One quick reaction to two key court decisions, one in federal court, the other in Connecticut state court: Both are good news if you think there should be room in the gay-marriage debate for centrism and compromise.
Many (not all!) conservatives insist that a U.S. constitutional amendment is needed to stop federal judges from ordering gay marriage. They raised a hue and cry about an eccentric lower-court decision holding that Nebraska's ban on SSM and other gay unions violated the U.S. constitution. Well, a federal appeals court (the 8th Circuit) has decisively overturned that ruling. The appeals court didn't rule on whether the Nebraska law or gay marriage is a good idea. It just said that the law could be defended as rational (a super-low standard), so federal courts should defer to the state and butt out.
Good. Good for gays, and also good for the country. If the federal appeals court had barged in and overturned the state's ban, that would have given immeasurable impetus to the drive to amend the U.S. constitution. It would also have nationalized the gay-marriage debate, which belongs in the states, where gradually gay marriage can win converts. Maybe that's why the Alliance for Marriage was so grudging in its statement about the 8th Circuit decision.
The decision does pose a question for conservatives who believe, as conservatives should (and as AFM does not), that when it is not necessary to amend the Constitution, it is necessary not to amend the Constitution. With the appeals court having firmly butted out (and the U.S. Supreme Court 99.999% certain to let the decision stand), what's the excuse for an amendment whose supporters claim their goal is to stop judges from ramming gay marriage down the whole country's throat? If that's the problem, wouldn't a real conservative say, "Let's leave the constitution alone until there's some faint sign of need to change it"?
Meanwhile, the Connecticut court ruled against gay couples who said that the state constitution requires marriage-not just civil unions, which the state provides and which are like marriage in all but name. Make no mistake, I prefer marriage to civil unions. But many hard-core opponents of SSM would like nothing better than for courts to take away the civil-union compromise, because if it's a choice between all or nothing, "nothing" will usually win.
I bow to no one in my advocacy of gay marriage, but in a democracy, we have no choice but to persuade the public. That debate is going to take time. By keeping the issue at the state level and holding the door open to civil unions, these two court decisions promote compromise and deliberation over polarization and panic. The center is holding. Amen to that.
18 Comments for “The Nebraska and Connecticut Rulings.”
posted by Bobby on
I agree with Jonathan Rauch. Furthermore, ANY group is free to collect signatures and put an amendment on the ballot.
posted by Northeast Libertarian on
So presumably, you’d have no objection to a group collecting signatures and successfully passing an amendment in Massachusetts to, say, strip conservatives and Jews of the right to vote?
After all, if a majority passes the law, that’s all which is necessary.
posted by Bobby on
Well Northeast, that’s better than the city of Los Angeles being sued by the ACLU because their 100 year old city logo has a cross. If the majority is wrong, I’ll fight them, and if I can’t win, I’ll give up until a better time in history comes.
posted by Audrey on
I think the ACLU dose more good then ridicules, but when they do ridicules, boy do they ever do ridicules.
posted by Tom Scharbach on
“The decision does pose a question for conservatives who believe, as conservatives should (and as AFM does not), that when it is not necessary to amend the Constitution, it is necessary not to amend the Constitution. With the appeals court having firmly butted out (and the U.S. Supreme Court 99.999% certain to let the decision stand), what’s the excuse for an amendment whose supporters claim their goal is to stop judges from ramming gay marriage down the whole country’s throat? If that’s the problem, wouldn’t a real conservative say, “Let’s leave the constitution alone until there’s some faint sign of need to change it”?”
I listen closely to social conservatives (watch them like a hawk might be more accurate) and I’ve become convinced the the “activist judge” mantra is nothing more than a chimera, a way to divert attention from what is really at stake.
After you work your way through the “activist judge” layer of rhetoric, you get to the real issue — social conservatives understand demographics, and they know that they are going to lose this one, in time, unless something changes in our culture.
Every poll shows a significant difference in attitude between young and old on the issue of same-sex marriage, and every year our prospects improve in the legislatures, as the older folks die off and younger folks get to voting age.
The point of the amendments is to lock up the legislatures long enough to effect culture change. Social conservatives know that culture change is going to be an uphill battle, in any event, and probably a losing battle, but it is the only hope that they have to stop gays and lesbians from gaining legal equality.
And social conservatives know something else — any material crack in the armor is the end game, in terms of their ability to create a culture change. After same-sex marriage is established, people calm down and same-sex marriage is relatively quickly accepted by the bulk of the population.
We’ve seen that happen in Massachusetts, and we’ve seen that happen in Canada. We’ll see it over and over again during the next 10-30 years as gays and lesbians make gains from state to state.
Social conservatives know that, too.
Jim Dobson spoke about the problem faced by social conservatives in stark terms a few weeks ago: “If the battle to protect marriage takes even five more years, liberal judges and activists will have destroyed this 5,000-year-old institution, which was designed by the Creator, Himself. Even now, they are close to achieving that coveted objective.” — James Dobson, CNN Commentary, June 28, 2006
While Dobson is beating the “activist judge” drum, he’s talking about culture change between the lines. He knows as well as I do that if same-sex marriage gets established in four or five states, the game is up, because social conservatives will not have time to establish culture change.
“Activist judges” might accelerate the process, which is of concern to social conservatives, but the real problem is the legislatures, and they know it.
In my view, the game is up already, because the kind of culture change that social conservatives need is not going to happen in any event. Nobody is going back into the closet, and so long as gays and lesbians are out in the open, nothing is going to stop people from discovering that gay and lesbian friends are deserving of equal treatment. But social conservatives are intrangient on this issue, some out of fear and some out of religious conviction, and they are grabbing the only straw that is within grasp.
posted by Bobby on
Activist judges are a real threat, Tom. They could end the death penalty, end the second amendment, they have in fact strenghtened eminent domain to the point where your city can confiscate your house to sell it to someone else.
Gays are all in love with judges because they seem to be gay friendly now. God forbid they turn homophobic and undo decades of gay rights.
posted by Northeast Libertarian on
The problem with social conservatives is that their “activist judge” rhetoric is bullshit, and they know it. Judges who enforce the primacy of the Constitution against the social conservatives’ unconstitutional laws — be they efforts to discriminate against gays or efforts to establish a state religion — are just doing their jobs.
There’s no threat to the Second amendment or any other part of the Constitution, since the laws the judges overturn go directly against the Constitution itself. This is why the “activist judge” canard is such bullshit — the threat to the Constitution comes not from the judges who uphold and defend it, but from the conservatives who declare that their unconstitutional laws should stand and judges should ignore the constitution in favor of simple majoritarianism.
posted by Hershel on
Our rethoric is not bullshit. We’re dealing with a culture war against the status quo, with people that want America to be more like Europe. The things liberals can’t win in the legislatures they’re trying to win in the courts.
What if tomorrow a judge decides that animals have rights and eating them is murder? What if we end up like Australia? Where a priest can’t condemn radical islam without facing hate speech charges and the possibility of a criminal conviction?
This is beyond same-sex marriage, there’s a lot of nutcakes on our courts. Nutcakes who free admitted pedophiles while convicting people who shoot in self-defense.
We call them “activist judges” because they have an agenda, like the usual activists, and they’ll do whatever they can to protect that agenda. Even the SCOTUS has them, I was shocked when they ruled in favor of affirmative action. Shocked!
posted by Mark on
If civil unions are essentially the same thing as marriage, what’s the big deal over what they are called? If my employer wants to call my paycheck “dog poop” that’s fine with me as long as it does not bounce.
posted by North Dallas Thirty on
So presumably, you’d have no objection to a group collecting signatures and successfully passing an amendment in Massachusetts to, say, strip conservatives and Jews of the right to vote?
It is always the right of the voters to raise an amendment to do whatever they wish. That is different than whether or not one votes for it.
And, as for Tom’s statement, I only wish gay activists believed their own rhetoric. For example:
After same-sex marriage is established, people calm down and same-sex marriage is relatively quickly accepted by the bulk of the population.
We’ve seen that happen in Massachusetts, and we’ve seen that happen in Canada.
Mhm. And that was why they had to use maneuvers to prevent the Massachusetts Legislature from actually allowing a vote on the matter — mainly, I’m sure, because not even the lunatic Massachusetts Supreme Court could find a viable reason to prevent people from amending their own constitution.
Until gays actually start appealing to voters and stop trying to ramrod court cases, the “activist judge” mantra has relevance and teeth.
If waiting will solve the problem, why not wait? Dobson and his ilk are openly baiting the gay left into doing their work for them.
posted by Paul on
I hope these rulings aren’t a sign of another backlash. Perhaps we’re just getting all of this stuff out of the way before things change after the midterm elections!
Paul.
pdcook.blogspot.com
posted by Randy R. on
The vote in Mass was not denied, but merely delayed until November.
But back to Rauch’s post — That contains lots of good sense. The basic problem here is that if a citizen has a right, then he has a right — it should NOT come up for a vote to the public. Rights are guaranteed by the US Constitution, and if a panel of judges agree that gays have a right to marry (as I believe) then there is no problem with them declaring that. It isn’t a matter of whether they are called activist or not; rather, it’s a simply matter of reading the constitution in a rather broad manner. I understand many people disagree with that, however.
But the bigger point, unfortunatley, is that we need to make the rights stick. In other words, we can win in the courts, but long term, we need to win the hearts and minds of citizens. So the best way to do that is to convince everyone that we have a right to marry.
Interracial marriage is a good study. By 1940, virtually every state in the union had bans on interracial marriage. California courts were the first to strike them down (they were the activist judges back then!). But although many courts struck down the laws, so did many legistlatures repeal those laws. By the time the Supreme Court took the issue in 1967, only a few states had those laws. Even then, 80% of Americans opposed interracial marriage after the Supreme Court’s ruling, but there was little widespread hostility to it. I don’t recall any attempts to amend any state constitutions to reintroduce the bans.
Today, it’s a ho-hum issue. But it took at least 30 or so years to go from no interracial marriage anywhere to fully allowing it everywhere and no one having aproblem with it.
It may take as long with gay marriage…..
posted by Northeast Libertarian on
We’re dealing with a culture war against the status quo, with people that want America to be more like Europe.
Who is this “we” you’re talking about?
And if these mythical bogeymen want to reshape America into a clone of Europe, how are they “status quo?”
Do right-wingers even read their own writings?!? Egads.
prevent the Massachusetts Legislature from actually allowing a vote on the matter
I don’t really care either way about the “special privileges” of marriage — the entire “institution” as a legal concept discriminates not only against gays, but singles as well. The entire thing should be privatized.
That said, there’s something manifestly pathetic about the right-wing gay hacks scrambling to justify the moves of their own party (which hates them) to ensure that said hatred is enshrined in some sort of popular vote — and holding themselves up as acolytes of democracy while doing so.
It only goes to show that, as usual, the old parties don’t have a clue about what real human rights are about.
posted by Northeast Libertarian on
It is always the right of the voters to raise an amendment to do whatever they wish.
You didn’t answer my question, and I don’t expect you to, because you’re dishonest.
Would you defend a democratically-passed state constitutional amendment stripping Jews and conservatives of the right to vote? Let the people decide and all that, right? And you cannot have activist judges stepping in to overrule the people’s will. . . so if such an amendment was passed, you’d accept it and celebrate it as a victory of democracy, right?
Of course you wouldn’t. And that undermines your whole tawdry argument. Quite simply, conservatives hate the Constitution — but don’t feel bad, your liberal “opponents” aren’t too fond of it either.
posted by Bobby on
Look libertarian, how do you think I feel when voters choose higher taxes or a ban on tobaco? Democracy works that way, it doesn’t satisfy everyone. The important thing is not to let a minority of people have more rights than the majority.
Democracy means that the people have the right to vote on an amendment keeping “God” in the pledge of allegiance, and atheists, the minority, simply have to accept that they don’t live in North Korea. They’re not asked or expected to pray or even say the pledge, but they are requiered to leave the rest of us alone.
Minorities nowadays act like the world owes them something. That has to stop.
“Who is this “we” you’re talking about?”
—I was speaking on behalf of conservatives and traditionalists.
“And if these mythical bogeymen want to reshape America into a clone of Europe, how are they “status quo?””
—Because it’s a minority of people that want to change America. Organizations like the ACLU get most of their funding from billionares like George Soros, their actual memberships are very low. Anthony Romero, current ACLU president, has gone on the record to say that hate speech is not protected under the first amendment. Romero has also demanded gag orders on other ACLU members, including harassment of one ACLU lawyer who defended the minutemen’s right to assembly and free speech on the border.
posted by Randy R. on
Certain forms of hate speech are indeed not protected by the 1st Amendment. As every first year law student learns, the 1st Amendment does NOT guarantee the right to say anything. You cannot incite a riot, or yell ‘fire’ in a crowded theater if there is no fire, and so on.
If the ‘hate speech’ involves the advocating of any sort of violence, or could reasonably lead to violence, then it isn’t protected speech. This is well setteled law and there is actually no dispute about it.
The only dispute is what exactly constitutes speech that advocates or leads to violence. On that, reasonable minds can differ.
posted by Northeast Libertarian on
I’ve figured out why the country is in such a sorry state under the Republicans today. . . apparently, their acolytes cannot distinguish between Constitutional rights and tax increases. The former, of course, is illegal no matter how many people vote in a referendum for it. A judge who throws out such an unconstitutional law, whether it’s a supermajority-favored anti-gay marriage law or a super-majority-favored imprison-all-conservatives-immediately law, is not “activist.” (S)he is simply doing his/her job.
posted by North Dallas Thirty on
You didn’t answer my question, and I don’t expect you to, because you’re dishonest.
Actually, I did; you just chose not to acknowledge it.
It is always the right of the voters to raise an amendment to do whatever they wish. That is different than whether or not one votes for it.
The Constitution clearly states that the voters have the right to raise an amendment on whatever topic they like, and if it is approved by the supermajority of the electorate, it becomes fundamental law.
Would you defend a democratically-passed state constitutional amendment stripping Jews and conservatives of the right to vote? Let the people decide and all that, right? And you cannot have activist judges stepping in to overrule the people’s will. . . so if such an amendment was passed, you’d accept it and celebrate it as a victory of democracy, right?
Yes I would. If we try to prevent the people from voting because we don’t like the choice they’re going to make, we have entirely perverted the basis of the Constitution and taken it away from its fundamental principles. Sometimes, that means accepting things that are inconvenient for you in order to preserve greater principles.
Isn’t it interesting that a “libertarian” such as yourself, NL, is so completely terrified of voters and their will that you advocate disenfranchisement? What method would you use to stop legislators and voters — maybe lynch mobs? How do you justify imposing your moral will on others to the point where you advocate bypassing and ignoring the clear right of the voters to amend their Constitution?