offensive, and the fact that it’s being made in open court is in itself a good argument that classifications based on sexual orientation should be subject to strict scrutiny.
The Catholic Church has taken up a new strategy to fight against abortion and gay rights–talking about “religious liberty” to reject equal rights for gays and the right of women to control their own bodies.
I would say that whenever an institution is forced from the support of direct oppression to taking on the mantra of being oppressed, it’s a sign of victory for progressive forces. It doesn’t mean the victory will be complete–white homeowners used this very language in the 1960s and 1970s to protect their neighborhoods and schools from integration. But even in this case, this move was a significant response to just how much the civil rights movement had accomplished.
While I am less confident about the long-term availability of legal abortion in this country, the Catholic bishops are clearly being routed on gay marriage. I’d expect to see more of this language, talking about how not encouraging kids to beat up gay kids impinges upon their free speech.
Chick-Fil-A: worth boycotting for reasons other than the quality of the food. It’s always nice when expedience and principle can coexist easily…
Logically consistent Maggie Gallagher: The fact that members of LGM are not routinely given speaking gigs by Republican organizations is a clear violation of their civil rights.
Shorter Maggie Gallagher: Gays and lesbians must be treated as second-class citizens because otherwise people might disagree with the views of homophobes, a violation of their civil rights.
Yes, Santorum is dumber than a bag of lube and fecal matter. There’s also this:
I — I would say, any type of sexual activity has absolutely no place in the military. And the fact that they’re making a point to include it as a provision within the military that we are going to recognize a group of people and give them a special privilege to — to — and removing “don’t ask/don’t tell” I think tries to inject social policy into the military. And the military’s job is to do one thing, and that is to defend our country.
Ah, yes, the oldest scam in the bigot’s playbook; it’s demanding “special rights” to ask for rights that people like Rick Santorum take for granted. Like Santorum, this defender fails to explain how denying someone who otherwise meets the criteria for military service the right to serve is about “special rights.” Imposing unique burdens in groups is just about rights, period. Speaking of John Marshall Harlan, he was on to this in 1883, in his solo dissent in the Civil Rights Cases:
My brethren say that, when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color. What the nation, through Congress, has sought to accomplish in reference to that race is what had already been done in every State of the Union for the white race — to secure and protect rights belonging to them as freemen and citizens, nothing more. It was not deemed enough “to help the feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained.
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.