Less is more

by David Link on February 14, 2012

Steve Miller, Jon Rauch and Dale Carpenter all have solid takes on last week’s Prop. 8 ruling, Perry v. Brown, and all make essentially the same point: The court-ordered path to same-sex marriage runs directly through politics.  Despite what the most starry-eyed activists imagine, no single court decision should recognize nationwide same-sex marriage, at least not in the immediate future — which these days means about a decade.

Like legislatures, courts can move incrementally, which is the primary virtue in Perry.  There is a general rule that appellate courts should decide cases on the narrowest reasoning necessary to resolve the case before them.  While the trial judge swung for the fences, the appellate court found a narrower rationale to decide the case that limits its effect to California.

Limiting the decision is not just a satisfactory result, it is an excellent one as a political matter.  The political climate in California has changed a lot since the spasm of Prop. 8.  Even the feistiest of the Prop. 8 supporters were pretty tepid this time around.  There were no Prop. 8 supporters at the court on the morning of the decision, and the newsies had a tough time even tracking any of them down for quotes.  There has been a lot more work done in the Black and Latino communities in California on same-sex marriage, and Prop. 8′s proponents are struggling, both financially and in their ability to muster public support.  The Mormon church has backed off its anti-marriage tone and is holding the purse strings a bit more tightly on this issue, which would leave the Catholic church, now back to the fight against birth control, on the hook.  I think a California only decision would be well absorbed by the politics out here.

But California isn’t the only state that gets the benefit.  Court decisions may have narrow effects, but the opinions can persuade other courts, and even politicians.  Same-sex marriage will be coming up this year in various contexts: Washington, Maine, New Jersey, North Carolina, Illinois, Maryland and others look like they will be on the 2012 front lines.  Each iteration of this debate, even in the places where we lose, leaves a few more of our opponents winded and adds a lot more supporters to our side.

Those political debates happen in the same culture judges and lawyers live in, and give attorneys and the courts time to think about the constitutional issues in different and more nuanced ways.

That brings me back to Dale Carpenter, who offers an original spin on the notion of what counts as a rational basis for a law that is purely symbolic, as Prop. 8 was.  His piece is well worth reading, and moves the discussion forward in a sound but unexpected way.

Every enhancement to the debate changes the politics a little, and that helps the courts see more ways to resolve issues that are less disruptive than grand pronouncements and overarching rules.

We will get to equality, eventually.  But we won’t get there in a straight line, or all at once.  Every resolution brings us back to politics, one way or the other.

{ 7 comments }

Lonnie Lopez February 14, 2012 at 2:46 pm

This analysis is 100% pure horse shit. First of all, your definition of “politics” is “Democratic Party politics,” meaning you place yourself solidly in the antigay camp which believes that LGBT people must put the interests of the Democratic Party ahead of the rights of LGBT people. This is a right wing opinion that is presented to LGBT people as “progressive.” The reality is that the movement has accomplished its greatest successes when we act INDEPENDENTLY of both antigay corporate parties. Did we get homosexuality removed from the DSM-III by your definition of politics? The hate crimes law was tossed around for a decade and nothing happened. We had a little march of about a quarter of a million people and they passed it in a weekend. The passage of legislation does, of course, require your definition of “politics”, but completely absent from this question is our own ability to apply pressure to those politicians.

Protest is politics. Elections are not.

The late great historian Howard Zinn put it well:

“Not only is Obama a politician. Worse, he’s surrounded by politicians. And some of them he picked himself. He picked Hillary Clinton, he picked Lawrence Summers, he picked people who show no sign of breaking from the past.

We are citizens. We must not put ourselves in the position of looking at the world from their eyes and say, “Well, we have to compromise, we have to do this for political reasons.” No, we have to speak our minds.

This is the position that the abolitionists were in before the Civil War, and people said, “Well, you have to look at it from Lincoln’s point of view.” Lincoln didn’t believe that his first priority was abolishing slavery. But the anti-slavery movement did, and the abolitionists said, “We’re not going to put ourselves in Lincoln’s position. We are going to express our own position, and we are going to express it so powerfully that Lincoln will have to listen to us.”

And the anti-slavery movement grew large enough and powerful enough that Lincoln had to listen. That’s how we got the Emancipation Proclamation and the Thirteenth and Fourteenth and Fifteenth Amendments.

That’s been the story of this country. Where progress has been made, wherever any kind of injustice has been overturned, it’s been because people acted as citizens, and not as politicians. They didn’t just moan. They worked, they acted, they organized, they rioted if necessary to bring their situation to the attention of people in power. And that’s what we have to do today.”

Jorge February 14, 2012 at 8:03 pm

Protest is politics. Elections are not.

Elephant dung.

Houndentenor February 14, 2012 at 9:52 pm

Nope.

We have to elect people who will do what we want them to do, AND then we have to pressure them to actually do it. It’s not enough to elect someone who makes promises and then trust they will keep them. These are politicians after all. It’s also pointless to protest people who are openly hostile to you. That’s true on any issue, not just gay rights.

Doug February 15, 2012 at 12:27 pm

It’s a little hard to ‘elect people who will do what we want them to do’ when most districts are gerrymandered to keep the incumbent in office.

Houndentenor February 16, 2012 at 7:39 am

No one ever said it was gonna be easy.

My point was that it’s not enough to elect people you think are friendly to your issues. You still have to hold their feet to the fire. It’s always been this way and probably always will be.

Tom Scharbach February 16, 2012 at 10:36 am

It’s a little hard to ‘elect people who will do what we want them to do’ when most districts are gerrymandered to keep the incumbent in office.

I have several responses to this:

(1) First, politicians respond to facts on the ground, and almost all of the political progress we’ve made over the last thirty years has come because gays and lesbians came out (the most important factor in changing attitudes), got involved in areas of the fight where they could contribute, and pushed hard and smart from the grassroots up in a wide variety of arenas, public, corporate and private.

(2) Second, the so-called “LGBT leadership”, politically entwined as it is, tends to be more cautious than the grassroots. The struggle for marriage equality is an example — the leadership designed a cautious “step-by-step” strategy designed to minimize “backlash”, but grassroots pressure turned the struggle into a scrum that has yielded progress faster than the cautious strategy would have done. We should not be afraid to be bold.

(3) Third, it is critical for gays and lesbians to get active in both political parties at the county, state and national level to support pro-equality politicians and withhold support from anti-equality politicians. The reason that the Democratic Party consistently yields high levels of pro-equality votes is that this work has been going on in the party for 30-plus years, building a cadre of pro-equality politicians at state and federal levels. Pro-equality conservatives have not been actively doing this work in the Republican Party, anti-equality conservatives have been active, and the results are what you would expect.

(4) Fourth, incumbency, like age, is self-correcting. Every incumbents will be replaced in time. We have built a political culture in the Democratic Party that ensures that most Democratic incumbents will be replaced, when the time comes, with strongly pro-equality Democrats. Pro-equality conservatives in the Republican Party need to get off their collective asses and do the same thing.

(5) Fifth, incumbency works for us as well as against us. Incumbents want to remain incumbents and have enough low animal cunning to measure the political winds. We have come far enough now, through our own efforts, where it is becoming politically dangerous for anti-equality incumbents in many legislative districts to stand against equality. Even incumbents who are currently anti-equality will respond, little by slowly, as we change the political playing field.

(6) Sixth, equality should not be a party issue. It certainly should not be a wedge issue, as it appears it will be again this election cycle. I am a Democrat and active in Democratic politics. Nonetheless, I believe that there are strong conservative arguments for equality, particularly marriage equality. In this respect, Jon Rauch has advanced one line of conservative argument (preservation of marriage as the “gold standard” and cultural expectation) for a decade, and the other line of conservative argument (the libertarian argument) dates back to Barry Goldwater’s advocacy. Both lines of argument need to be advanced, forcefully, in the Republican Party.

Tom Scharbach February 14, 2012 at 11:04 pm

Like legislatures, courts can move incrementally, which is the primary virtue in Perry. There is a general rule that appellate courts should decide cases on the narrowest reasoning necessary to resolve the case before them. While the trial judge swung for the fences, the appellate court found a narrower rationale to decide the case that limits its effect to California.

Dead on, David. The decision itself was right on target. The Court’s decision did not decide the broad question of whether or not a state can constitutionally deny marriage equality or get entangled in the thorny questions of “rational basis”, “heightened scrutiny” or “strict scrutiny”. Instead, Perry v. Brown will allow the Supreme Court to decide the narrow constitutional issue presented without expanding Romer v. Evans or precluding the normal development path of an issue to a final Supreme Court decision, which normally takes years, moving in small steps deciding issues step by step before a sweeping decision only after an issue has become “ripe for review”.

The decision is a slow pitch to the Supreme Court, and in particular, to Justice Kennedy, who is likely to cast the deciding vote in a divided Court. If the Proposition 8 supporters appeal the decision, the decision is likely to stand, either because the Supreme Court affirms the decision or because the Supreme Court refuses certiorari. In either event, marriage equality will again become the law in California, but the Supreme Court will have avoided the necessity of a broad, nationwide ruling.

Despite its limited scope and applicability only to California, the decision is an important step in our struggle for marriage equality. The decision’s reasoning should control the fate of the planned initiative in Washington, where marriage equality will signed into law this week, and in Maryland, should marriage equality be legislated in that state and challenged by referendum.

Perry is a good decision.

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