Here's a link to Jonathan Rauch's New York Times op-ed, "A 'Kagan Doctrine' on Gay Marriage." If he's right, Justice Kagan's rulings may not be what LGBT activists expect.
Somewhat related. Columnist Steve Chapman at Reason.com looks at conservative angst over Supreme Court judicial activism and finds something surprising, in "How Republicans Made Their Peace with Sodomy":
When conservatives talk about judicial activism, they have in mind a variety of Supreme Court decisions-legalizing abortion, hindering the death penalty, allowing flag-burning, and preventing officially sponsored prayer in public schools. All these, they believe, ignored the plain words or the original meaning of the text.
But there is another decision that fits any definition of a liberal, activist approach. It came in a 2003 case, Lawrence v. Texas, involving two men who were prosecuted after being caught by police having sex in a private bedroom. ...
But after the initial denunciations, something odd happened: The decision vanished from public debate.
Roe v. Wade led to endless battles over abortion laws. The school prayer decisions have been defied in many districts. But once the sodomy laws were gone, they were forgotten. No one mourned them, and no one tried to bring them back.
Or virtually no one, as Chapman clarifies. His overall take: "maybe it's because they realize that laws trampling liberties most people take for granted can't be squared with the spirit of freedom and equality that defines the Constitution-even if the letter of the Constitution has nothing obvious to say on the particular matter at hand."
28 Comments for “Judicial Restraint?”
posted by Tom on
Kagan deftly explained the rationale behind the Court’s historic reluctance to get out too far in front of public opinion.
I think that Jon is reading more into her comment than may exist by suggesting a “Kagan Doctrine”, as if it were something new or unusual.
posted by BobN on
But after the initial denunciations, something odd happened: The decision vanished from public debate.
Uh… maybe if you don’t engage in any public debate about gay rights, it has “disappeared”. Several dahlings on the right still bring it up… Santorum (of course), Huckabee, too, as I recall.
And given that a call for recriminalization is on the platform of the largest GOP state party in the nation and got added to the Montana platform last week, I’d hardly say the issue is dead. Likely to prevail, no, but quite useful to keep alive as a money-making, line-in-the-sand-drawing issue.
And I don’t think I’ve been in a single DADT debate in which some opponent didn’t bring up the UCMJ, which bans sodomy.
posted by Bobby on
I’ve never heard Huckabee say that he wants to bring back the sodomy laws.
posted by David in Houston on
After reading Jonathan Rauch’s New York Times op-ed piece, this paragraph caught my eye:
“In her testimony, Ms. Kagan described the Supreme Court as “a wondrous institution” and the democratic process as “often messy and frustrating.” She was right, as every veteran of a civil rights struggle can attest. But she was also right to say that the court should be “properly deferential to the decisions of the American people and their elected representatives.”
This position is tantamount to “majority rules” or “the will of the people”. When society follows this path it NEVER results in the expansion of civil rights. Which is exactly why the Supreme Court cannot take what the “will of the people” want into consideration. They didn’t do that in their decision to legalize interracial marriage (70% of the public was against it), and they shouldn’t do it when it comes to marriage equality.
posted by Throbert McGee on
Wellll… to be more precise, the Texas GOP platform opposed the legalization of sodomy; whether this is synonymous with supporting the (re)criminalization of sodomy may be a matter of political philosophy. (When the War on Some Drugs is under discussion, it’s perfectly commonplace to hear people say, e.g., “I support the legalization of marijuana and the decriminalization of crack cocaine, though I oppose the outright legalization of crack.”)
Of course, it’s entirely possible that the Texas GOPers who put the anti-sodomy language into the platform weren’t thinking in such nuanced terms — after all, they were willing to say, in effect, that if a state-level supreme court banned Jesus-fish bumper decals from the employee parking lots of state agencies, those affected should have no right to bring a challenge to SCOTUS!
posted by Throbert McGee on
I would argue that there is sometimes a considerable difference between “the expansion of civil rights” and the inflation of what is merely a convenient entitlement into a “civil right”.
Loving v. Virginia and Lawrence v. Texas were both, in my view, about the expansion of civil rights (such as the right to freely associate — even in a very intimate way — without being arrested for it). And both cases were ultimately about government encroachment on negative rights — i.e., the “right to interracial marriage” and the “right to consensual adult sodomy” would’ve been adequately protected by the governments of Virginia and Texas had simply Done Nothing to interfere in the private lives of Mr. and Mrs. Loving, or of Mr. Lawrence and his boyfriend. But since Virginia and Texas EPIC FAILED to Do Nothing, I believe that the Supreme Court was justified in stepping in to override the will of the voting majority.
But the gay-marriage debate is entirely over positive rights — are states obliged to do something on behalf of gay couples (i.e., issue them some sort of “The State Hereby Recognizes You As a Couple” document), merely because the gay couples exist and pay taxes? And if states are obliged to do something, how much something are they obliged to do — for example, are “limited” domestic partnership laws (covering only, e.g., hospital visitation, durable power-of-attorney, and inheritance without a will) sufficient? Or are state governments obliged to establish, at the very least, “everything but the M-word” civil unions?
And provided that the “will of the majority” respects the rights of gay couples to cohabitate, own property jointly, give each other durable power of attorney, and bequeath personal property to each other, why shouldn’t the “will of the majority” have weight in deciding whether the state must offer all this and more to gay couples in one convenient package?
posted by Throbert McGee on
Aargh. Make that, “would’ve been adequately protected by the governments of Virginia and Texas simply Doing Nothing“.
posted by Debrah on
“But the gay-marriage debate is entirely over positive rights…..”
“And provided that the ‘will of the majority’ respects the rights of gay couples to cohabitate, own property jointly, give each other durable power of attorney, and bequeath personal property to each other, why shouldn’t the ‘will of the majority’ have weight in deciding whether the state must offer all this and more to gay couples in one convenient package?”
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Thank you, Throbert.
Excellent points, of course.
However, the weepy “activists” will claw and scream and continue to embarrass themselves by harking back to the “lunch counters”, “hoses and dogs”, “Selma”, “interracial marriage” ….etc….etc…etc…..as pathetic analogies.
Even those gays whom one might assume have a few brains use those tired and nonsensical narratives.
It’s really quite pathetic.
Jonathan Rauch opines:
“But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.”
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Even though Rauch most certainly is a strong proponent of SSM, his arguments always have a refreshing air of reason and the kind of objective intellectualism that is welcome.
There is someone home!
Here’s the rub, Throbert.
Many with whom I have discussed this issue simply do not view it as monumentally important, and believe, as I do, that all this weepy talk about “civil rights” regarding such subject matter is quite a hyperbolic show.
posted by esurience on
The Texas GOP platform, and the Montana GOP platform both call for the re-criminalization of sodomy. I imagine there are other states as well, I haven’t seen any claim that there’s been an exhaustive accounting of this.
The reason they don’t make a bigger deal out of it in their day-to-day talking points is that they’re focused on preventing us from marrying… and railing about gay sex makes them seem more unreasonable to the center of the electorate. I wouldn’t say they’ve “made peace” with it. It’s just a strategic decision.
If the Federal Marriage Amendment had passed, they’d be talking about Lawrence v. Texas and the need to overturn that.
posted by BobN on
I’ve never heard Huckabee say that he wants to bring back the sodomy laws.
If you believe they never should have been struck down, all it takes is a Supreme Court to reverse Lawrence and, bingo!, they’re back.
http://glaadblog.org/2009/01/12/huckabee-parrots-coulter%E2%80%99s-defamatory-phrase-%E2%80%9Cpro-sodomy%E2%80%9D-on-fox/
posted by Jorge on
This position is tantamount to “majority rules” or “the will of the people”. When society follows this path it NEVER results in the expansion of civil rights. Which is exactly why the Supreme Court cannot take what the “will of the people” want into consideration. They didn’t do that in their decision to legalize interracial marriage (70% of the public was against it), and they shouldn’t do it when it comes to marriage equality.
I disagree. The Civil War and the resulting Constitutional Amendments were ultimately a triumph of majority rule over secession. Also Brown vs. Board of Education could not have stuck without a whole social movement behind it. I would suggesdt that the volumnous and ground-breaking Civil Rights Act, not the Constitution or any of its Amendments, is the most important civil rights law on the books. (Which is precisely our problem, since it does not protect gays very much.) I could go on at some length.
I think Chapman’s article is flawed without asking Republicans directly. It is impossible to tell whether the lack of attention to the sodomy decision reflects a lack of focus (there are bigger priorities: Roe v. Wade and that Massachussets decision are both bigger fish to fry at the moment, and it is difficult to get all opponents unified behind a broad vision that includes opposition to sodomy laws) or a lack of conviction.
posted by Bobby on
Thanks for the link, BobN. Seems to me that while the governor may not like “sodomy” he’s not interested in enforcing sodomy laws:
“He made these remarks on his monthly radio show, “Ask the Governor,” as was widely reported at the time, including a July 3, 2003, Arkansas Democrat-Gazette article titled, “Huckabee said he supported the court’s decision because a law “that prohibited private behavior among adults” would be difficult to enforce. Next he’ll be telling us which of the Ten Commandments he considers “nonstarters. How about adults who privately operate meth labs? How about a private contract between an employer and employee for a salary less than the minimum wage? Hey! How about adults privately smoking cigarettes in their homes? Nope, Huckabee wants a federal law banning smoking but thinks state laws banning sodomy are “probably” unconstitutional.”
—So from reading Coulter’s column, all I can say is I’d be more afraid of her being governor than of Huckabee.
Either way, the issues that affect the country today have nothing to do with abortion, sodomy, porn, divorce, or anything of that nature.
THIS is what matters
http://www.youtube.com/watch?v=tAFiaraA3Bk
Generation Zero, a new documentary by Citizens United.
posted by David in Houston on
@ Debrah: Interracial marriage is a completely appropriate analogy to same-sex marriage. I’m sorry if you find the comparison of race and sexual orientation invalid, but the parallels simply cannot be ignored. In 2010, currently 53% of the populous does not approve of same-sex marriage. Seventy years ago 70% didn’t approve of interracial marriage. — It’s easy to dismiss that statistic since it happened so long ago, and now it’s unthinkable to believe that people could have had that (bigoted) mindset. But the reality is, almost three-quarters of America thought they were perfectly justified in discriminating against interracial couples.
In 2010, 29 states have bans on same-sex marriage. In 1940, 31 out of 48 states banned interracial marriage. Does history not teach us anything? Based on these statistics, same-sex marriage would be more acceptable to legalize across the country right now than it would have been for interracial marriage back then.
@ Throbert: The real question is what is the legal basis for states and the government to discriminate against citizens solely because of their sexual orientation? How does having one set of laws (civil rights) for heterosexuals and one for homosexuals benefit society as a whole? Obviously it doesn’t. California and Iowa’s constitutions acknowledged this as well. When you’ve got states passing constitutional amendments banning same-sex marriage, and the government passing the Defense of Marriage Act, how can you say that they aren’t interfering with the private lives of their citizens? They are legally forbidding homosexuals to the same right to life, liberty and pursuit of happiness that heterosexuals are “entitled” to. How do I have liberty (look up the word) if I’m unable to marry the person that I love? Is getting married not the pursuit of happiness?
Marriage is “merely a convenient entitlement”? Is that how straight couples regard marriage? Based on the divorce rate, perhaps you’re right. When you’ve got Gov. Sanford speaking out against same-sex marriage, then find out he’s flying down to Argentina to visit his mistress — and watching Rush Limbaugh get married for the fourth time — it’s difficult (if not impossible) to take the “will of the majority” seriously when they fail to see the hypocrisy in their own house.
posted by North Dallas Thirty on
Interracial marriage is a completely appropriate analogy to same-sex marriage.
Not really.
“Race” is a concept based somewhat on appearance, primarily on perception, and not at all on biology. Indeed, part of the Loving decision itself calls out specifically that the definition of “race” itself is in no way consistent.
Sex, on the other hand, is clearly differentiated at the biological level, at the physiological level, at the physical level, and so forth. Indeed, gay and lesbian people themselves are hypocritical in this matter, since their argument that gender and sex differences do not exist and that males and females are identical then neatly contradicts their insistence that they are incapable of loving any gender or sex other than their own.
The real question is what is the legal basis for states and the government to discriminate against citizens solely because of their sexual orientation?
Better question: why are pedophiles, incest practitioners, bestialists, and polygamists prevented from marrying that which they love? Why is that not interference with the private lives of citizens?
Answer: Because marriage is a privilege, not a right, and society is well within its rights to decide to whom that privilege will be extended.
Another example.
They are legally forbidding homosexuals to the same right to life, liberty and pursuit of happiness that heterosexuals are “entitled” to.
No, they are not.
People who later claim to be gay or lesbian, such as “Bishop” Gene Robinson and Jim McGreevey, had no problem whatsoever marrying a person of the opposite sex.
The fact that you are not sexually attracted to a member of the opposite sex is irrelevant. Society also prevents pedophiles, bestialists, incest practitioners, and others from marrying that to which they are sexually attracted. Again, privilege, not right.
posted by BobN on
—So from reading Coulter’s column, all I can say is I’d be more afraid of her being governor than of Huckabee.
Martha! Fetch the smelling salts! Bobby and I agree on something!
posted by Bobby on
Hey BobN, I know, it’s a miracle, we agree on something!
Regarding interracial marriage, I find it a lot more controversial than same-sex marriage. For example, say a brown Indian woman marries a white man with blue eyes, what is the child going to look like? What will his culture be? Will he consider himself white, Indian, both? Within the black community there’s always issues between light-skin blacks and dark skin blacks and blacks who bleach their skin and so forth, add a spouse of a different race and you complicate things even further.
So to me the argument that interracial marriage is natural while same-sex marriage is not is totally bogus. If anything, interracial marriage defies nature, it’s similar to breeding a bulldog with a labrador, the result is not necessarily pretty. And that’s not mentioning the cultural issues, unless you look like Barrack Obama (and he looks black, he could never pass for white in a million years), an interracial child who looks neither white nor black is likely to be rejected by both blacks and whites.
posted by Jimmy on
“Better question: why are pedophiles, incest practitioners, bestialists, and polygamists prevented from marrying that which they love? Why is that not interference with the private lives of citizens?”
Because PF, those actions are either illegal, evidence of mental illness, or both. Gay and lesbian citizens seeking equal treatment are generally law abiding, and, though some may wonder, of sound mind.
Where do you buy the alfalfa you feed your dates?
posted by North Dallas Thirty on
Because PF, those actions are either illegal, evidence of mental illness, or both.
Ah yes, that’s right, by laws passed by the majority that, wonder of wonders, criminalize “private sexual conduct”.
Since you argue that the majority has no right to regulate sexual conduct and that to do so is in fact unconstitutional, why, then, are you invoking these laws?
posted by BobN on
it’s similar to breeding a bulldog with a labrador
Well, it was a brief meeting of the minds. You can put away the smelling salts, Martha.
For example, say a brown Indian woman marries a white man with blue eyes, what is the child going to look like?
Smokin’ hot?
posted by Debrah on
Bobby–
I know you know this already, but it’s not the physical appearance of a couple—the color of hair, eyes, skin….etc……that is the issue.
Most people are not concerned at all, and in fact, support interracial marriage.
Personally, if I fell in love with someone of a different race, I wouldn’t give a thought to any of the issues you raise in that comment.
The thing that will always make the sexual coupling of two men repulsive to many is the sheer physical reality of it all.
This is something that “David in Houston” does not understand as well.
Most black people are offended by the analogy of using their race with being gay.
People cannot go into a closet at will to conceal their race. It’s a grotesque and lazy analogy. Not to mention, offensive, to those whose ancestors have suffered true discrimination.
A hetero couple of different races have sex without the gross and unhygienic violation of an orifice not designed for such “expression”.
And even though many gays like to exaggerate the percentages of heteros who engage in anal sex—(and I don’t know how anyone would know for sure)—I highly doubt that there are many who do with any degree of regularity.
The main sticking point is always the way which most of the population on the planet looks at that act.
Few heteros will ever admit it.
My sister is very liberal and always has been. She was always there for me as a child and all my artistic endeavors. She is extremely empathetic and kind to everyone.
So around the holiday when we were engaged in a discussion of politics and current pop-culture issues I asked for her thoughts on SSM and elements of gay culture.
When I touched on this topic, she simply said: “I don’t want to talk about it.”
I believe this sums up a lot of the gyrations of so-called Liberals who support SSM.
They really don’t know how to be supportive and also tell the truth about how they really feel about many aspects of the lifestyle.
posted by Jimmy on
“Since you argue that the majority has no right to regulate sexual conduct and that to do so is in fact unconstitutional, why, then, are you invoking these laws?”
As it applies to law abiding citizens, PF, the majority does not have a right. Those who break the law, or are deemed incapable of functioning normally in society, are in the position of having some of their rights constrained or revoked entirely by the polis, including pony fu**ers.
posted by Bobby on
Personally, I have no problem with interracial couplings, in fact, I’ve enjoyed many Asians in my life. I just made those comments to show people that interracial marriages can be just as controversial as same-sex marriages. Also, and let’s be honest here, interracial couples do stand out, specially when they’re from completely different races.
posted by Jimmy on
“Also, and let’s be honest here, interracial couples do stand out, specially when they’re from completely different races.”
They do stand out, for all sorts of different reasons. It took us 100 years to decide that, even though a black person is indeed fully human, not just 3/5, they are still worthy of marrying a white person. The thread that exists in the struggle for equality, both for blacks and gays, is one of legitimacy. In the same way blacks were made illegitimate by a ignorant and fearful public, that same ignorant and fearful public makes the same emotional journey same sex people travel that men and women travel, with the final destination being a legal marriage ceremony, illegitimate. Gradually, people are seeing that that same love, and that same desire to honor and cherish, are actually real.
posted by Jimmy on
I couldn’t agree more, Jimmy.
posted by Amicus on
There are at least two thematic problems with Jonathan’s latest.
He appears not to consider that, once one goes through the weeds on the issues involved, practical and theoretical, that marriage for gays IS the compromise position. I know that sounds strange, but it is true, especially if one really embraces the conservative case for marriage and the functional role of marriage in society (beyond the Blankenhorn absurd reductionism, I mean).
Second, he seems to assert that there is a “correct” adjudication that involves some type of temporization from the bench, in which we are actually called upon to believe that such temporization is a laudable thing, a hallmark of a judiciousness, a potentail Kagen Doctrine.
Of course, nothing could be further from the truth or inimical to an ordinary concept of justice.
If achieving moral clarity on the issue of gay marriage requires dipping into the realms of practical wisdom, it is NOT for temporization, for “readiness” of the populace. Instead, it would be regorouly to weigh claims against their consequences and to lay down a way back, in the event that consequences were misjudged, possibly. In such cases, we look to govern and to judge by proof, not by holy inspiration, dogma, or revealed truth. To my knowledge, opponents of gay marriage have raised a great many concerns, including their crowning one about the end of civilization. These are speculative, unconvincing. Last, if one wants to make “religious” decisions in the realm of practical reason, there are “rules” for that – they also point toward inclusion.
Finally, Rauch’s notion that there was a “reasonable judgment” rendered by the people of California is more than a bit too greenfield. There was no such thing. To acknowledge so much is not to be partisan or absolutist, merely sentient. Nonetheless, to fight for the _possibility_ of such a ‘rational judgement of the people’ is a grand idea, perhaps hopelessly grand; but we *know* that the good people of California (and Maine) mostly voted fear, homo-fear, not rationally, and certainly not based on a rigorous weighing of claims, which only highly deliberative bodies can do. The reasons for voting fear I think are known to all the readers here and to anyone who cares to look at the trial record before Judge Walker, including the duplicitous and disgusting ad campaign waged… Therefore, if anything, the actual facts of the case in California, not the greenfield, point toward judicial intervention, not the other way around.
posted by Amicus on
hummm…let’s see
Kagen=”Kagan”
“regorous” a cognate of “veegorous”, as in, “Up, down, touch-the-ground, very, very veegorously”
apologies (to the reader) for the rest of the language that was slaughtered in laying down these concepts.
posted by Amicus on
“not the other way around.”
might be better as
“not ‘judicial modesty’.”
posted by North Dallas Thirty on
Finally, Rauch’s notion that there was a “reasonable judgment” rendered by the people of California is more than a bit too greenfield. There was no such thing. To acknowledge so much is not to be partisan or absolutist, merely sentient.
No, to state that everyone in California who voted for Proposition 8 is ignorant and uninformed is to be absolutist.
Rauch recognizes that different people have different reasons and that all of those reasons may or can be valid.
You simply state that everyone who disagrees with you for any reason is wrong and their reasons are all invalid.
Rauch’s position is far more defensible. Yours is merely bigotry.