Another great piece by Jack Balkin, this time laying out six possible scenarios for same-sex marriage in light of the district court decisions from Massachusetts.
Again, Balkin is primarily concerned with the political implications of constitutional decisions, and again he is absolutely on target. Lesbians and gay men don't, unfortunately, have the luxury of viewing their constitutional right to equality simply as a guarantee. It comes, if it comes, with political strings attached, and those strings are directly controlled by archaic but still potent misunderstandings about what homosexuality is.
In the end, Balkin makes lemonade out of the lemon of a potential U.S. Supreme Court decision upholding Section 3 of DOMA, the one that prohibits the federal government from giving any sort of recognition to same-sex couples lawfully married in their own state of residence. A decision upholding Section 3 would take us out of the courts and put the action back where pure politics would suggest it ought to be - the states. He posits that in perhaps a decade we might be able to go from six marriage-recognizing states to twenty-six.
If that effort only involved getting legislatures to enact same-sex marriage (or civil unions; I'd be happy with civil unions as a political compromise), he might have a point. But this is where Balkin uncharacteristically misses an obvious and extremely important point. The legacy left to us by Karl Rove is a national landscape where voters actually changed their state constitutions - not just their statutes - to prohibit same-sex marriage. A protection for the minority against the majority was enlisted as a protection of the majority against that minority. Prejudice carried the day as a political tool to win short-term advantages. Generations of misunderstanding and ignorance were leveraged and elections were won. Those misunderstandings, that ignorance, have now been enshrined in state constitutions across the land as principles by which those states will govern themselves.
Certainly in some states like California, we can return the equality our state constitution guaranteed prior to Prop. 8 with a majority vote - though it won't come easy. Other states are not so fortunate. For them, the political battles for same-sex marriage will be uphill and in the snow.
It's easy to talk about the virtue of political action. But if there ever was a situation where the ordinary constitutional rules have been disregarded or turned utterly upside-down, where constitutional protections have been torn up and thrown away, same-sex marriage is that case.
In that context, then, the political reaction to a federal court victory is something I fear a bit less than Balkin and others. At some point we need to stand up and say that the principles and plain words in our constitution actually mean something. Damage has been done to the ideals we jointly established for our democratic republic. The equal protection clause was put there for a reason. The equal protection clause was put there for this reason. Heterosexuals can minimize that in deference to politics. But sometimes -- now in particular -- lesbians and gay men can't.
24 Comments for “Balkin’s Small Error”
posted by BobN on
The legacy left to us by Karl Rove is a national landscape where voters actually changed their state constitutions – not just their statutes – to prohibit same-sex marriage
and civil unions.
posted by Grant on
Excellent point re: state constitutional bans. California’s is unusual in the relative ease with which it can be amended by simple majority vote of the people. In other states, I predict those bans will be in their respective constitutions for a very long time to come, barring federal court intervention.
posted by Jorge on
…A protection for the minority against the majority was enlisted as a protection of the majority against that minority…
That’s federalism: power to the states. Big Fed isn’t everywhere, there’s big Jersey and big Massa, too.
My head’s in the sand on this one. I do favor the state-by-state strategy, but what I don’t want to be lost is we should keep fighting, keep making ourselves and our voices heard, and it doesn’t have to be just about marriage. Great things are going to happen in the next ten years because we’re still going strong.
posted by Debrah on
Something for SSM proponents.
How the GOP is Saving Gay Marriage
posted by Jorge on
“But more than that, it’s a gauge of how far from the mainstream modern conservative jurists have drifted.”
The only argument in that article that made even remote sense to me. Citing the ideology and ruling of old guard Republican appointees does not advance the argument of the title.
Then again, the Federalists did take over the country through the judiciary AFTER the 1800 election. Hmm, all right, I take that back. It’s a good article.
posted by John Howard on
What is needed is a substantial difference in the rights given by a civil union, because most state constitutional amendments only prohibit cu’s that are substantially similar or give the same rights. I think the right to combine genes and create offspring should be that right, of course, as the conception rights of gay couples are up in the air right now, and shouldn’t be equated to a married man and woman.
posted by John Howard on
I’m not trying to hijack this post, by the way, by bringing up the specific right I have in mind that should be left out of Civil Unions. We can leave the difference unspecified for now and simply discuss the concept of pulling a right out of marriage in order to make CU’s passable in most of those states with amendments. I think Texas is the only one that forbids any recognition of any kind, no matter how defined, the rest only prohibit identical rights.
And we can discuss whether conception rights is a substantial difference too, without having to get into whether same-sex couples should have conception rights. Or we can discuss the whole shebang. But please no blanket dismissal of my point about how to pass CU’s because you don’t like my point about conception rights for whatever reason.
posted by Jimmy on
It seems to me that when you place a federal ban on cloning or other types of genetic engineering (like this chimera that you are so worked up about, John, and probably making a couple of bucks off of, for lobbying purposes of course) those bans apply to every body, regardless of the make-up of the married couple.
So, I have only to conclude that your organized effort to deny marriage rights to gays and lesbians is really motivated by homophobia.
Just calling a spade a spade.
posted by John Howard on
Jimmy, it’s based on the epigenetic imprinting of eggs and sperm cells, which are complementary. It means that ethically, we all have a natural right to procreate with someone of the other sex, and only with someone of the other sex. Procreating with someone of the same sex would require genetically modified artificial gametes, or else it would certainly result in fatal birth defects. Prohibiting genetic modification and requiring the use of unmodified gametes means that same-sex couples would be prohibited from the only way they could safely procreate, in theory. But that is OK because there is no right to procreate with someone of the same sex. However, declaring in law that same-sex couples have equal rights and equal marriage rights at that, does indeed declare a right to procreate with someone of the same sex, which would make prohibiting genetic modification unconstitutional, since it would be a substantial legal obstacle preventing same-sex couples from attaining their equal rights. Either that, or it would mean that marriage didn’t protect the couple’s right to combine their own genes anymore, and straight couples could be prohibited from using their own genes if a state authorized doctor decides they should use modified or replacement gametes instead. It depends on which case reaches the supreme court first, if we go that route. But we won’t go that route, we will realize that declaring equal conception rights for same-sex couples is bad public policy and unprecedented and simply false: there is no right to procreate with someone of the same sex.
posted by John Howard on
And who do you imagine would pay me to make that argument? The Catholic Church? Nation of Islam? Mother Nature? Who stands to gain financially from banning conception using genetic modification? I have heard of people being paid to patrol the internet and make pro-gay rights claims, basically staffers on the HRC and probably some biotech and reproductive industry hacks, but I haven’t gotten any compensation from anyone to make my argument.
posted by Jimmy on
“which would make prohibiting genetic modification unconstitutional”
Not when it’s applied to all married couples. Let’s say an infertile, opposite sex couple doesn’t want “outside” DNA coming into the mix, so they opt to clone. Federal prohibits this regardless of who is in the marriage, period.
It is fertility and research institutions that must be federally regulated, not legally married people. That is where your energies should be focused.
posted by Jimmy on
“And who do you imagine would pay me to make that argument?”
Other bigots.
posted by Jorge on
Procreating with someone of the same sex would require genetically modified artificial gametes, or else it would certainly result in fatal birth defects.
(Hey, at least it ain’t a bunch of jocks making sick jokes about sodomy.)
posted by John Howard on
A blanket ban on genetic engineering children would apply to everyone, married or not, but it would effect same-sex couples in a totally different way than it would effect male-female couples. It would not prohibit any male-female couples from combining their own genes to create offspring, but it would prohibit all same-sex couples from combining their own genes to create offspring. Every person would suddenly have one sex with which they could legally procreate, instead of being allowed to attempt to procreate with someone of the same sex like we are now.
That’s where to start, with the blanket ban. It’d only have a legal effect on same-sex couples, and it would be a public legal effect, where they went from being allowed and having equal rights, to not being allowed and not having equal rights. But that concession would be the basis on which to negotiate a compromise for equal protections for Civil Unions that don’t protect the right to conceive children together.
posted by Jimmy on
“It’d only have a legal effect on same-sex couples…”
No, it would have legal effect on any institution prepared to attempt to provide the service. Get it right. I’m unconvinced that there is a specter of back-ally genetic engineering that needs to be exorcized.
There are way easier, and cheaper, ways to make a baby, please!
Is there any evidence that there are same-sex couples, in this nation, biting at the bit to accomplish what you seems to keep you up at night, John? If we are to continue to have a rational conversation about this non-issue, we need empirical evidence. Irrational fear doesn’t cut it.
posted by John Howard on
There are hundreds of Transhumanist groups, postgenderist philosophers, and lots of gay people who would love to have a genetically-related child with their same-sex partner. I’m sure someone on this blog will be happy to step forward and say they indeed claim a right to conceive with someone of the same sex, and would like to do it to have children if it they think it is safe enough. The claim for equal rights and equal marriage is itself a claim for equal conception rights, or else it is an attack on natural conception rights.
The legal effect of prohibiting human genetic engineering on the labs and clinics would mean they could only combine genes of a man and a woman. People would no longer be allowed to try to conceive with someone of the same sex (currently we are allowed, no law prevents anyone from trying).
posted by Jimmy on
“currently we are allowed, no law prevents anyone from trying”
Well, we know you don’t have to be married to make a baby, so your efforts, once again, should be directed at genetic engineers, not married people. YOU get more incredulous with every post.
posted by John Howard on
All marriages should continue to affirm the right of the spouses to create offspring. You need to deal with the point I made that people should only have a right to create offspring with someone of the other sex.
posted by Jimmy on
“You need to deal with the point I made that people should only have a right to create offspring with someone of the other sex.”
I don’t have to deal with jack sh*t, because whether I ever marry in the future, when it becomes legal for me to do so, or remain single for the rest of my life, I have zero interest in procreation or becoming a parent. Whatever laws enacted to bar the type of reproduction that you are so concerned about will apply to ALL married couples.
This is so easy.
posted by John Howard on
Yes, laws against using modified genes would apply to everyone, married or single, but they would only publicly prohibit same-sex couples from creating offspring. If any same-sex couples were married or declared to have equal rights to married couples, then it would strip any protection of the right to procreate from marriage and make it possible to force all couples to use substitute gametes.
The point I’m making is people should only have a right to procreate with someone of the other sex, which means same-sex couples wouldn’t have equal rights, and the right they’d be missing is the sine qua non right of every marriage since the beginning of time, the right to conceive offspring together.
Merely pointing out what you point out is not dealing with the objection I raise, it is just punting. Sure, the laws would apply to all couples. OK, now deal with the fact that only male-female couples would be allowed to have children after that law.
posted by Jimmy on
“OK, now deal with the fact that only male-female couples would be allowed to have (read: CREATE) children after that law.”
I’m good with that. There – dealt with.
Only male and females gametes can be used to create children. Let’s get the language right. “Have” and “Create” are vastly different phenomena.
posted by Jimmy on
“If any same-sex couples were married or declared to have equal rights to married couples, then it would strip any protection of the right to procreate from marriage and make it possible to force all couples to use substitute gametes.”
Your level of paranoia is startling.
posted by John Howard on
No I don’t think you have dealt with that. When we say that people can only create children with someone of the other sex, that makes the rights very different between both-sex and same-sex couples. Only the both sexed couple should have the right to procreate together, and same-sex couples would not be allowed to procreate together. You are fine with that, but many other activists I talk to tell me to get lost and let them create a child together, because they want equal rights in every area.
And I’m not saying that all people would suddenly be forced to use substitute gametes, at first it would only be a few people and they would only be pressured or coerced, but not forced. But eventually, if things progress to where the Transhumanists want them to, then society will start to say it is unethical for a person with a genetic disease to insist on using his own genes, it is unethical to let breeder marriages breed without screening them and approving them or forcing them to use contraception and substitute gametes. That’s a poosibility down the road if we strip conceptino rights from marriage and say that a man and woman have the same rights as same-sex couples. To avoid that possibility, I think we need to affirm that all marriages continue to affirm the right of the couple to use their own genes to have children.
posted by John Howard on
I should add that people are already feeling pressured into using substitute gametes, which they don’t actually have a right to do, but yet they are being made to feel they only have a right to do that, that it would be wrong for them to use their own gametes, usually because they feel their own genes are substandard or defective. I think we need to affirm that everyone has a right to use their own genes, and the only way to do that is by prohibiting any alternative (besides avoiding having children and choosing to adopt or help raise someone else’s children.)