The Radical Gay Rights Ruling

by Jonathan Rauch on August 11, 2010

Published in the New York Daily New on Aug. 11, 2010

For all its morally admirable qualities, Judge Walker's ruling sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be. (Link to article at the New York Daily News)

{ 6 comments }

TS August 12, 2010 at 3:50 am

mmhmm!

esurience August 12, 2010 at 10:58 am

“Burke, a British contemporary of Madison’s, was the founder of modern conservatism.

Though he was no reactionary, he believed that utopianism and perfectionism, however well intended, should never displace reasonable caution in making social policy. It’s much easier to damage society, he pointed out, than to repair it.”

Err, but one of the things Rauch is known for arguing — and argues quite well — is that denying gays and lesbians the ability to marry harms society as well as the institution of marriage itself.

It seems impossible to hold that position while simultaneously regarding it as cautious.

Sometimes caution requires action rather than inaction.

William Quill August 12, 2010 at 4:46 pm

I generally like Rauch, but here he just seems incredibly negative. This civil rights issue is moving incredibly quickly, Lawrence was only seven years ago, and we now have a poll showing equal support for and opposition to marriage equality. It’ll probably be that bit further in favour if the case does get to the supreme court. Quote classical conservatives all you want, but at some point we do see step changes, rather than gradual changes, that work.

What did he want Walker to do? Given he was presented with no compelling case, he couldn’t be expected to say, It’s not constitutional to ban it, but a slow change is what Burke would have wanted. Civil unions were clearly not the acceptable compromise Rauch claims them to be for the couples Olson and Boies were representing.

Jorge August 12, 2010 at 7:22 pm

I don’t think he nailed his point.

Amicus August 14, 2010 at 5:48 am

Lincoln? Really? The signer of the Morrill Anti-Bigamy Act, targeting, in his words, “the scourge of plural marriage”?

“…ruling sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty.”

——

Reasonable on face, I think this ignores the subtleties of the situation.

Mr. Quill pointed it out, just above, but the reason this trial existed is at the core of the issue, not the ruling. Part of the reason the trial existed is a lack of willingness or aptitude for legislatures to sit down and dispassionate weigh the facts, implying the need for more deliberative bodies. Schwarzenegger himself, the named defendant, excused himself by pushing the ruling toward the courts. So, to hang “this ruling” out to dry as “crosswise”, is to miss the subtleties of why a ruling at this level was required at all, framed almost to make it look “activist” or impolitic or a power grab.

Separately, I don’t understand why JR continues to believe that the ‘people’s verdict’ in California is anything much to be respected, other than as a “Madisonian form” or whatever, because there is clear evidence that it was the result of a fear and smear campaign. (Indeed, the Prop8 trial materials include the post-mortem written by the guy who brilliantly orchestrated their “messaging”.)

Perhaps your analysis is crosswise with Burke and Madison, from that perspective, because you’ve lumped them in with “Protect Marriage’s” bogus campaign, in a bit of slight of hand. Did they really believe that “social restraint” meant accepting ignorance or animus? Are we really called to believe that “popular sovereignty” or “gradualism” extend to what happened in California, or perhaps, even in Maine, where the Bishops mobilized the electorate along “religious” lines? Is gradualism even a concept that extends to issues that affect, primarily, a minority, even one as small as 5%, who have little political power?

There is more, but that will do.

misfit010 August 23, 2010 at 1:55 am

What did Burke or Madison believe about the rights of non-white males, or of females? Where they incrementalist about civil liberties in their day?

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