The U.S. Supreme Court turned down an appeal by a gay California gay couple who wanted the court to mandate that California (and presumably every other state) permit them to wed. It is the first time the issue of same-sex marriage has been offered to the high court.
If the Supremes had taken the case, it could have had only two possible outcomes. The court definitively rules against a constitutional right to marriage (which would have overwhelmingly been the likely outcome, and could have had negative effects in other non-marital areas), or the court rules in favor (highly unlikely, but absolutely certain to trigger passage of the federal marriage amendment).
The deeply misguided "judicial strategy" (as opposed to working for enough electoral support to pass same-sex marriage legislatively) is bad enough on the state level, where it has succeeded in ensuring passage of numerous state-constitutional amendments banning gay marriage for generations to come. Why on earth would anyone pursue it at the federal level?
12 Comments for “Bullet Dodged.”
posted by Northeast Libertarian on
Because it illustrates the statist ridiculousness of the entire situation.
I support marriage equality. From a philosophical and ideological perspective, government should have no role within the administration of individual relationships.
From a practical and self-interested political perspective, though, I also recognize that a “backlash” leading to a passed FMA at the federal law would finally drive a spike through the heart of the apologists for the Republicrat agenda.
Here is America — a country of tolerance, diversity, etc. — with a plethora of anti-gay federal laws (which also ban the sainted “civil unions” which you lobby for, Stephen) which has fallen behind such well-known bastions of liberal values as Slovenia, Brazil, Taiwan and Andorra on gay issues.
A fully-passed FMA wouldn’t change the *practical* situation on the ground at all for any gay couple — in fact, all it would do is underscore the hypocrisy of the Republicrats’ approach to gay marriage, which is to promptly change the subject as soon as possible or try and pass “marriage lite” under another name.
Gay rights are now prominent in countries which were far more conservative 20 years ago than America on gay issues — like Britain — because their gay activists engaged the leadership, ran campaigns which were independent of political parties (rather than running gay activism as part of the Democrats), and because their standard-bearers were willing to honestly and openly debate the underlying concerns.
Meanwhile, all the Republicrats have to offer in this debate is Barney “gay marriage is a diversion” Frank and Mark “it wasn’t technically illegal” Foley. And supporting alternatives to the Republicrat agenda are rejected by the gay establishment without even a snippet of analysis — despite the fact that leaders from the Libertarian and Green Parties including Michael Badnarik, Bruce Guthrie, and David Cobb have been the leading pro-gay thinkers (and STRAIGHT ones to boot) who refuse to run away from gay marriage equality.
The people taking this case to the SCOTUS are doing so because they are frustrated, rightly, with the failed leadership of the Republicrat parties and the conservative/liberal duopoly on debating gay issues.
The grassroots are willing to engage and are willing to debate the issues which *really* matter to gay people. It’s time that “gay leaders” either joined them in this fight without ambiguity and conflicting loyalties, or stepped aside and let a new generation of gay leadership right the badly listing fleet named “national gay activist groups.”
posted by moreon on
Northeast Libertarian,
You wrote, “A fully-passed FMA wouldn’t change the *practical* situation on the ground at all for any gay couple — in fact, all it would do is underscore the hypocrisy of the Republicrats’ approach to gay marriage, which is to promptly change the subject as soon as possible or try and pass “marriage lite” under another name.”
Except that it would. Massachusettes already has same-sex marriage, the FMA would invalidate that (and possibily civil unions and even domestic partnerships in other states). And the larger point is, once a Constitutional Amendment gets passed, it becomes *very* difficult to overturn it. We would need 2/3 of each branch of Congress, and 3/4 of the States, to actually *want* same-sex marriage legalized in order to overturn the amendment. Summoning the political force necessary to achieve that isn’t going to be possible for generations. Without the FMA, we can win over one state at a time on the issue of same-sex marriage.
posted by jomicur on
The talk of a “deeply misguided” judicial strategy on this board always leaves me scratching my head. Unless you believe the 14th Amendment is deeply misguided, attempts to have it enforced on behalf of gay citizens can hardly be so, either. At the risk of being obvious, even when a “legislative strategy” achieves equal rights for gays and gay couples, as it did in California, we can always count on the right wing to shoot it down, whether with a veto (as in CA), a judicial challenge (as in Cleveland Heights and any number of other venues–or is a “judicial strategy” only misguided when the left wing tries it?), a ballot initiative (as in more states than I can remember), or whatever other damnfool rubbish they can come up with. The right will sabotage gay equality whenever and however they can, and regardless of the strategy used to achieve it, period.
I think the push for marriage rights ahead of simpler, easier-to-achieve goals like non-discrimination protections, IS misguided, if only because it’s so premature, and has distracted our community in any number of ways. But the right will oppose us always, and any way they can. If we have a goal in sight, using every strategy available to us only makes sense.
posted by moreon on
jomicur,
You wrote, “The talk of a ‘deeply misguided’ judicial strategy on this board always leaves me scratching my head. Unless you believe the 14th Amendment is deeply misguided, attempts to have it enforced on behalf of gay citizens can hardly be so, either.”
It’s not wrong to want the 14th amendment to be applied to gay citizens. But as a strategy for attaining marriage equality, it is misguided. There are more considerations than just legal/Constitutional ones. There are political considerations that need to be taken into account. If the Supreme Court declared that marriage had to be open to same-sex couples as well as opposite-sex couples, it would virtually ensure the passage of the FMA, which would make the decision moot. We’d be much, much, much worse off than before.
It’s true that some forces on the right want the FMA passed anyway, regardless of how likely they view a decision from the Supreme Court that brings forth same-sex marriage. But they don’t currently have the political support necessary to get the FMA passed.
One of the chief arguments being used to oppose the FMA is not that same-sex marriage is a good thing, but rather that the FMA is just completely unnecessary. We would lose the ability to use that argument if the Supreme Court decided to step into the fray and make a decision favorable to same-sex marriage proponents. Then, the only argument that could be made against the FMA would be that same-sex marriage is a good thing to have. And guess what? Most people don’t agree with that, so we’d get screwed rather handily.
You also wrote, “if we have a goal in sight, using every strategy available to us only makes sense.”
That’s simply not true. If a strategy has a great potential of backfiring and making us worse off than before, it would be better to avoid that strategy. We don’t want Pyrrhic victories. We want real ones.
posted by ETJB on
Actually the religious right asked the USSC to address gay marriage in Mass., so the Cali case is not really the same. Also the court already addressed the issue in the 1970’s.
One thing you have to understand is that when it comes to the 14th Amendment equal protection clause, the court has created a de facto legal ‘video game’, if you will or different levels of protection.
The first, and easiest level in the game is ‘rational review.’ The second, and slightly harder level in the game is ‘intermediate’ or ‘heighten’ review. The final level is very hard; strict review or scrutiny.
Race/Ethnicty is strict scrutiny. Gender is intermediate scrutiny and gays are along with everything else down in rational review.
The different ‘levels’ impact how good of a reason a state must give to discriminate against a class of its citizens, and how likley the court is willing to buck public opinion.
posted by Northeast Libertarian on
Massachusettes already has same-sex marriage, the FMA would invalidate that
What’s the utility of Massachusetts same-sex marriage — beyond the symbolic? Not much.
A Massachusetts marriage cannot be provided to out-of-state couples (other than those from Massachusetts). It’s not recognized by federal authorities, so in criminal trials at a federal level there’s no testimony privilege, or immigration, or inheritance pass-on, etc., etc., etc.
MA marriage is a perfect fig leaf for statism — they can claim we have “equality” while preserving their big government handouts for themselves and permitting gays nothing at all.
posted by Northeast Libertarian on
Race/Ethnicty is strict scrutiny. Gender is intermediate scrutiny and gays are along with everything else down in rational review.
Typical Republicratism. All people are equal — some are just more equal than others.
Where does the constitution say that some people’s rights may NEVER be assaulted, but others can have theirs revoked with a “rational basis” test?
posted by jomicur on
Why do you assume the FMA would pass? Sure, a Republican Congress might pass it (though they’ve tried and failed before). But 37 of the states?! Here in PA we have our own little DOMA; but to pass a federal constitutional amendment requires 3/4 of each house of the legislature–which simply couldn’t happen. Unless you’ve done a study of the likelihood of the FMA passing in each of the 50 states and are certain it would pass 37, your argument is unpersuasive. On top of that, I have a definite recollection that people were making the same argument about the TX sodomy case–“God gosh, if they rule against us, sodomy laws will be more firmly entrenched than ever!”
In any case, you don’t address my main point, which is that the right wing will attempt to reverse ANY gains we make, regardless of the strategy we sue to make them. Everything you argue about a supposedly flawed judicial strategy–it might backfire and make things worse–can be argued with equal cogency about a legislative strategy. So should we sit and do nothing, then, and just hope straight America will get around to treating us fairly someday? That sounds like HRC talking.
ANY strategy MIGHT backfire. So the logical conclusion would be to use none of them, right?
posted by Richard J. Rosendall on
NL’s typical monlithic dismissiveness should not distract anyone from recognizing that, as “moreon” says, going the court route at this point is simply bad strategy. If Steve is saying that going to the courts for equal marriage rights is forever wrong, then I don’t agree. But going to the courts at this point (other than a case that is strictly within one state, as opposed to cases seeking to force one state to recognize SSMs from another state) is incredibly premature. We need time for single-state experiments to work, and for the national polity to continue learning and growing on this issue. Pushing a nationwide court case too soon amounts to saying that you don’t care about reality. My own jurisdiction, the District of Columbia, has made substantial advances in granting legal protections to same-sex couples, and I have been involved in those efforts. Given DC’s special constitutional relationship with Congress, pushing full civil marriage now would be entirely counterproductive because we would be stomped on by Congress and would end up worse off than before. How in the world is that liberating, NL? It is easy to snipe from the sidelines, but some of us have worked too hard for the gains we have made to throw them all away out of frustration that our progress isn’t fast enough. Like it or not, we are in a marathon and not a sprint. This is a long-term fight. And pushing a nationwide solution now would likely push our ultimate victory on SSM farther into the future, because (as Steve correctly says) it would give impetus to the federal constitutional amendment, which would be extremely difficult to repeal.
posted by Northeast Libertarian on
Given DC’s special constitutional relationship with Congress, pushing full civil marriage now would be entirely counterproductive because we would be stomped on by Congress and would end up worse off than before. How in the world is that liberating, NL?
It liberates gay activists in the Republicratic and Demopublican parties from the illusion that their parties are “really on our side,” for one thing.
It is easy to snipe from the sidelines, but some of us have worked too hard for the gains we have made to throw them all away out of frustration
The pretentions from the Washington insiders such as yourself that only you are working, and that those of us who aren’t inside the beltway are “sniping from the sidelines,” are pretty amusing.
In reality, the Washington gay (Democratic Party) establishment fought tooth and nail against a gay marriage agenda, and was dragged kicking and screaming by outside-the-beltway groups like GLAD in New England, and couples all across the country.
GLAD launched the landmark cases in Vermont and Massachusetts which made what HRC and Republicrat apologists like yourself claimed was “impossible.” Why did they do this?
Because if everyone listened to the inside-the-beltway schtick, blacks would still be riding in a different part of the bus (perhaps the middle, due to a “compromise”) and “sodomy” would still be illegal. Fortunately, the grass roots are picking up and running with things — and solidly, wisely ignoring the pronouncements of the beltway in-crowd.
posted by Northeast Libertarian on
And the news confirms that, once again, the Washington insiders are wrong about “treading lightly” and “changing the subject” when it comes to grassroots efforts to deliver marriage equality:
http://www.advocate.com/news_detail_ektid37517.asp
Support for same-sex marriage bans is weak in three of the eight states that will vote on them this November, and in one?Colorado?a competing measure to establish domestic partnerships for same-sex couples is currently backed by a majority of voters. The growing sense that key victories will be had this Election Day is in stark contrast to 2004, when constitutional bans on same-sex marriage were approved in 13 states, USA Today reports.
. . . snip. . .
Indeed, defeat of even one of the proposed marriage bans would be a major triumph, since all 19 state measures that have been voted on to date were overwhelmingly approved, with support averaging 70 percent.
This year, however, opposition to such a measure in Arizona is currently at 51 percent, with only 38 percent of voters supporting it, according to a recent poll, while the proposed marriage ban in South Dakota is opposed by 49 percent of voters, with 41 percent in support. In Colorado, which has ballot measures both to ban same-sex marriage and to create domestic partnerships, a recent poll showed that only 52 percent of voters are in favor of the former, but that 58 percent favored the latter.
Thanks, of course, to the grassroots. While the inside-the-Beltway hand-wringers are busy fretting over the fates of a few dozen of their politically-connected closeted Republican politico friends, the grassroots are driving change and delivering victories for the average gay man and woman in this country.
posted by ETJB on
The USSC has pretty much said all its wants to say about gay marriage way back in the 1970’s.
The court seems to hear a gay rights case about once every five to ten years and never steps far beyond public opinion. It was a good idea to use the court to trash the sodomy laws, but the court is not going to rule in favor of gay marriage until public opinion is already strongly behind it and even then they ignore it.