Jack Balkin has an excellent column on the DOMA decisions from the federal court in Massachusetts. He makes the best case I've seen for an appeals court to overturn them.
But his argument is not so much a legal one as a tactical one. He says, in the first paragraph, "I believe that federal and state laws that discriminate against same-sex couples violate equal protection of the laws. But I have no faith that the Supreme Court will agree with me for many years."
This is the dilemma - and the frustration - that gay marriage proponents crash their skulls against every day. Of course the equal protection clause means what it says. Lesbians and gay men are citizens, too, and unlike virtually any other specified class of citizens in the modern world, they are called out in specific laws to be denied rights that the majority takes for granted for itself. The equal protection clause was designed to address exactly this kind of injustice by the majority against a very small minority. There are very, very few respectable legal professionals in this country who do not see that simple and blindingly obvious fact. Court after court after court finds our arguments to be persuasive and even compelling.
The Massachusetts decisions are newsworthy only in that they are from federal rather than state courts. That changes the staging of the problem, but that makes a big difference. Balkin's concern is not with the ultimate justice of gay equality, only its timing for the nation as a whole. It is too soon for marriage equality to be recognized by the federal courts. Some day it will. Some day it must. But the nation isn't ready for it yet.
He may be right about that. This is certainly the heart of Jonathan Rauch's position. Gay marriage, gay equality is inevitable. Also inevitable is the backlash a premature court ruling would create. Let gay marriage play out in the states first. It's too soon for too many. Let folks get used to it.
The constitution guards against inequality, but it does not guard against political firestorms. And the political firestorms over gay marriage have amended constitutions, themselves, to specify inequality for homosexuals, or to prevent such equality from ever even being declared. The tradition of discrimination - or, perhaps more fairly, the tradition of homosexual invisibility among heterosexuals - is too strong. Too many people are just not used to there being homosexuals who aren't ashamed enough of themselves to hide or remain decently silent.
But a lot of homosexuals - and extremely powerful heterosexual supporters like Martha Coakely and David Boies and Ted Olson - are willing to take the risk. Homosexuals aren't going back to the closets, and the injustice Americans could always blind themselves to before is now out in the open all across the nation. It's been a quarter of a century since domestic partnership first found its way into the law, and seventeen years since the Hawaii Supreme Court decision in Baer v. Lewin. Maybe the time is right.
Balkin and Rauch have a respectable political point, and they have 30 state constitutional amendments as pretty strong evidence on their side. But the rest of us have a point, too. Maybe each of those federal court battles, and each battle over a state court decision, and the battles over hate crimes laws and Ellen Degeneres and Brokeback Mountain and Prop. 8 and Don't Ask, Don't Tell and the Today Show's Wedding Contest and Tinky-Freaking-Winky are having their effect, are eroding that rock of silence that we were hidden behind for so many generations. Maybe this is the time.
It is now our heterosexual opponents who want to hide, while still availing themselves of political appeals behind the walls of TV commercials and sermons to the converted. They deeply believe themselves to be right, and are not used to having to defend themselves. But as David Boies so eloquently pointed out, lectures and soundbites full of the convenient arguments from unexamined tradition are having a hard time standing up to scrutiny: "In speeches, no one gets to cross-examine them." Courts have to go further and further out of their way to find reasons to uphold marriage laws that are flatly, facially and glaringly unjust to homosexual citizens.
That is certainly why we win in courts of law, and have been losing in the political arena. Voters never have to explain themselves; courts always do. And that is why Maggie Gallagher and her partners in this modern crime continue to threaten "activist judges" and those of us with the temerity to argue from justice rather than politics. "We still have politics, we still have prejudice," she implicitly threatens, not incorrectly.
Balkin offers an honest and respectful legal argument to solve a political problem that happens to manifest itself in the courts. But his extraordinary effort shows how hard it is today to patch over the shabby excuses for not reading the simple words of the constitution plainly.
24 Comments for “Patchwork”
posted by Amicus on
Rather than debate what constitutes a well calibrated civil rights struggle and whether such a thing is even possible, there is this.
In the wake of this decision, Congress should take up and the President should sign a repeal of DOMA-3.
This would obviate the need for a high court ruling, no?
posted by Bobby on
Here’s how we lose in the court of public opinion
https://www.blogger.com/comment.g?blogID=32538379&postID=1630222480266359972
posted by Jorge on
Here’s how we lose in the court of public opinion
https://www.blogger.com/comment.g?blogID=32538379&postID=1630222480266359972
Well…
we can always make racist jokes at the family dinner table. Or… have make anonymous posts wishing people will die of AIDs?
posted by Bobby on
“we can always make racist jokes at the family dinner table. Or… have make anonymous posts wishing people will die of AIDS?”
—Jorge, address the issue. A catholic professor in a catholic university got FIRED for teaching the catholic view on homosexuality. How the hell does that make sense to you? And how the hell is teaching that view hate speech?
Besides, there was ONE anonymous poster wishing people die of AIDS. One asshole doesn’t represent an entire website. Visit gawker.com, look for Rush Limbaugh, and find out how many people wish his death. Visit advocate.com and see the nasty stuff they say about almost everyone.
posted by Amicus on
address the issue?
1. Probably more to the story – FOX isn’t exactly a trustworthy source for getting the facts out, just getting enough of them to support their agenda.
2. Who cares? He can go back to teaching at his church. Someone who isn’t partisan in presenting Catholic beliefs can take his post.
3. It’s odd to see the rightwing in arms about ‘academic freedom’. Historically, that cause was fought by liberals…
Besides, why shouldn’t we let employers fire Catholics, if they want? Afterall, they can fire gays. I didn’t choose to be gay, but they did choose to be Catholic.
posted by Debrah on
“It’s odd to see the rightwing in arms about ‘academic freedom’. Historically, that cause was fought by liberals.”
***************************************************
You need to catch up with reality by checking here and here.
The latter, will be sponsoring a conference this coming week for which Jonathan Rauch will serve as Friday night’s keynote speaker.
Anyone who can make such a statement as the one quoted above has most certainly not kept pace with the academy for decades.
The opposite is, sadly, the case.
Lastly, if FOX NEWS is not considered “trustworthy”, but the modern academy is considered trustworthy…….
……..then the overt corruption and dungeon-level academic standards are going to be very safe with your ilk.
Fortunately, the idea of “tenured professors” is slowly going out of vogue.
In the coming years, the ultra-Liberal dead weight and faux scholarship will have to find another host on which to feed.
posted by Bobby on
“1. Probably more to the story – FOX isn’t exactly a trustworthy source for getting the facts out, just getting enough of them to support their agenda.”
—-No, Fox reports with FACTS and they also have commentary shows which are clearly labeled as such. Fox only agenda is ratings, their way to get them is by reporting ALL the stories that are important, instead of just the bullshit the rest of the media cares about.
“2. Who cares? He can go back to teaching at his church. Someone who isn’t partisan in presenting Catholic beliefs can take his post.”
—Can you imagine Cornel West being fired from Harvard for the radical things he teaches? Can you imagine the outcry if a gay teacher got fired? Who cares? People who care about freedom and fairness care.
“Besides, why shouldn’t we let employers fire Catholics, if they want? Afterall, they can fire gays. I didn’t choose to be gay, but they did choose to be Catholic.”
—Fine, the next time a school fires gays, don’t complain then. If your attitude is “freedom is only for me” then don’t expect anyone else to give a damn about your rights.
The firing of this man was unjust, I hope he sues and I hope he wins.
posted by Jorge on
The issue speaks for itself, Bobby. You’re preaching to the choir.
My point is that if you create a culture in which people with mainstream religious and racial views are unable to express them in public, it makes them unable to come to the table to solve social problems in which race or religion are in the mix. Forcing such a large portion of the population underground is detrimental. They will still wield significant power, but make the decisions on how to use it behind the scenes, beyond any hope of engagement or criticism.
It does not accomplish anything good when you banish people of good judgment and character from the public sphere and into the realm where people say the most vile things anonymously or in private. Those are not the people we want them talking to, we want them talking to us. It does not accomplish anything good to create the conditions for a “silent majority” against us which is impossible to measure, anticipate, or debate because we are so out of touch with them.
However, that is the society that exists today, that’s the side of the fence where we find ourselves, and so we shall have to play by the rules and make racist jokes in private, consign people to hell anonymously, and make important decisions that affect other people’s lives without being upfront as to the real reasons.
posted by BobN on
sigh
Public university, not private, Catholic one.
Adjunct professor, not tenured.
As for FauxNews providing “facts” ahead of everyone else, well, playing on fears and emotions and providing sensational headlines without actually getting out there and delving into the issue and taking the time to build a solid journalistic piece is easy and, in the end, providing the whole story bores people to death with things like conflicting stories, juxtaposed principles, niggling details.
Bobby is wrong, it’s not just about ratings.
posted by Bobby on
“Public university, not private, Catholic one.
Adjunct professor, not tenured.”
—Ok, I got my fact wrong there, but I didn’t get it wrong because of Fox, I got it wrong because I read the blog entry too fast and then after posting went to the Fox link. However, is it wrong to teach that the Catholic Church doesn’t approve of gays and transsexuals? No. You have to teach the truth, if it had been a gay professor that had been fired for saying that the church is homophobic you’d be up in arms.
“Bobby is wrong, it’s not just about ratings.”
—Everything is about ratings in the media, that is unless you have rich friends like Air America, financing from a Mexican billionaire like The New York Times, tax dollars like PBS or perhaps a future government bailout.
As Bill O’Reilly responded to an e-mail, “we don’t have to be CSPAN.” After all, who wants to watch 3 hours of politicians going on and on about nothing? We need good networks like Fox to narrow it down to nice 5 minutes segments. Fox cuts through the bullshit and finds the truth.
Besides, the purpose of any business is to make a profit, that is their sacred duty not just to the stockholders but to the owner, employees and society at large. Financial success breeds social sucess, I don’t admire Bill Gates because he donates money to charity, I admire him because his business and wealth have benefited the lives of millions. In fact, I would admire Gates more if he started buying steelmills, cinemas, hotels, casinos, etc, which would create more jobs instead of giving money to charity which rarely creates any jobs.
Even so-called “non-profits” need to make sure that they’re taking in more money than what they’re giving out. Why do you think Harvard charges $50,000 a year in tuition? How else can they pay their bills?
posted by Amicus on
the purpose of any business is to make a profit
———–
Explain the Glen Beck show to us, then. We know that just about all the sponsors have pulled out.
If you know the economics of Rush Limbaugh and his brand of radio, you know that he wouldn’t be on the air as a standalone. His “economics” wouldn’t support it.
is it wrong to teach that the Catholic Church doesn’t approve of gays
posted by Hunter on
I’m not sure that history is on Balkin’s side, although I think he’s right to be worried about the case(s) getting to the present Supreme Court. Most of the major civil rights decisions have been way ahead of their time, and the nation has just had to catch up.
I think the strength of Tauro’s decisions (speaking as a non-lawyer) is that he noted animus as the motivating factor behind DOMA — never a legally valid reason for any legislation. Let’s see if the Court is prepared to overturn Romer and Lawrence.
posted by Amicus on
Can you imagine Cornel West being fired from Harvard for the radical things he teaches?
======
But, of course I can. If you read some history, which Debrah has obviously skipped, you’ll know that it used to happen all the time.
Fine, the next time a school fires gays, don’t complain then
====
Actually, I can complain. But, why should I feel badly about Catholics who don’t and won’t? What principle allows them into the ‘hands off’ club, but denies gays and lesbians the same?
posted by BobN on
However, is it wrong to teach that the Catholic Church doesn’t approve of gays and transsexuals? No.
Did you read the professor’s email that got him into hot water? His explanation is not what the Church says about homosexuality, certainly not expressed at a college level. A Catholic university would have fired him for incompetence, a good one at least.
And he didn’t teach it as “this is Catholic teaching”. He explicitly said that his (rather primitive and ham-fisted) understanding of homosexuality was reality based and that anyone who hadn’t really informed themselves about homosexuality wasn’t in a position to discuss the moral issues.
Strikes me, he condemned himself.
posted by Bobby on
“Explain the Glen Beck show to us, then. We know that just about all the sponsors have pulled out.”
—I used to work in advertising so I know a thing or two about ratings and the price of airing a commercials. If Bank of America doesn’t want to air a spot on Beck, there are plenty of other sponsors willing to pay the price, like Goldline for example. Goldline pays the same as Bank of America, and you know what? So-called “respectable” sponsors are coming back to the Glenn Beck show because in the end ratings matters more than any so-called controversy.
“If you know the economics of Rush Limbaugh and his brand of radio, you know that he wouldn’t be on the air as a standalone. His “economics” wouldn’t support it.”
—You have got to be kidding, ClearChannel is one of the largest radio networks in America with more than 500 stations, including hundreds of talk radio stations with a wide variety of hosts with the same politics as Limbaugh. It’s Air America that is bankrupt!
“Until one can be critical (in the good sense of the term) of FOX and the entire rightwing two-step on some of these issues, as equally as any other doctrine, one hasn’t become “Independent”, which is the banner of this forum…”
—It’s called “independent” because the forum attracts a wide variety of people who don’t think alike. I don’t have to criticize what works and I don’t have to move to the center for the sake of being independent.
Here’s an example of why people watch Fox News.
http://www.youtube.com/watch?v=djeGqNVXjZE&feature=PlayList&p=96A8E84DA53534EC&playnext_from=PL&playnext=1&index=29
“Actually, I can complain. But, why should I feel badly about Catholics who don’t and won’t?”
—-You’re supposed to care for freedom, when the ACLU defends a nazi is not because they like nazis, is because they like freedom. It’s the same reason they would defend burning a cross in private property no matter how offensive it is. Of course, if you’re a progressive then the only thing you really care about is social justice, a funny little theory where whites are always guilty, blacks are always innocent, The Black Panthers are peaceful and the Tea Partiers are violent.
But if you are an independent, then you would be perhaps annoyed that a man can get fired for teaching Catholic doctrine in a Catholic class.
posted by Amicus on
Would I come here to kid you? (Well, I would, but not like that.)
Ever wonder why Rush “Boss” Limbaugh’s syndicated radio show is all over the place like the proverbial cheap suit?
If you do much driving in rural areas — e.g. between cities — “Boss” Limbaugh’s bloviations are often the only thing you can pick up on a car radio. Hey, that’s what CD players are for.
Did Rush accrue hundreds of local radio affiliates across the country because his political views are mainstream? That’s obviously not it. OK, so why IS his show so “popular?” Why do hundreds of stations around the country carry his show, the most widely syndicated talkfest in the country?
Glad you asked.
The real story is not generally well-known. The only reason I know is through my covering the business of radio for years for several major daily newspapers and also, for industry trade magazines like Radio World.
It’s because — ready for this? — Rush’s show was, and presumably still is, given away for free to many local radio stations.
link
Glen Beck show has been uneconomic for a long while, I’d guess, because of the sponsor pull out. If you killed someone on live air every night, I suppose you’d get ratings. It’s widely known that The Weekly Standard isn’t profitable for a long, long time, now. On the other hand, Air America, I believe, is in Chapter 7.
As for freedom, I’m still missing the “freedom principle” by which Catholics _might_ think they ought not be fired when it comes to their job, but it’s okay in general to fire their fellow gay and lesbian citizens.
Separately, FWITW, I’m also missing FIRE’s free speech principle or “individual rights” principle that _might_ protect a religious group’s members, who do not obviously believe in free speech at all (cf. heresy) and who may believe fervently in the dignity of the individual, but certainly not if it accords ‘individual rights’ that rival the collective?
posted by Jorge on
As for freedom, I’m still missing the “freedom principle” by which Catholics _might_ think they ought not be fired when it comes to their job, but it’s okay in general to fire their fellow gay and lesbian citizens.
I don’t recall Bobby making that point. Might want to stick to the facts of the matter at hand and not let irrelevant things bias a fair judgment. A Catholic theologian either has a right to the same fair judgment as everyone else. And if he doesn’t, then the consequence is going to be a dog eat dog world in which you are going to eaten by the Catholic theologian.
posted by Bobby on
“If you do much driving in rural areas — e.g. between cities — “Boss” Limbaugh’s bloviations are often the only thing you can pick up on a car radio. Hey, that’s what CD players are for.”
—Miami is not a rural area, buddy, and I can assure you that 610 WIOD is making a ton of money with Rush, Sean, Glen, and all the other conservative talkshows they have. In fact, Rush even had lots of listeners in New York. Even in places like San Francisco you’re gonna find lots of people listening to rightwing radio.
“Did Rush accrue hundreds of local radio affiliates across the country because his political views are mainstream?”
—His just as mainstream as American Idol, you may not like it but millions of people do like it.
“It’s because — ready for this? — Rush’s show was, and presumably still is, given away for free to many local radio stations.”
—There are different types of syndication. So what? Air America could be giving away their shows for free, but I doubt anybody wants that garbage.
“Glen Beck show has been uneconomic for a long while, I’d guess, because of the sponsor pull out. If you killed someone on live air every night, I suppose you’d get ratings. It’s widely known that The Weekly Standard isn’t profitable for a long, long time, now. On the other hand, Air America, I believe, is in Chapter 7.”
—I know that right now conservative media vehicles are doing great, The New York Times isn’t declaring bankruptcy, neither is The Wall Street Journal. Besides, if you killed someone every night it would get boring. If you bother to watch Beck instead of reading about it, you would see his show does change.
“As for freedom, I’m still missing the “freedom principle” by which Catholics _might_ think they ought not be fired when it comes to their job, but it’s okay in general to fire their fellow gay and lesbian citizens.”
—It’s not about them, it’s about us. People of integrity don’t wait for others to do the right thing, they do the right thing without being asked.
The fact that gay activists are often as bigoted as the people they protest against doesn’t win us any friends.
posted by Amicus on
the consequence is going to be a dog eat dog world
======
Well, I think we are getting somewhere, now, with this in the exchange.
Dog-eat-dog is not “freedom”, then, not “individual rights”, not “libertarianism”?
Trying to build a just society that isn’t quite so dog-eat-dog is sounding kinda liberalish, no?
“A Catholic theologian either has a right to the same fair judgment as everyone else.”
===
Why don’t we judge him as he would judge others?
Is it because of our “integrity” that we offer tolerance to those who don’t? Why is that laudable, rather than stupid?
Bobby, it does seem that, under normal market forces, Rush and Beck would have disappeared long ago, just as Air America is struggling and many other such shows.
posted by Bobby on
“Bobby, it does seem that, under normal market forces, Rush and Beck would have disappeared long ago, just as Air America is struggling and many other such shows.”
—TV and radio shows disappear everyday. I was a big fan of Ugly Betty and Dirty Sexy Money, but their low ratings killed them, so I don’t know what you mean by normal market forces. Yes, it’s true some radio and TV stations can’t afford to produce their own shows so they’ll air someone else’s shows, but that doesn’t mean they’re gonna air anything. I mean, Howard Stern lost a few affiliates back in this day perhaps because there are more people who think like Rush and less people that think like Stern.
You also have to remember that almost half the contry did not vote for Obama, not to mention independents that are growing very dissatisfied with the socialist in chief. So where are they supposed to go? The Daily Show with John Stewart only ridicules Republicans, MSNBC only ridicules the right except when the left isn’t leftwing enough for them. CNN is bland and boring. Larry King is retiring (probably due to low ratings). Oprah lost some viewers after she endorsed Obama.
So you see? Conservative talk radio becomes an outlet for anyone who doesn’t want to hear pro-Obama propaganda unfiltered. In fact, conservative talk radio actually cares about the market. I was a communication major and news editor of the college newspaper, I remember arguing with my editor in chief that we needed to be more controversial to attract more readers. You know what she said? She said she would rather have only one reader versus changing the style of the paper. So I know these people from the mainstream media, they are arrogant, they look down at the people, they think their job is to promote an ideology instead of reporting the news, they claim not to be biased yet only cover the stories that fit their agenda, and they are more concerned about winning a Pulitzer versus serving the people.
That’s why people turn to Fox. With Fox you know which professor is comparing the victims of 9/11 to little eichmans, which charity is helping people set up brothels, which government official declared himself a communist, which terrorist (Bill Ayres) is celebrated in academia and has worked with Obama, which racist pastor inspired Obama for 25 years, why sending your kids to Mexico for spring break might be a bad idea, etc, etc, etc.
Fox covers all the news people care about. No wonder they’re #1.
posted by Jorge on
Amicus, the consistent position would be for the students to be told to email their disagreement to the professor or stand up and be heard in the classroom. The catholic professor affirmed academic freedom in affirming that his students’ views have no role in the grades they receive. Academic freedom means encouraging the airing of different points of view. There is no evidence the professor stifled academic freedom or that his students did not have the opportunite to express their intolerance for Catholic theology. Unfortunately the professor’s own academic freedom was not respected.
This is a sore subject for me as I’ve had personal experience with at least one liberal professor who did advocate questionable views and who did assign different grades to people who disagreed with her–fortunately that was rectified pretty quick. I throw up my hands with these liberal academics and their intellectual dishonesty.
posted by BobN on
There is no evidence the professor stifled academic freedom or that his students did not have the opportunite to express their intolerance for Catholic theology.
Sure there is:
That’s from his letter ABOUT THE FINAL EXAM. Got it? If you don’t know what he knows about homosexuality through his “extensive research” and you don’t know what he knows about morals, you don’t know what you’re talking about. Besides, his conclusions, THE CONCLUSIONS, aren’t about religion, they’re obvious in the REAL world.
I repeat my position, he wasn’t fired for being anti-gay, he was fired for being incompetent. Read the part about consent and informed consent. He doesn’t know what he’s talking about.
Honestly, if you’re Catholic, his ramblings should offend you. He’s not teaching a class on Catholicism, he’s teaching a class on NARTH-inspired idiocies he’s heard on talk radio.
posted by Jorge on
Uh, thank you for proving my point.
He admitted knowing “this doesn’t answer your questions in many of your minds.” This is an acknowledgment that the matter has not been settled this day and an affirmation of open-mindedness and tolerance.
All I ask as your teacher is that you approach these questions as a thinking adult. That implies questioning what you have heard around you. Unless you have done extensive research into homosexuality and are cognizant of the history of moral thought, you are not ready to make judgments about moral truth in this matter.
This is fair, despite your objection. Be very careful. To paraphrase Linda Chavez in “An Unlikely Liberal”, her Mexican-American students may haved lived Chicano culture, and they may not like the way she pronounced the word, but at least she knows something about what Chicano literature is, because she has read it. Professors tend to demand people throw research at them in debates, and it’s a fair demand.
Part of the college learning experience is questioning. I can’t count how many times I was asked to question my own assumptions about race, class, religion, gender, and sexual orientation. And through college courses, one reads the research that attempts to answer those questions, and learns a skepticism or framework that allows you to question your own culture. You may turn away from the pull in the end, as I have on a lot of things, but you come out of it a bigger and smarter person. As a result, whenever I comment about race, I’m very likely to identify institutional racism and piss Bobby off.
Honestly, if you’re Catholic, his ramblings should offend you….
They don’t. Much of what you quoted is item by item from “Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons,” written by Joseph Cardinal Ratzinger. Admit it, you never read it, admit it!
Am I about to be clobbered?
posted by Jorge on
Excuse me, Linda Chavez’s book was “An Unlikely Conservative.”