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April 27, 2009

Comments

Legal decisions, like most of law, is bs. and there isn't any point in thinking of 'good faith' for people who you can't live peacefully with, like homophobes or managers. I wouldn't trust my own principals, let alone someone else's. Process is for quislings to sleep well at night.

I profoundly disagree with Yoyo's comment.

Publius, I love this post. It's great.

"Most obviously, the “legal process” surrounding race was itself flawed given that blacks were systematically excluded from the ballot boxes."

As well, and critically from a process standpoint, "existing precedent" in the case of the 14th amendment was a load of BS, specifically intended to render the amendment toothless.

The point being that, in the case of racial discrimination, the court didn't have to engage in bad faith interpretation, it didn't have to twist the words of the law, claim they meant something it's authors never meant, and would have repudiated if it had been suggested. It had to undo the effects of it's own prior bad faith interpretation. (And only did so grudgingly, which is why we've got this incoherent 'partial incorporation'.)

It's never too late to correct a mistake. And that's what the Court was doing in the case of Brown.

The case of same sex marriage is nothing of the sort, and it's nothing of the sort, no matter how strongly you feel about it.

Yes, you have abandoned neutral principles. Don't lie to yourself about it, don't start spewing bs rationalizations. This is nothing but "the end justifies the means".

Maybe it does, but that's what it is. Don't blind yourself to that.

Why is treating gays differently from straights not a mistake?

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

It also forbids straights as well as gays from marrying people of the same sex. This might not be an equality you value, but it's a kind of equality none the less, and a kind that legal process is based on.

When the law prohibits both people who want to do something, and people who don't want to do it, from doing that something, that's not strictly speaking "discrimination", for all that the impact is felt differently by the two groups.

This is not an argument, by the way, that the law ought to prohibit same sex marriage. For polygamy, or marrying your sister... But doing so is not 'discrimination' in any meaningful legal sense.

Brett, you quote Anatole France as if he were defending the state of affairs he describes. If you think this, you are really missing the point of the quote and if you know that he doesn't mean this, you are just engaged in legalistic pedantry, like the argument that it's not discrimination, because gay men can marry straight women and lesbians can marry men so they aren't being discriminated against.

Brett's conclusionary comments are tiresome. Blacks and whites both could not marry each other too. The focus should be on the reason why, legit or not.

Likewise, as MA practice and Justice Harlan supporting social discrimination (including miscegenation and school segregation in public schools, as compared to private universities) showed, it was not some great legal perversion in the 19th Century to support school segregation.

Times changed by 1954, and Robert Jackson had a good unpublished memorandum discussing the point.

Liberal Japonicus: Why is treating gays differently from straights not a mistake?

If you're a homophobic bigot or a believer in sexless, unhappy marriage (the groups tend to overlap) it's not a mistake.

If you're outside that miserable group, it's fairly clear what kind of mistake is being made.

Legally, marriage is a contract for sharing property and personal responsibilities. Banning gay marriage means that we are prohibiting specific people from making a specific type of contract, based only on hereditary factors.

So how is this different from discrimination based on other hereditary factors, like skin colors?

I think von said something rather similar to I’ve generally been skeptical of using the judiciary to bring about this much-needed change in his last post about gay marriage, and got clobbered for his trouble.

Which, WTF?

"Well, the text of the law *is* important, but [X] is different."


I can't believe that in a post where you mention Bush v. Gore that you really want to go down that road. I'm glad your confident that it's only going to be your guys who hold the courts from here on out.

Well Andrew/Brett - that's the problem. The objection is that once you allow this, you've basically accepted that courts are only about imposing their political preferences.

The post was getting too long as it was, but I'm confident there is a principle that reaches this without throwing the operation aside. The idea is that we do apply scrutiny to laws that are based on cruel and irrational discrimination against a minority. In short, I'm lumping sexual orientation in with race and gender. That what separates gay discrimination from discrimination against other "minorities" such as felons in possession.

And Brett - while I'm far far from 100% I'm right (and was hoping for critical comments, frankly), I think you're stretching how much the original constitutional text gets you Brown. It's hard to see any methodology (particularly originalism) that gets you there

Race was different -- and courts did what was right, and the principles ultimately vindicated them. I think sexual orientation also falls into this category.

But I'd be lying if I said I feel 100% confidet that I'm correct

@ Andrew R: Publius's opinions don't mean anything thing to right-wing judges, and if liberal appointees maintain strict devotion to process, right-wing judges will be no less likely to rule in Bush v. Gore-like ways. There's really no connection.

There is, for better or worse (better, IMHO), one significant difference between the gay marriage question and the legal issues over race half a century ago. Today, there is precedent for the court to intervene, even for those who dislike on principal have the court plunge into new territory.

That precedent is, obviously, the rulings overturning the anti-miscegenation laws. It is not really possible to come up with a legal argument why one set of rulings is acceptable and the other is beyond the pale. You can argue theology, of course. But if you are going to argue the law, you can't have it both ways. And the law is what is at issue here.

(All that said, I think that politically it is better to get the laws changed via legislation than via the courts. We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades. If you can get, indeed are in the process of getting, to your goal via persuasion, is it really smart to skip that step?)

So after much thought, I’ve come around to the idea of using courts to legalize gay marriage.

Good for you. I've never seen a criticism of "judicial activism" itself that didn't sound like reactionary lizard-brain sour grapes. If the result was good and if it was reached legitimately, then the fact that it was accomplished without a minority having to beg hat in hand to be treated like equals is neutral if not actually positive.

"I've never seen a criticism of "judicial activism" itself that didn't sound like reactionary lizard-brain sour grapes."

Doubtless, but is that a commentary on the criticism, or your ears?

Okay, fair enough. And I can actually see how one can argue that the fourteenth amendment is based on a larger principle of equity even though sexual orientation isn't mentioned in the text of the amendment itself.

I'm just uncomfortable with the notion of shooting for a particular outcome by means of the judiciary. I especially dislike the "times have changed since they wrote the Constitution" argument, because that can go into all kinds of places that we don't want--"When they wrote the Bill of Rights, there weren't al Qaeda loose nukes floating around after the collapse of Pakistan," for example.

Using the courts to decide this is not dissimilar to using the courts to decide what is discrimination against handicapped people wrt ADA. Both are happening, and it's probably a good thing

The difference between a results-oriented decision like Brown v. Board of Education and one like Bush v. Gore is simply this:

In Brown, the Court was looking for justice regardless of what the law said.

In Bush, the Court was looking to install a particular candidate regardless of what the facts said.

Doubtless, but is that a commentary on the criticism, or your ears?

Both, I assume. Do you have a point?

wj:

All that said, I think that politically it is better to get the laws changed via legislation than via the courts. We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades. If you can get, indeed are in the process of getting, to your goal via persuasion, is it really smart to skip that step?

I wonder about that too. I say this having spent 12 hours at the committee hearing on Maine's proposed same-sex marriage bill last Weds., where 3000 people filled the Augusta Civic Center and dozens testified (3 minutes per person, alternating 1/2 hours for the sides).

On the one hand, I came away astonished and pleased to be reminded how much progress we've made in just the last (let's say) 10 years. Ten years ago you could never have gotten 1500-2000 supporters to come out (no pun intended ;) in public to make that kind of a statement.

On the other hand, listening to the people who spoke in opposition to the bill was as depressing as ever. Lots of God-talk -- it amazes me how many different shades of opinion God seems to have on this stuff....

But one thing I hope is that this issue is different from abortion. I can very much understand why a sincerely held opinion that abortion is wrong is not likely to change. People do in fact have differing fundamental values, and this is one of the places where I think we are going to have a hard time ever reconciling the differences.

But a lot of the opposition to gay marriage is founded in simple fear and ignorance of the fact that gay people are pretty much just folks. As gay people feel safer being out in the open, the fear will gradually be defused, as is already happening. There will continue to be a hard core, just as there are still hard core racists. But I don't think that this issue necessarily has the potential for long-term divisiveness that abortion has had.

Yes, the same rabble-rousers will keep trying, and it's all the same people who keep using abortion as a dividing mechanism. But I hope this one will simply not have the staying power. It already seems that there's a big generational component to opinions about same-sex marriage, and that tends to point in (what I consider to be) the right direction as well.

Back to the beginning: I do understand that there's a political issue here, and that it's a delicate balancing act between that and the fact that minorities shouldn't have to wait for the majority to catch on (or what is the Bill of Rights for in the first place?)....

in the case of racial discrimination, the court didn't have to engage in bad faith interpretation, it didn't have to twist the words of the law, claim they meant something it's[sic] authors never meant, and would have repudiated if it had been suggested.

Ladies, this is your warning shot. The 14th Amendment only applies to the categories named in it. So if you've been counting on it to address any discrimination you may experience due to your gender, you're barking up the wrong tree. Pass a law, or suffer in silence, because the white men who wrote it never meant to include you in the category 'person'.

Is that too reductive?

JanieM: But one thing I hope is that this issue is different from abortion. I can very much understand why a sincerely held opinion that abortion is wrong is not likely to change. People do in fact have differing fundamental values, and this is one of the places where I think we are going to have a hard time ever reconciling the differences.

A person can sincerely believe that abortion is wrong, but nonetheless see that making abortion illegal creates and enforces an even worse wrong. A person can sincerely believe that abortion is wrong and therefore want to focus all their efforts on ensuring that the least possible number of abortions happen.

But the pro-life movement is no more interested in preventing abortions than the anti-gay-rights movement is interested in protecting marriage: the pro-life movement is primarily interested in removing basic human rights from women, and the anti-gay-rights movement is primarily interested in removing basic human rights from lesbian and gay people. The two groups, naturally, overlap considerably: and the interest both groups display in having more white babies born betrays that both have strong links back to the Christian religious right movement to remove basic human rights from black people.

After 30 to 40 years of legal abortion, most sane people agree that, regardless of your personal views on abortion, it's better for everyone if a woman who needs* an abortion can get one performed safely and legally by a qualified medical practicioner. That was what Roe vs Wade accomplished in the US. The "poison" arises from the political and financial strength of the religious right wing in the US, not because of any widespread principled disagreement about abortion.

*One may, and people do, have disagreements about what constitutes "need" and who gets to decide, but I doubt if even Sebastian would argue that if a woman needs an abortion, she ought to have to go to a backstreet abortionist and have a knitting-needle pushed into her uterus.

The case of same sex marriage is nothing of the sort, and it's nothing of the sort, no matter how strongly you feel about it.

This is pure argument by assertion. I defy you to identify a substantial or meaningful way in which the history of prejudiced legal rulings, history of prejudiced laws, or tradition-based justifications of said prejudice is different between racial and sexual discrimination. And by substantial or meaningful, I mean something other than stuff like "race isn't gender isn't orientation", or "homosexuality isn't in the 14th Amendment". Do your homework.

"The bottom line, then, is that the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology."

The road to Brown included two areas: (1) an expansion of due process to protect certain minorities and (2) in particular, cases targeting racial discrimination in higher education, including law schools. These went back to the Hughes Court in the 1930s. I might add (3) an increase in the use of the government, all branches, to protect individual rights in a certain direction.

In fact, there were seeds of this already in the 1910s, including a decision against a law promoting residential discrimination and grandfather clauses. If things changed, they didn't suddenly change in the days of Warren.

BTW, as here, this was a long term process, one that mixed court review with political and social change, each done with some care to restrain things. So, we had let's say Vermont, where a state court took a middle approach. A decade passes. The sky doesn't fall and it is determined that the half-way measure is not true equality. The legislature passes a marriage bill.

"And that brings us to gay marriage. The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That's the million dollar question.

And I say yes.

That’s the reason I’m now comfortable with using courts. I’m not going to be on the wrong side of history on this. I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision."

I'm gay. I want gay marriage. I don't agree with this at all.

"I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision."

This statement can't be true. You DO have so much faith in your theoretical principles that you are willing to throw out the political process to get the result you desire. It is just that the theoretical principles you trust enough are those of your sense of justice.

And that is great for you, so long as your conception of justice is the one that is getting validated by the courts.

I would have thought that progressives might have had a recent enough brush with the fear of courts they don't agree with to want to keep in mind the idea that such wouldn't be the case.

Now it may very well be that some of the states have Constitutions where the decisions make sense in jurisprudence. I don't know the constitutions of all 50 states deeply enough to be sure. But reading some of the decisions and their hemming and hawing makes me fairly skeptical of that.

Further, it isn't clear that we HAVE to break the process in order to get gay marriage. It looks to me like the democratic side of the process is winding its way that direction too.

It seems to me that the reason why minority interest protections stand in a republic is because the majority believes that system of checks and balances is tied to something else that they believe in. If that has no instrumental value in maintaining society, letting the judiciary pretty much do what it wants shouldn't be a problem. I'm not convinced that the buy-in of the majority into the legitmacy of the system really has no instrumental value.

We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades.

Did we? Why do you say that? These guys are more familiar with the topic than me and devote a lot more energy to it, but I don't see any reason to believe in backlashes against judicial decisions in general. People opposed to same-sex marriage, abortion, and interracial marriage were opposed to them before the relevant rulings and have continued to be for years after. To the extent that opposition has faded, it's often due to being exposed to the controversial thing and seeing that it's not that bad. In Vermont, for example, civil unions were imposed by a Supreme Court ruling. Vermonters hated that judicial activism so much that when it came time to vote on gay marriage itself 10 years later, it passed by veto-proof margins. I can't imagine same-sex marriage coming to Vermont any sooner without the Supreme Court ruling.

All that said, I think that politically it is better to get the laws changed via legislation than via the courts. We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades. If you can get, indeed are in the process of getting, to your goal via persuasion, is it really smart to skip that step?

Can you present any evidence at all that judicial decisions on gay marriage lead to significant backlash effects? If you cannot, then why should we prefer legislation to court action? You can always say that you are making some progress in convincing people, so doesn't your argument reduce to an argument for never seeking redress from the courts?

I agree that convincing voters is important, but voters also rely on the opinions of judges. Many voters might have strong feelings about whether they think their gay people should be able to get married in their church, but on questions of civil marriage they may be far more willing to delegate to high court judges. If we insist that gay folk avoid court challenges and seek change exclusively through the legislature, then we deny both the legislature and the voters the benefits of high court judgments. In some cases, the legislature specifically wanted the courts to decide.

"It also forbids straights as well as gays from marrying people of the same sex. This might not be an equality you value, but it's a kind of equality none the less, and a kind that legal process is based on."

Segregation forbade "white" people as well as "black" people from mixing. The law said they were "separate, but equal." This might not be an equality you value, but it's a kind of equality nonetheless, and a kind that legal process is based on.

When the law prohibits both ["white"] people who want to do something, and ["black"] people who don't want to do it, from doing that something, that's not strictly speaking "discrimination", for all that the impact is felt differently by the two groups.

Anything incorrect about this, Brett?

My simplistic take on discrimination is this:

If you disallow blacks access to something that you allow whites access to, you are discriminating against blacks.

If you disallow whites access to something that you allow blacks access to, you are discriminating against whites.

These two things do not cancel each other out. They are simply two forms of discrimination, not additive opposites.

If Mary can marry Bill, but I, a man, cannot, simply because I'm a man, gay or straight, that is sexual discrimination. Same goes for Mary not being able to marry Jane, whom I can marry.

I can't totally agree with publius that the Brown, for example, was a wild venture outside the terms of the 14th Amendment. It offended post-New Deal legal process types who hated Lochner and loved judicial deference, but that's not quite the same thing.

The 14th Amendment does seem to require equal protection. Obviously, the original reason for it was Reconstruction and abolition, but the courts recognized that this had to be applied at a certain level of generality. For instance, prohibiting Asians from running certain businesses violates the same principle.

Of course, the argument Gary sets out at 12:28 pm, that segregation was consistent with equality, was considered very persuasive for a long time. But in principle, that's a matter of social fact, not of legal interpretation. Brown said de jure segregation in the context of schools wasn't consistent in practice with equality, and we all agree with that now.

I am going to 'concur in the result but dissent from the reasoning' -- and my apologies for breaking this into parts, but dear, blessed Typepad seems to have a length limitation that I frequently exceed.

First, re Brown v Board you are doing precisely what the segregationist opponents of this were doing -- and it is a sad thing that this has become 'conventional legal wisdom' -- treating it as a form of 'judicial legislation' de novo. But they did not, suddenly, out of nowhere, decide that school segregation was unConstitutional.

There had been a long series of decisions leading up to Brown. Not just school cases -- which I will discuss in a moment -- but the 'white Primary Cases'; the series of 'transportation desegregation' cases, Mitchell v. US, Morgan v. Virginia, and finally Henderson v. US.

In education you have Gaines v. Canada (which, ironically, may make the strongest argument against marriage inequality when it states "a privlege has been created for white law student which is denied to Negroes" and that paying a student's expenses at an
Unsegregated school in another state "could not remove the discrimination.") This was followed by Sipuel v. Regents and, finally by Sweatt v Painter -- both of which proved the point that 'seperate could never be equal.' Brown merely extended these to lower levels of education, and, initially, gradually -- remember 'with all deliberate speed'?

But there is a better set of precedents -- for the next part.

The rule of law doesn't apply just to torture and those who order/justify it. Here, Publius is wrong, Brett/Sebastion are right and Brown v. Board of Education is not precedent for anything that doesn't fall within the 14th Amendment's injunction against denying equal treatment under the law based on race, creed, color or country of origin (or the due process part or the voting part). Brown reversed Plessy v Ferguson (separate but equal), and rightly so. "Equal means the same" is, I am pretty sure, a direct quote from Brown. The Court was construing the Constitution, not deciding that racial discrimination was bad.

I support gay marriage/civil union, whatever, but only through the legislative process for two reasons (two reasons for supporting the legislative process, there being more than two reasons for supporting gay marriage/civil union). First, I want to think that the law is grounded in statute, constitution and actual precedent, so that it is fairly predictable and we aren't ruled by judges. There is no precedent under the US Constitution for mandating gay marriage nor any prohibition against outlawing it (see the 10th Amendment). Second, when gay marriage comes, it is bad business in several respects for it to come in the form of judicial fiat. Generally, Americans don't like being ordered by judges to do things. Worse, a decision like this invites the worst kind of demagoguery followed by a constitutional amendment to reverse the court's decision--and if it passes, all of the gains are wiped out until the constitution can be amended (good luck on that one). Already, a number of states have acted preemptively to amend their constitutions to prevent their highest court from mandating gay marriage. California is in a huge constitutional crises right now.

Negative injunction laws are inherently discriminatory. Brothers and sisters can't marry and people who want to get high can't buy dope legally. You can't marry your dog but you can't beat it to death either. Not all discrimination is bad. Irrational discrimination is bad, but viewed from a traditionalist's perspective, gay marriage is a new and dangerous thing--being gay is a sin, blah, blah, blah. There are plenty of great arguments against this line of thinking, but I can assure you that when you roll them out in front of a church-going audience, the result is pretty much slack-jawed amazement.

From their viewpoint, preventing gays from marrying is perfectly rational. Most of the country has felt this way for a long, long time. And because most Traditionalists can't even begin to understand that being gay is no more of a choice than being male or female; they don't get the inherent wrongness of telling one very small class of people that it is outside of society. They think being gay is optional or treatable or anything that doesn't force them outside their box.

Time will win this fight and in time, people in my state will be in the minority and they will be embarrassed, but that is 20, 30 years down the road. In the meantime, judicial shortcuts in a democracy take a bad situation and make it much, much worse. Consider this: a court can decide the gay marriage thing either way. What Publius is really saying is that he's fine with judicial fiats he agrees with, even while he recognizes the inherent risk of judicial overreach.

"...but dear, blessed Typepad seems to have a length limitation that I frequently exceed."

It doesn't.

I have to go with no.

But I still think the court is doing the right thing, so I guess functionally yes? I guess I disagree with you assumption of what is the fundamental question.

mckinneytexas: In the meantime, judicial shortcuts in a democracy take a bad situation and make it much, much worse.

I admit the theoretical possibility, but as a practical matter of fact, you can see for yourself that when the courts rule for the legal equality of a minority against the wishes of rht majority, what in practice happens is that they take a bad situation and make it much, much better.

For everyone, at least, except those who are locked into the idea that marriage ought to remain a transaction of property in which a daughter is given by her father-owner to her husband-owner: the "traditionalist" view of marriage that already no longer legally exists in the US - even if by custom or religion some Americans still think that's how marriage ought to be, legally, in every state in the US civil marriage is an equal relationship: "traditionalist" civil marriage no longer exists.

"Second, when gay marriage comes, it is bad business in several respects for it to come in the form of judicial fiat. Generally, Americans don't like being ordered by judges to do things. Worse, a decision like this invites the worst kind of demagoguery followed by a constitutional amendment to reverse the court's decision--and if it passes, all of the gains are wiped out until the constitution can be amended (good luck on that one)."

None of this is relevant to upholding a basic civil right. Civil rights aren't subject to majority rule. They're up to the courts to uphold. If a legislature gets their first, fine. But if not, it's up to the courts to stand up for a fundamental civil right, such as the right to equal treatment before the law.

"Irrational discrimination is bad, but viewed from a traditionalist's perspective, gay marriage is a new and dangerous thing--being gay is a sin, blah, blah, blah."

Identically: "Irrational discrimination is bad, but viewed from a traditionalist's perspective, integration is a new and dangerous thing -- mixing races is a sin, blah, blah, blah."

So courts should have never moved for integration: they should have waited for legislatures. Courts should never have struck down anti-"miscegenation" laws; they should have waited for legislatures.

But that would have been wrong.

"In the meantime, judicial shortcuts in a democracy take a bad situation and make it much, much worse."

It's not a shortcut to uphold a constitutional right. It's a necessity for it to happen as soon as possible.

Letter From Birmingham:

[...] One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act.

[...]

My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness"--then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

How long would you wait while your marriage, or right to marry the person you wish to, remains illegal?

"I admit the theoretical possibility, but as a practical matter of fact, you can see for yourself that when the courts rule for the legal equality of a minority against the wishes of rht majority, what in practice happens is that they take a bad situation and make it much, much better."

It depends on whether or not you think that the promoting a general disregard of actual statutory language in favor of breaking the rules and/or word twisting to get what you think is right makes it easier to get things like government sponsored torture when the right people think that is right...

If you want to argue that marriage ought to be extended beyond its traditional meaning of a man marrying a woman to honor realtionships between men and men and women and women, I'm willing to agree. If you want to have a debate about it, and legislate on the issue, I'll be on your side.

If Bush wanted to argue, that torture ought to be allowed, because it isn't likely to get out of hand, and was completely necessary for the defense of the country, I'm willing to vigorously disagree. If he had tried to legislate on the issue, I have demonstrated that I'm not on that side.

It is not legitimate to pretend that in the previously existing rules this was all just waiting around to be discovered. The torture memos and a number of self-evidently ends-oriented judicial rulings are just flip sides of the same coin.

Does this make the death penalty cases, and the gay marriage cases and the torture memos all just as bad as each other in a general sense? No. But in the sense that they are all corrosive to the rule of law, yes. And that they ironically make each other more likely to happen because they undermine the rule of law, yes.

Gary, what precisely is a civil right that the courts get to uphold, and what is not?

Thanks Gary for reminding of those inspiring words.


Aux barricades!!!!

Second, when gay marriage comes, it is bad business in several respects for it to come in the form of judicial fiat. Generally, Americans don't like being ordered by judges to do things.
Posted by: mckinneytexas | April 27, 2009 at 01:55 PM

Way back at 10:15, wj said basically the same thing as this. Do you have any evidence of it? It's funny that you mention preemptive anti-SSM constitutional amendments, since, as preemptive measures, they aren't what you're talking about at all. What makes you think that opposition to SSM is fueled by judicial rulings that didn't happen?

And that they ironically make each other more likely to happen because they undermine the rule of law, yes.
Posted by: Sebastian | April 27, 2009 at 02:55 PM

I find this hard to believe. Each ends-oriented judicial ruling reduces precedent as one barrier to future ends-oriented rulings, sure, but that's never the only effect and I doubt it is more important than things like the intent of the ruling. Pro-gay marriage judicial rulings and anti-death penalty rulings share in common a deference to the individual and a recognition that capricious government or majoritarian power is bad. Pro-torture memos demonstrate and promote the opposite ideas. It seems very unlikely that eroding precedent in very general terms by extending civil rights to more people makes it easier to deny them to others.

So after much thought, I’ve come around to the idea of using courts to legalize gay marriage.

The reason you are/were struggling with this is because you are addressing the wrong question.

I'll put it quite simply: GAY MARRIAGES IN IOWA (or anywhere else) WERE NEVER "ILLEGAL".

Nobody, for example, was ever arrested or fined for being gay married, or performing a same-sex "marriage".

The question isn't whether "gay couples can marry" but more accurately, whether the state must recognize same-sex marriages as marriages, and afford those marriages all the benefits and protections of opposite-sex marriages.

When looked through this prism -- which is the only intellectually honest way to frame this debate -- then the decision of the Iowa court is a no-braner. It's NOT a "result-oriented" decision; rather, it is a decision in which the real-world result flows directly from the neutral principles and jurisprudence of equal protection.

Politically, gay marriage is controversial. Constitutionally -- and as a matter of legal reasoning, it is not (this is what distinguishes the Iowa case from, say, Bush v. Gore).

You seem to acknowledge the discrimination is there; you clearly understand (I assume) equal protection. Therefore, you don't need emotion, empathy, sympathy, outrage, etc., to reach the conclusion that states should recognize gay marriage. Cold neutral reasoning gets you to the same place.

If you do oppose judicial rulings that allow gender-neutral marriage, you should be secretly thrilled. 30 states have constitutional amendments that prevent the state from recognizing same-sex marriages. 19 states prohibit even recognizing civil unions, and 3 states prohibit granting any benefits at all. (In Virginia, contracts that might try to replicate any of the benefits that one gets from marriage are technically voided, although I am unaware of this extreme being enforced.) At most, 12 states can have their statutes against same-sex couples revoked by their courts.

Be happy! The legislative process has enshrined fear, hate, and discrimination in an orderly way in most states. None of the state supreme courts are likely to overturn your precious statutes and processes there.

People who hate gays still have a lot of places to live. We only have a few places where we can expect to be treated as equals. Today, many people do treat us as equals, but are unfortunately unaware of what we are vulnerable to.

Heck, I live in Utah. I can be thrown out of the house I am renting or fired from my job just because I have been faithful to another man for five years. It's all very orderly and protected by the courts here, I assure you.

"It seems very unlikely that eroding precedent in very general terms by extending civil rights to more people makes it easier to deny them to others."

Why? If you are in a workplace where the rules are regularly followed in most areas, violating them in any one area becomes institutionally difficult. If you are in a workplace where the rules are treated very casually, violating them in any one area is institutionally easy.

The rule of law as an institutional structure is about stregthening the norm of following the law even when it is difficult or you disagree with it. (Following it when it is easy and you agree with it doesn't need institutional support).

Bandit--almost all of the state constitutional amendments were passed after the Massachusetts Supreme Court mandated gay marriage. This is the point I was trying to make earlier. Most Americans don't want their lives run by anyone, particularly not a judge. We live in a constitutional democracy, meaning the constitution is supreme and must be enforced according to its plain intent (plain a perversely obscure term). State constitutional amendments cannot be set aside other than by the US Supreme for running afoul of the US Constitution or by subsequent state or federal constitutional amendment. When a populace can be terrified into passing anti-gay marriage constitutional amendments for fear of their state supreme court ordering gay marriage, the practical and overall effect of one or two courts recognizing gay marriage is grossly offset by the negative and much more difficult to eliminate barriers of constitutional amendments in many other states.

I am not thrilled at all that 30 states have constitutionally banned same sex marriage. Because the ban is constitutional and not statutory, lifting it will be extremely difficult and will make playing to the bigotry/ignorant crowd a sure winner for otherwise indifferent politicians.

"Most Americans don't want their lives run by anyone, particularly not a judge."

To point out the obvious, no one is obligated to have a gay marriage. Gay marriage involves courts running the lives of exactly no one.

Why? If you are in a workplace where the rules are regularly followed in most areas, violating them in any one area becomes institutionally difficult. If you are in a workplace where the rules are treated very casually, violating them in any one area is institutionally easy.

Maybe, maybe not. If the rules on time off are flexible and selectively applied, the rules about keeping the kitchen clean might be equally easy to break or they might not.

Following mckinney and Gary -- Yes, and some of us object to having our lives run by the "bigotry/ignorance" crowd as well, even if that crowd is the majority on any given issue. My life is and has been affected in concrete and serious ways by the side effects of bigotry. My life (and my right to marry) affects bigots not at all, except, as mckinney said above, they might have go outside the box to face the fact that I'm actually real, and they don't want to go there. That it's my world too is exactly what they refuse to recognize.

This BS about how allowing me to get married is somehow running someone else's life is tiresome, to say the least.

Besides that, we'll never know, but I would suspect that at least some of those 30 state constitutional amendments would have happened even if the change in Massachusetts had come via popular vote rather than the court. And if it was so easy to pass constitutional amendments in one direction, how much harder can it be to repeal them? (Let's say 20 years down the road when we've moved a generation along.)

GF--good point. It would have been better to have said, 'most Americans don't like their laws changed by judges'. No one is affected by gay people marrying except those who let themselves be affected. Still, the downside of judicial fiat outweighs the upside.

I can imagine a norm where courts just say "I'm striking this down because this is immoral and no government has the right to do this." There are some categorical prohibitions that apply to all human beings, even those that for the government. De facto, this means the court would have veto power over anything the government did that the court deemed to be immoral.

Note that this would be unidirectional--if it would be illegal for the government to do something, the court couldn't make it legal. The government has enumerated powers and courts could neither compel nor permit the government to go beyond those powers.

Yes, this means courts would restrict the government's power in ways that would piss me off, e.g. Lockner. I think it would be worth the price, though. The government's sins seem to be more of commission than omission.

From Andrew Sullivan at 4:08 p.m.: "Abortion, Homosexuality And The Young
Some interesting fleshing out of data we already knew. There has been a sea-change among the young in attitudes to inter-racial marriage and homosexuality over the last thirty years. Abortion: not so much."

The last bit is a link to this.

As I was saying this morning....

No one is affected by gay people marrying except those who let themselves be affected. the couples themselves and their families.

There -- that makes a lot more sense.

"Most Americans don't want their lives run by anyone, particularly not a judge."

And yet gay people find their lives run by bigots, and the bigots seem to have no problem at all with it.

I'm no Constitutional scholar, nor even a lawyer, but it seems to me that if Loving said the state has no power to restrict the skin color of who you can marry, and Lawrence said the state has no power to restrict the gender of who you can have sex with, then it's a short leap to decide on those principles alone that the state has no power to restrict the gender of who you can marry.

This is a beautifully thought-out and justice-affirming piece, thank you.

Phil, actually, while what you said makes sense, the point i was making is that gay marriage shouldn't bother anyone and it only bothers those who allow it to do so.

Gays have been discriminated against, marriage-wise, universally for thousands of years, maybe forever. Doesn't make it right. The notion of legalizing gay marriage is perhaps 50 years old. Not everyone who opposes gay marriage does so for bigoted reasons, but it has a bigoted outcome. Ignorance is the larger enemy.

Yes, a court could reason its way to mandating same sex marriage via the equal protection clause. If you think the abortion wars are fun, just wait until the gay marriage constitutional amendment fight begins. And it's a fight gays cannot afford to lose because if the US constitution is amended to outlaw gay marriage, or to allow states to outlaw gay marriage, there is virtually no going back, the amendatory process being what it is.

Sorry, the link in my 6:05 looked fine on preview. It was this:

http://scienceblogs.com/gnxp/2009/04/the_two_gay-friendly_cohorts.php

Sebastian: It depends on whether or not you think that the promoting a general disregard of actual statutory language in favor of breaking the rules and/or word twisting to get what you think is right makes it easier to get things like government sponsored torture when the right people think that is right...

Wait a minute. So you're now arguing that the judicial process determining that same-sex couples have the freedom to marry is wrong because the judicial process might rule that torturing prisoners is a basic civil right that may not be abrogated?

I'm glad I don't live inside your mind, Sebastian, where somehow you have decided that your freedom to marry the man of your choice is exactly like Charles Graner's freedom to torture prisoners in Abu Ghraib.

I wish you didn't live inside your mind, either, because it strikes me as a pretty ugly place.

"It would have been better to have said, 'most Americans don't like their laws changed by judges'.

Most Americans don't notice 99% of laws changed by their legislatures, and they don't notice 99.99% or more of judicial decisions.

Most Americans neither notice or care when most laws are changed by anyone. Most Americans notice only a tiny fraction of laws being changed, whatever the source, usually when the law either: a) directly affects them, and they don't like it; or b) when a hot-button issue gets demagogued, and it's one of their hot buttons.

I don't believe most people care all that much, in either case, whether it's a court or a legislature that does it. This is, to be sure, my subjective opinion, and I don't have a handy poll or statistic to support it.

But I don't believe most people who are hot and bothered, and terribly upset, because someone else might be allowed to marry someone they disapprove of -- a same-sex marriage -- are, as a rule, less wrought up by legislatively enacted gay marriage than they are by judicially enacted gay marriage.

Sure, there are people like you and von and Sebastian who prefer one method to another, but none of you are among the people who are actually upset by gay marriage.

The people who really care about this issue are those who feel strongly either that gay marriage is icky, against God's will, and a threat to their way of life, or those who feel that it's a simple matter of justice and human rights.

And neither side, for the most part, cares all that much, by my observation, about the judicial versus legislative part.

Your mileage on this, as we say, may vary.

"No one is affected by gay people marrying except those who let themselves be affected. Still, the downside of judicial fiat outweighs the upside."

All judicial decisions are "judicial fiat." It's just another scare term. It's not an argument.

Actually, GF, the people who were all worked up over the notion of a judge changing the definition of marriage are the ones who passed 30 state constitutional amendments because they were BS'd into believing that judges would redefine marriage. Generally, most Americans are oblivious to the law, but marriage, abortion and a few issues like that resonate and are used shamelessly by politicians of every stripe.

I've really been impressed with the contents of the comments pro and con in this thread. It represents the very best of what the blogosphere is about.

This quote is what makes me disagree with Publius: "And while I generally agree with those sentiments in almost all contexts, race was different. It was a unique problem, and it demanded a more unique response. Most obviously, the “legal process” surrounding race was itself flawed given that blacks were systematically excluded from the ballot boxes."

I am agnostic on the merits of Brown, not having researched it fully. My gut is that Publius is right -- race was unique and it deserved a unique response, particularly because of the systematic and widespread effort to exclude blacks from the excercise of any political power. Courts had no choice but to step in.

In Iowa where I live and the court just stepped in, I am aware of no such exclusion of gays from the voting booth. As far as I know, nobody has introduced a gay voting rights act here, because there is no need.

Further, I am part of that younger generation that supports gay marriage. Democracy was in the process of working. Now it is a wreck and I would not be surprised if we end up with a constitutional amendment that will push back ultimate vistory for decades.

a judge changing the definition of marriage

Which of these states had, in their constitutions, a "definition of marriage" to begin with?

Phil, I was thinking the same thing. There is something very odd about the notion that gays should have sought a legislative solution rather than a judicial one prior to such amendments. Most states didn't have a statute one way or the other about whether two men could marry. At most, an ordinance. So why should gays assume they need a legislative change? If I think I qualify for a zoning exemption or a drivers license or something, I don't usually need a legislative fix to prove it before I apply. I just go ahead and apply, and if I get turned down, I can go to court. Why admit that the law has to be changed, when your probably qualify under the law as it stands?

JanieM, the retention bias noted by Cass Sunstein (among others) makes repeal more difficult than enactment. People don't like getting rid of things, even bad things.

It probably will happen eventually anyway, but having an express constitutional provision against will make it harder.

Catsy, I think this comment of yours misses something important:
I defy you to identify a substantial or meaningful way in which the history of prejudiced legal rulings, history of prejudiced laws, or tradition-based justifications of said prejudice is different between racial and sexual discrimination.

The rulings and laws themselves are only a small part of the history of the laws. Jim Crow arose from the Civil War, which in turn arose from our nation's "original sin" of slavery. Racial issues have been the most divisive issues in America throughout its history. We never fought a civil war over gay rights and I daresay we never will, nor did we put special compromise clauses into the Constitution about it. We had to make changes in criminal trial procedure, espcially jury selection and death penalty standards, because we could not trust anybody in the system to follow the existing rules sensibly when racial issues were involved.

In the same way, it turned out that we needed an unprecedented level of federal court interference with the minutiae of local government to enforce civil rights laws and amendments. The courts put their legitimacy very much at risk by going strongly against public opinion in vast swaths of the country. But the courts were the only body that could muster the kind of moral authority needed to challenge those norms.

I think many people are just as irrational about homosexuality. But that irrationality just has not had the kind of horrific effect on our country that race hatred has.

That difference weakens publius's policy-based arguments. Do gays need judicial intervention as much as blacks did? Maybe. Is the threat to public order so great that the rest of us need to provoke another rift between the courts and the public? With race rights, we had a choice between the courts stepping in and an endless series of riots and domestic terrorism, maybe even armed insurrection. Denial of gay marriage rights is not nearly that incendiary.

Personally, I'm not nearly that much of a utilitarian or legal realist; I want the courts to do the right thing, come what may. But that's a different argument.

"But at some point, if my theories justify cruel and dehumanizing discrimination, well… maybe it’s time for new theories."

So, when legal conservatives finally are able to overrule Roe, you don't mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?

almost all of the state constitutional amendments were passed after the Massachusetts Supreme Court mandated gay marriage.

mckinneytexas, I think it is pretty likely that those same states would have passed constitutional amendments even in the case where the MA legislature legalized gay marriage. Many people were offended by the substantiative outcome, not by the method by which gay marriage was legalized. Consider this: in states where gay marriages performed in other states are not recognized, there is no attempt made to differentiate gay marriages performed in states where gay marriage was legalized judicially versus legislatively. If all these people in all these states really do care about the method by which legalization happened rather than the fact that legalization happened, we should see far more permissive laws and attitudes regarding gay marriages made in Vermont.

feddie - that's actually a very interesting question. i think these gay marriage decisions are significantly more defensible than roe.

and it's an interesting question b/c the same power that gives you Roe gives you the power to outlaw all abortions too.

So, when legal conservatives finally are able to overrule Roe, you don't mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?

This is absurd. Many opponents of abortion have been extremely clear that they have no intention of returning abortion to the states and allowing each state to have its own abortion laws: they've been clear that after overturning Roe v Wade, they plan to seek national legislation banning abortion in addition to legislation in every state. That's why they have also been pushing a right to life amendment for decades.

Frankly, I think it is insulting to claim that many anti-abortion groups will not seek to eliminate legal abortion using any legal means available. I mean, these groups have been quite clear that they view abortion as murder, so criminalizing abortion at the federal level makes perfect sense for them.

I have no interest in debating abortion policy, but I think we should all be able to agree that if Roe v Wade falls, abortion will very much remain a federal issue (while also becoming an issue in many states).

Turbulence-

With respect, you're not paying attention. Every legal conservative I know believes that overruling Roe will simply return the issue to the States. Now, do I and many other social conservatives want to amend the Constitution to outlaw all abortions. You bet we do. But you see, Article V allows us to do just that. That's not lawlessness. That's democracy.

My point to Publius btw was that under his theory conservatives could just bypass the amendment process after Roe is jettisoned, and argue that the Constitution actualy mandates that abortion be outlawed.

Oh, and I can make that argument fwiw.

"Is the threat to public order so great that the rest of us need to provoke another rift between the courts and the public?"

This is an argument that unless the threat to the actual lives of members of a group, such as the much larger group of people than the set of African-Americans known as "women" rises to the level of approximately civil war, as well as any other group of people whose denial of rights doesn't provoke the the interstate strife of civil war, or something approximating that state, courts shouldn't be used to instantiate or support the rights of any such group.

In other words, I answer your question with an emphatic yes.

The fight over whether women have equal rights in law with men, for example, took over one hundred years more than it took to establish, at least on paper, the rights of African-Americans to have such legal rights. And whether the Fourteenth Amendment fully covers women, thus making the Equal Rights Amendment unnecessary, still isn't, last I looked, 100% affirmed in our law. (I welcome corrections from actual lawyers if I misunderstand this.)

Forms of oppression don't come as clones of each other. Chattel slavery was a unique form of oppression, but the oppression of women is another unique form of oppression. That a civil war hasn't been fought over it doesn't make it a lesser form of oppression.

That gay people have been forced to live in figurative closets, forced to live in hiding or denial, been persecuted, beaten, and killed, as long as our republic has been around, and longer, as well, doesn't make their oppression less than other forms just because they haven't been prevented from voting.

Or we could talk about religious bigotry as it has played out in our country's history. Or ethnic bigotry. (Or a combo deal like antisemitism.)

Social and legal oppression comes in different forms in different cases; they're not comparable in simple and measurable terms. One shouldn't be pitted against another in contests of "who's worse off?" and no one should have to wait for their basic civil and human rights.

It's especially easy, and dubious, to tell other people they have to wait and be patient to obtain terms of life one has had since birth.

"Denial of gay marriage rights is not nearly that incendiary."

We're individuals. It's individual lives that are incinerated, or at least singed. If you can get most people who can't marry to sign off on this idea, I'll be more inclined to accept the point.

"Do gays need judicial intervention as much as blacks did? Maybe."

Respectfully, I can't begin to say how uncomfortable I am with people passing judgment this way on the lives of others.

"So, when legal conservatives finally are able to overrule Roe, you don't mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?"

You'd have to think that someone was being cruelly and dehumanizingly discriminated against for that to make sense.

"Chattel slavery was a unique form of oppression, but the oppression of women is another unique form of oppression."

Ok, I'm confused: Why the past tense in one case, present in the other? Chattel slavery is scarcely a thing of the past in other parts of the world, (And even crops up occasionally here in the US, though not openly.) while to call women oppressed in the US is an insult to all victims of real oppression.

Gary @ 8:34: thank you. Well said.

Jesu: you have decided that your freedom to marry the man of your choice is exactly like Charles Graner's freedom to torture prisoners in Abu Ghraib.

Sebastian: Does this make the death penalty cases, and the gay marriage cases and the torture memos all just as bad as each other in a general sense? No. But in the sense that they are all corrosive to the rule of law, yes.

"Exactly like"? Not even close. But I think you knew that, and were just looking for (another) chance to slam Sebastian.

Because we are talking about US laws, Brett and laws here have done a decent job of stamping out chattel slavery. Though the notion that if someone is treated worse, the people who may be treated badly, but not as badly as the worst case, have no standing to complain is something that runs through all your comments.

"Ok, I'm confused: Why the past tense in one case, present in the other? Chattel slavery is scarcely a thing of the past in other parts of the world,"

Because I'm talking about the U.S.

[...]

"(while to call women oppressed in the US is an insult to all victims of real oppression."

I accept that you're quite blind to it, Brett, but I decline to bother to engage in a futile attempt to convince you of how wrong you are. Go read a good reading list of feminist books.

Every legal conservative I know believes that overruling Roe will simply return the issue to the States.

Sure, the issue will return to the states, but there is no reason to believe that it will not continue to be a federal issue. After all, the federal government preempts state regulation in many areas. After the fall of Roe v Wade, many anti-abortion groups will seek both federal and state legislation banning abortion.

I do not understand why anti-abortion groups would tolerate a legal regime in which infanticide was legal in New York but illegal in Connecticut. Nor do I understand why groups that consider abortion to be equivalent to infanticide should tolerate a legal regime in which abortion was legal in some states but not others. After all, if slavery is wrong, it should be illegal in all states, right? If murder is wrong, it should be banned in all states, right?

Now, do I and many other social conservatives want to amend the Constitution to outlaw all abortions. You bet we do. But you see, Article V allows us to do just that. That's not lawlessness. That's democracy.

First of all, amending the constitution so as to ban abortion will keep abortion as a federal issue. Most such amendments simply nullify Roe v Wade, but in a world where Roe v Wade does not hold, there is no bar on federal restrictions of abortion. Beyond that, some of these amendments explicitly ban abortion in all states, completely eliminating the states' right to decide on their own abortion laws.

I never said that this result would be lawless or undemocratic. My contention was simply that eliminating Roe v Wade will not eliminate abortion as a federal issue. You have created rather dull strawmen when you talk about lawlessness and undemocratic behavior.

Gary, with respect, you're simply repeating at greater length the point I made at the end of my last post. From a natural law, Kantian, or Rawlsian point of view, it doesn't much matter how many people are hurt, how much the harm to them disrupts society, or how hard it is to remedy the wrong. From a utilitarian or 'policy' standpoint, it does. Neither of us are that utilitarian.

But I prefer to take risks with my eyes open. Publius says he thinks the republic will survive. I dunno -- we're in pretty lousy shape, rights-wise, and it's in large part because outraged traditionalists keep putting people like Bush into office. Publius is taking a non-absolutist natural rights position: freedom and dignity, but not to the point of a suicide pact. Sounds good to me, but in that case, let's talk about the risks. The last time we had this kind of kulturkampf over court decisions was Roe v. Wade, and the backlash from that helped propel Bush into office. So, if this strategy gives us President Palin, will it
be worth it?

I don't think you can answer that just by saying that it is worth it to the victims of oppression, or that both blacks and gays were denied marriage therefore they are in all relevant ways the same.

Ok Gary, I accept that you find the fact that life in the US isn't designed for the exclusive convenience of women to be comparable to the suffering of a chattel slave in the Sudan. I think it shows a crazy lack of proportion, but that's your view.

Publius says he thinks the republic will survive. I dunno -- we're in pretty lousy shape, rights-wise, and it's in large part because outraged traditionalists keep putting people like Bush into office.

I think you're making a claim about how certain forms of judicial decision make cause traditionalists to vote for conservative politicians like Bush. Is that right? If so, then I don't find your argument about causality to be self-evident here. Do you have any evidence to justify this belief?

I'd suggest that there are many other things that outrage traditionalists into electing leaders like Bush. For example, the pace of technological and economic change has increased which is naturally unsettling to vast numbers of people. I mean, voters are supporting reactionary conservative politicians in countries all over the world and most of those countries do not exhibit the court dynamics under discussion here.

"Ok Gary, I accept that you find the fact that life in the US isn't designed for the exclusive convenience of women to be comparable to the suffering of a chattel slave in the Sudan."

What I actually wrote:

Forms of oppression don't come as clones of each other. Chattel slavery was a unique form of oppression, but the oppression of women is another unique form of oppression. That a civil war hasn't been fought over it doesn't make it a lesser form of oppression.

[...]

Social and legal oppression comes in different forms in different cases; they're not comparable in simple and measurable terms.

So, sure, by "not comparable" I meant "comparable."

Not.

"but in a world where Roe v Wade does not hold, there is no bar on federal restrictions of abortion."

Ah, but this is the precise point: The sort of judicial activism which gave us Roe, (And the more important, and undeservedly less notorious Doe v Bolton.) is precisely the reason that getting rid of Roe would, under current precedent mean there was no bar on federal restrictions of abortion.

It was the same sort of judicial activism that produced Roe, that gutted limits on federal power. And if they'd not been gutted, abortion would be beyond federal reach, aside from perhaps barring crossing state lines to obtain one. And even that would be a stretch under pre-Wickard commerce clause understandings.

You win your victories this way, at the cost of making them forever insecure.

"That a civil war hasn't been fought over it doesn't make it a lesser form of oppression."

True. A hell of a lot of other things make it a much, much lesser form of oppression, if you must stoop to so misuse the word.

Strict constructionism is not perfect, but it's reasonably predictable. Judicial activism and a "living constitution" aren't. Whatever it creates today it may destroy take away tomorrow.

"Ok Gary, I accept that you find the fact that life in the US isn't designed for the exclusive convenience of women...."

Brett, I'm curious: why do you think it is that the overwhelming majority of prostitutes are women, not men?

Why do you think it is that out of one hundred Senators, only two are women? Why do you think it is that there has yet to be a woman President? Why do you think it is out of 500 "Fortune 500" companies, only fifteen are headed by women? Why do you think it is that it's mostly women who are raped, not men? Why do you think it is that many flavors of various religions preach that women must submit to men, and not vice versa? Why do you think it is that many flavors of various religions preach that women don't have equal legal rights to men? Why do you think it is that in the lifetime of some still alive, women had no right to vote in our country?

And so on.

I imagine that where the differences in position are as stark as they are in, say, Afghanistan, or Saudi Arabia, you wouldn't contemptously argue that "life [there simply] isn't designed for the exclusive convenience of women," but you might -- and I'm going out on a limb here -- notice that their societies are violently sexist against women, and that the sexism and power aren't mirror images there for each gender.

But here in the U.S., where you have the privileges of a male, and don't have to bother to educate yourself or pay attention to the power imbalance between women and men that still dramatically exists, beyond noting the most obvious and superficial points, such as that, say, women now have the right to vote, you can afford to be blind to ongoing sexism, and dismiss it, like you dismiss the class oppressions of anyone who isn't you, as trivial.

How lucky you are.

On a statistical basis, I suppose we might prefer that the majority oppress the minority, rather than the other way around, but shouldn't we really prefer that nobody gets oppressed?

link

The democratic process may frequently result in oppression of the minority by the majority, (Which is why I think as much of our life as possible should be out of the government's reach, period.) but oligarchy can result in oppression of the majority by the minority, which is at least statistically worse. And rule by judges is just as much oligarchy as rule by any other clique.

link

Funny how for Brett, it's oppression when it's universal health care or firearm registration, but it's not when it is related to sexism. Wonder why that is?

Typepad stripped out the links. They were

http://obsidianwings.blogs.com/obsidian_wings/2009/04/why-we-need-universal-health-insurance.html?cid=6a00d834515c2369e2011570313109970b#comment-6a00d834515c2369e2011570313109970b

and

http://obsidianwings.blogs.com/obsidian_wings/2009/04/and-now-for-something-completely-different.html?cid=6a00d834515c2369e2011570093451970b#comment-6a00d834515c2369e2011570093451970b

'Dan S.:: . . . and hopefully we'll continue to see further medical/public health advances in the fight against illness in the U.S. . . .
Brett Bellmore: What are you talking about?! To say that people in the U.S. are 'sick' are an insult to all victims of real illness! To say that anything Americans go through is somehow comparable to the suffering of people in places where basic medical care is rare of absent, where horrific parasitical diseases kill or cripple millions, etc., etc., etc. . . '

"When the law prohibits both people who want to do something, and people who don't want to do it, from doing that something, that's not strictly speaking "discrimination", for all that the impact is felt differently by the two groups.

Let's say a law was passed banning the production, distribution, buying and consumption of matzo. (The War on Unleavened Bread Products). This law would be quite even handed, prohibiting it both for the countless people who have no desire to be in any way involved with this particular rather dry flatbread, as well as people who do. In a certain sense, it's treating everybody 'equally', for a certain understanding of the word. Would this ban be discrimination?
____

I've read arguments that the anti-abortion backlash, at least in the beginning, didn't really have to do so much with the means of decision - ie, federal judiciary vs. state legislatures -but with the fact that it a) made abortion much more public and explicit, b) openly defined it as a woman's choice, not a last-ditch medical procedure chosen by doctors, and c) and announced that fetal 'personhood' was up for grabs.

---

"the fact that life in the US isn't designed for the exclusive convenience of women"

That seems a very telling phrase.

"Funny how for Brett, it's oppression when it's universal health care or firearm registration, but it's not when it is related to sexism. "

OMG, I completely failed to put 1 and 1 together and connect Brett's comments here with the slightly earlier ones on horrible government coercion. For some reason talking about government coercion doesn't insult victims of far more brutal and coercive governments than ours. If only there was a nifty acronym for this sorta thing . . ..

@ Brett Bellmore: In your first comment, you seem to echoing the principles espoused by Raoul Berger in his 1977 book Government by Judiciary, but you reach opposite conclusions on the merits of Brown. It's been a long time since I read Bergers book, but as I recall he argued that a number of states which had segregated school systems ratified the 14th Amendment without even considering desegregating their schools, and that we can therefore conclude that at the time the 14th Amendment was adopted, it was not understood that segregated schools were not prohibited by the 14th Amendment. Unlike Berger, you haven't provided any arguments or facts to support your opinion of Brown, so I'd say that Berger wins the argument by default. In 1850, most people held views that we would recognize as racist today. The argument at the time was basicly over a matter of degree. Some people argued that blacks were so far inferior to whites that blacks shouldn't be granted the same right to liberty that we would grant even to the village idiot, as long as the village idiot were white. Others, somewhat more enlightened, argued that even blacks were entitled to some minimal level of human rights. The originalist view basicly imortalizes the prejudices that existed when the Constitution was written. It seems to me that if you don't want a jurisprudence that reflects racist, sexist, and homophobic views, you have to allow the basic Constitutional principles, such as equality, to reflect the way our understanding of those principles has evolved over time.

What is an "ex ante principle"?

This has been a wonderful discussion, far leaving my points behind. But I have to ask those who are arguing in favor of a legislative solution, when has a legislature edvedr gotten out in front of the judiciary on a topic like this?

In racial civil rights, the legislative accomplishments were zero -- they weren't able to institute a voting rights act -- the most elemental of civil rights -- or outlawing the white primary, or even passing an 'anti-lynching' bill or an 'anti-poll tax Amendment' until long after tyhe courts had shown the way.

Women, of course, celebrate the legislative passage of the Equal RFights Amendment every year on -- now wait a second, no they don't, do they?

And states with anti=-sodomy laws, maybe they weren't enforced, but -- correct me if I'm wrong -- I don't remember any states acting positively to revoke such laws.

Racial and gender segregation in the Military didn't end by an act of the legislature but through executive orders.

(And even as gay-friendly a state as New York has yet to pass a true gay rights bill, or did so only in the last couple of yearxs.)

Discrimination is, until attacked by the sourts, popular, and politicians are less willing to offend the noisy bigots than the quieter anti-discrimination forces, again, unless forced to do so. (Harvey Milk's greatest achievement was showing that gays could be a political force as well.)

Wiat for the legislatures, and you'll have a long wait -- and would have had decades longer if the courts had not moved first.

But I have to ask those who are arguing in favor of a legislative solution, when has a legislature edvedr gotten out in front of the judiciary on a topic like this?

In Japan, where the judiciary is very conservative and the process of getting a case to court can take any number of years, human rights advocates have spent more time and effort trying to get laws written than trying to bring suits to trial. This makes sense because Japan has often accepted and given lip service to accepting documents that it votes on in the UN, but then fails to have their internal legal code support the rights that it claims to believe in. However, in the US, the courts are more accessible and decisions are more binding. In this sense, the judiciary can pull the legislature into writing code that better deals with the current situation. Thus, though I don't disagree with your summary, I tend to view it as (ideally) a balanced effort that draws upon the judiciary to be a place where the evidence can be presented with a high standard and legislatures can then deal with the reasoned decisions of the judiciary. That's the ideal, not necessarily the reality.

Why do you think it is that out of one hundred Senators, only two are women?

Gary? There are sixteen women in the U. S. Senate. (Not that that detracts significantly from your overall point.)

"Gary? There are sixteen women in the U. S. Senate. (Not that that detracts significantly from your overall point.)"

You're confused.

No, I'm confused. There are 17 women in the Senate.

And states with anti-sodomy laws, maybe they weren't enforced, but -- correct me if I'm wrong -- I don't remember any states acting positively to revoke such laws.

Actually, I believe that anti-sodomy laws had been repealed by legislature in many states before Lawrence v. Texas. Wikipedia">http://en.wikipedia.org/wiki/Sodomy_laws_in_the_United_States">Wikipedia agrees. 27 states repealed sodomy laws between 1962 and 2003.

"Which of these states had, in their constitutions, a "definition of marriage" to begin with?"

They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word 'is'. That is part of the pretense. If judges can redefine perfectly understood words, and if publius et al. support that, it really never ends. Marriage wasn't an ambiguous term. If we want to extend it to gay people (and we should want that) we can. But that doesn't mean the meaning was there all along.

And as for fun with commonly understood meanings of words, I refer you to the recently revealed torture memos...

Sebastian: No one had to explicitly define marriage as between a man and a woman any more than you have to define the word 'is'.

Actually, as the British Government found out in 1975 when they realised that they had Jan Morris, living and accepted as a woman, still married to her wife, you do have to explicitly define marriage as something that can only be between a man and a woman. Otherwise, yes, same-sex couples will marry. Or remain married, in the less-usual cases like that of Jan Morris. (Who, not long ago, registered a civil partnership with the wife from whom she was forcibly divorced by legislation more than 30 years earlier...)

Marriage wasn't an ambiguous term. If we want to extend it to gay people (and we should want that) we can. But that doesn't mean the meaning was there all along.

People who defined marriage as meaning a relationship between two people who had made a lifelong and loving committment to each other - not an ambiguous term in the least! - understood that this applied to same-sex couples too. Your notion that it can't is sad and self-hating. But that still doesn't make your freedom to marry anything like Dick Cheney's freedom to authorize torture.

They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word 'is'

Marriage? Don't you mean hǣmedþing? Man? Don't you mean beorn?

While marriage with parties* of opposite sex may be the common understanding, the restriction to 1 each is not. Historically moderate polygyny is the norm not the exception.
Btw, do the US recognize marriages with more than 2 people when not originating from the US (say, a Saudi or trad. African marriage)?

*partner would imply equal, which is also far from universal.

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