Thursday, August 5, 2010

No Hate, Prop 8: The Morning After

Logan Penza at The Moderate Voice argues that because same-sex marriage continues to have a significant majority of Americans against it, that Judge Vaughn's decision will only end up fueling that opposition into increasingly more radical approaches to end it, namely a "Roe v Wade" style approach where state legislatures doing everything they can to limit gay rights or to make exercising them so onerous that they are nearly impossible to engender, or even a Constitutional Amendment banning same-sex marriage completely.

Even if the Supreme Court does uphold the law, the result could even then not be final.  The reason the Republican Party has exploited the gay marriage issue in recent elections is because polling consistently indicates clear majorities in most states against it.  (And although civil unions result in a much more complex set of voter preferences, the judge’s decision throws that compromise option out.)  It is highly questionable whether the backlash against a Supreme Court affirmation would result in a successful constitutional amendment permanently enshrining anti-gay prejudice, but you can be sure it would be a long and hard fight.  This is the problem with using court decisions as a replacement for the hard work of education and persuasion in making sweeping social changes.

Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples.  I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.  It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights.  The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country.  Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term.  Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

I also don’t think that every desirable social policy enjoys the status of constitutional right.

But the game is definitely on and the result will be one of the most significant Supreme Court decisions in the last 50 years.
Penza is correct here.  31 states have held elections on referendums or state constitutional amendments to ban same sex marriages and they went 31 for 31.  38 such election victories would be needed to ratify a Constitutional Amendment that passed two-thirds of the House and Senate.  It's certainly within the realm of possibility and both sides of this legal fight know it.

And while Penza does have a very valid point, namely that the battle over gay rights in this country has now entered a new and much more high-stakes stage, and that the battle is far from over, the reality is that there are times where the judicial leading the way on social justice protecting the rights of a unpopular minority from the tyranny of the majority is absolutely necessary, especially when the legislative and executive will not act.  Clearly this is one of those times.

Still, Penza's warning resonates all the more powerfully now, given the fanatical fundamentalist motivation of the opponents of Prop 8 and the Republican plan to rewrite the Constitution, and not just on gay marriage either.

As I said last night, the fundamental argument here is whether or not you believe the goal of American democracy is to enshrine the rights of the popular, or to extend rights to all Americans.  We eventually to get around to the right choice on that as a people, but the battle is always long, hard, and bloody.

16 comments:

  1. Dear Zandar:

    What you have here is an overwhlming majority that doesn't want something vs. the opinion of one person who does. That's a very shaky position to be in because that one person is very likely to be over-ruled.

    Of course that is the situation you are in here at work. A majority of your coworkers want you gone and only one person's opinion is keeping you employed.

    She is likely to be over-ruled very soon...

    Hope your resume is up to date!

    Signed,
    TheStupid

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  2. Oh look, TheMoron is back. Every time I get a bit of hope that you finally had an amusing self-inflicted incident worthy of a Darwin Award, you come around.

    As an aside, the (George H.W. Bush-appointed, just sayin') judge's job wasn't to kowtow "overwhlming[sic] majority that doesn't want something", but to judge the legality of the proposition compared to established laws regarding the government, particularly the Constitution.

    And he decided that, under those established laws, it was unlawful.

    But hey, go back to fappin' to the fantasy of getting a progressive fired. Eventually you'll be able to get it up, but personally I suggest some Viagra.

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  3. Okay so when California voters approved a ban on gay marriage like they did in 30 other states then none of that matters in a democracy?

    How is this not "tyranny of the activist judge"???

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  4. Of course it matters that the voters approved the bans. The bans either need to be Constitutional, or you need to change the Constitution. This is the point of the post.

    Either go and whine on a wingnut blog, or read the fucking post and bother to put together an argument. This blog is fully stocked with brain dead trolls as it is, kthxbai.

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  5. Obama has ignored the Constitution repeatedly so that argument doesn't hold water. It is still one person's opinion on what is constitutional versus the will of millions and millions of Americans who oppose gay marriage.

    Obama opposes gay marriage too!

    So is he a bigot now too?

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  6. And there we go. What the President does, and how you perceive it, is not pertinent to what we're discussing. Either get on topic and form an argument, or I won't feel compelled to pay attention to you. I'm not Zandar's appointed Troll Feeder. I argue with Waffles because we pay each other that respect.

    To return to your argument, it is not one person's opinion. It was a judge's opinion. Next, it will be the 9th Circuit Court of Appeals's opinion. Then, it will be the Supreme Court's opinion. Then, from a legal perspective, it will be settled. If you've got a problem with that, take it up with the Founders, who had the foresight to guard against tyranny of the majority.

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  7. What right do millions of Americans have to come into someones home and tell them "We're better than you"

    That's all this is. The straight believe they are superior to the gay. This is no different than slavery or women not having rights.

    Fact is this should have never been put on any ballot. Was slavery right? Was women not having the right to even vote a-ok? I bet if it were just thrown on a ballot in those eras the majority of states would have kept things the way they were because its the sanctity of slavery, or women aren't smart enough to vote. Sorry but the argument that "Millions are against it" doesn't hold water. We cannot preach about freedom than limit someones freedom without cause. No where in the constitution does it say "Everyone is equal, except queers"

    I'll head off your next argument from the Catholic school talking points, 10th Amendment, states rights, doesn't apply when it is creating blatant inequality of this magnitude. Sorry fact is if you're against gay marriage, you're a bigot. Plain and simple. How does Adam and Steve getting married have any affect on your marriage? How does it have any affect on your day to day life?

    Also in case you're even thinking of bringing God into this, remember separation of church and state. You think its immoral to be gay, teach your kids that, that's your right. Trying to force your beliefs in a system makes you a constitutional hypocrite.

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  8. Holy shit, Waffles just said what I was about to say, only better.

    Although, I do like to say, personally, "human rights are not subject to the democratic process", and "equality is a human right".

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  9. @Waffles:

    Say your name, and poof, you appear and do damage. Well said, you big wingnut, well said. You been laying low lately?

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  10. Been busy, not much going on in politics anyway with August recess. Couldn't resist a freebie though.

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  11. So you know who Buckeye Dan really is right?

    It's Arcadian

    Only a select few know who Arcadian really is...

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  12. Oh GOD TheMoron the Second is back too.

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  13. So...are you leading a full double life here? Are you a self hating black man with a tea party membership?

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  14. Nah, Z, you didn't realize it, but you were dead the entire time, and only TheShadow could perceive you.

    ReplyDelete