One commenter on my previous post shares Dale Carpenter's cautious pessimism about our chances of winning the Prop. 8 case in the Supreme Court. The commenter is resigned to us having to live through our own Plessy v. Ferguson.
Actually, we've already done that. Losing this case wouldn't be our Plessy, it would be our second Bowers v. Hardwick. Like this case, we were represented in Bowers by some of the finest legal minds of the time, including Harvard's Lawrence Tribe. It was viewed as a perfect test case of the constitutional right to privacy. Police actually entered the bedroom of a same-sex couple and, following a universal policy by law enforcement to simply ignore prosecutions for private, consensual acts of sodomy between adults, didn't file charges. What use, then, was the law? How many criminal laws are virtually never enforced when the police actually observe the offense being committed? The case had everything going for it.
And we lost.
The Bowers opinion, in Justice Kennedy's words overturning it seventeen years later, "was not correct when it was decided, and it is not correct today."
That is the thing about thinking based on imperfect assumptions about small groups of people: Even a Supreme Court opinion doesn't need to be correct in its reasoning, it just needs to be convincing enough to pass muster at the time. The constitutional promise of equality is just that: a promise. Nothing more. Like everything else in a political world, it is subject to a psychological logic that has nothing to do with logic itself.
This has always been the concern of same-sex marriage supporters -- not that we are wrong, but that the court doesn't need to get it right the first time. The illogic of prejudice is always just enough to scrape by on; after all, the only people being harmed are a political minority. It is the majority that counts, even if the majority happens to be wrong.
My faith in American democracy is in the ability to get it right in the long term. It took time, but we saw the mistake of Plessy, and of Bowers, and ultimately aligned our law with the reason that was always, if elusively there. If we lose Perry, we'll eventually be able to correct that, too. It may not be in our generation, but the fact that we tried, and gave a court of law the ability to do the right thing will be our gift to the future.
4 Comments for “Deja Vu”
posted by David in Houston on
I wish I could be more optimistic, but the deck is stacked against us right now. We’ve got the Supreme Court full of conservative Christian senior citizens. The worst possible demographic to deal with progressive issues such a marriage equality. We already know one of them (Scalia) is blatantly homophobic. If they were all 30 or 40 year olds, I wouldn’t hesitate sending this to them.
posted by Rodney on
Third, I say. I count Doe v. Commonwealth of Virginia [425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976)], in which the court allowed Virginia’s sodomy law to stand. I know the Supremes didn’t rule in that case, they issued a summary decision. But it shocked me to hear that adult consensual sex wasn’t protected by the Constitution, and I decided I didn’t want that Constitution.
posted by DragonScorpion on
~âThis has always been the concern of same-sex marriage supporters — not that we are wrong, but that the court doesn’t need to get it right the first time. The illogic of prejudice is always just enough to scrape by on; after all, the only people being harmed are a political minority. It is the majority that counts, even if the majority happens to be wrong.â ~ David Link
Indeed. All the more reason why things like, mobs of voters getting together to pass laws to bar their neighbors from being protected by the same constitutional/civil rights that they are (and for no justifiable reason other than personal discomfort) must be thoroughly curtailed.
posted by Chairm on
As a matter of constitutional jurisprudence, the pro-SSM decision by the California Supreme Court was poorly reasoned and wrongly concluded.
It was corrected.
But I am guessing that those who support SSM feel differently.
I think it is absurd to suggest that the Lawrence case is an example of getting it right, in terms of the constitutional question.
Court make errors — even when you feel those errors produce the results that should have been reached through the legislative process.