Jonathan Rauch's
op-ed for the NY Times has caused quite a stir among gay
bloggers (like
Joe.My.God and
Calitics) and, worse, has gotten him the support of
Maggie Gallagher. But Jon makes a fundamental point that most
people of the left are ignoring or understating, and those on the
right are exploiting. In order to understand Jon, it helps to
understand Linda Lingle.
Hawaii's Governor Lingle prominently
vetoed a civil unions bill yesterday. In her mind, civil
unions are just "marriage by another name," and since she opposes
same-sex marriage, she was inclined toward the veto. But she took
the time to listen to supporters for both sides, and in the end
decided that this was not something elected representatives should
be deciding. Marriage is so profoundly important that only the
people have the right to decide its form.
The problems with this reasoning are obvious to lesbians and gay
men, and to an ever-increasing number of heterosexuals. Giving an
overwhelmingly large majority the ability to decide on or deny the
rights of an extremely small minority can be problematic if the
majority harbors prejudices and even misguided passions about that
minority. That's not always true, but it's exactly the problem the
constitution's equal protection clause was designed to guard
against. Under our constitutional system, there are some decisions
that even the largest majorities cannot make.
Lingle's failure to even mention the potential of an equal
protection problem was more politically convenient than it was an
accurate description of the legal landscape. While she made every
effort to present herself as having made a neutral decision, she
betrayed herself in what she left out. Equality is the very thing
the legislature in her state was trying to achieve, and she could
not bring herself to address that core injustice.
In fact, the apparently neutral appeal to the people's right to
vote is nothing more than an appeal to what prejudice against
homosexuals still exists. It is a way of reinforcing the status
quo and cementing it in place at exactly the time the status quo is
drifting toward a more just equilibrium.
That is the responsible criticism of Jon's piece. In a
representative democracy, courts can and should be modest about
their role, and overturn statutes (whether passed by legislatures
or voters) in only the most rare cases. Court decisions that
contravene the very strong will of a majority can and will be
overturned, and if that requires amending a constitution, well that
is not unheard of.
No one should know that better than lesbians and gay men. Not
only have voters in thirty states amended their state constitutions
to prohibit same-sex marriage, most all of them did it
preemptively. In that context, Jon is not exactly going out on a
limb in thinking that a decision from the U.S. Supreme Court
mandating same-sex marriage in all fifty states would not go over
well among the American public. There is a very specific political
risk to us if the court makes the right constitutional decision.
That's not a very idealistic state of affairs, but it's foolish to
ignore it. Jon is not foolish.
But Jon's argument is a bit narrow because he focuses on the
California case of Perry v. Schwarzenegger. When he says
that the voters may have made a reasonable decision on Prop. 8,
he's talking about a state where we have comprehensive domestic
partnership rights for all same-sex couples. Prop. 8 did not
change that. It was no less the reaffirmation of a fatuous and
anachronistic view of homosexuals, but in California, the legal
inequality of same-sex couples is at the margins. That's still
wrong, and in my view still unconstitutional. But Jon's point
remains a critical one. Too broad a decision from the U.S. Supreme
Court could spark a backlash that would gladden the blackened heart
of Karl Rove.
In contrast, Gov. Lingle's decision highlights what inequality
looks like for same-sex couples in too much of the rest of the
country - including Jon and his husband in Virginia. Not only are
they barred from marriage in the state where they live, the law
prevents them from having virtually any recognition of their
relationship.
When she equates civil unions with marriage, Gov. Lingle leaves
lesbians and gay men with no option but the constitutional one, no
equality but what the constitution demands. In effect, she dares
the courts to defy the voters, or dares the voters to defy the
constitution itself. Hawaii's legislature attempted to provide a
compromise, and she took the compromise off the table.
That is the political game the left thinks we shouldn't have to
play. I can't disagree with that. But we can't wish away that
reality. Courts or no courts, we still have to work for our
equality. Jon can't be faulted for saying that out loud.