In the Aug. 5 issue of The New Republic, Richard Posner, a judge of the U.S. Court of Appeals for the Seventh Circuit, writes (by way of reviewing books on the legal fight for same-sex marriage) that it’s “The Culture, Not the Courts” that’s the prime driver of marriage equality (now posted online with a revised title). Here are a few excerpts:
If there was a backlash to Lawrence [finding sodomy laws unconstitutional] it was slight, because Lawrence wasn’t that big of a deal. For by 2003, there was virtually no enforcement of laws against homosexual sex….
All in all, the judicial role in the rise of homosexual marriage seems to have been quite modest. Probably the courts have done little either to accelerate the trend in acceptance of such marriage or, through backlash, to retard the trend. In retrospect, the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation.
The point being that courts recognize social change, but rarely lead the way.
Posner also ponders what’s next, noting:
…the Supreme Court is unlikely for some time to force homosexual marriage on states by declaring it a constitutional right. That would be one bombshell too many. The most the Court is likely to do (how likely I don’t know) is to force states that do not allow homosexual marriage nevertheless to recognize such marriages made in states that do allow it. Most states recognize marriages made in another state as valid under that state’s law even if not valid in the state asked to recognize those marriages (Maybe the other state authorizes first cousins, or thirteen-year-olds, to marry and the state asked to recognize the marriages does not allow its own citizens to make such marriages). The Supreme Court may decide not to allow the state to make an exception for homosexual marriages.
That would be an important, and welcome, step. Somewhat contrary to Posner’s thesis, such a ruling seems like it would move things forward to a considerable degree. But I accept his contention that the Court will never get too far ahead of where the people are.
More. At Reason‘s “Hit & Run” blog, Jesse Walker writes:
Contrary to the chatter you hear in some quarters, gay marriage was not invented by social engineers and imposed on an unwilling country. It was invented by gay people themselves, who started getting married without anyone’s permission; their unions gradually gained acceptance in American communities and in the marketplace before state or federal governments were willing to recognize them. It is a classic example of grassroots social evolution…
32 Comments for “Courts and Culture”
posted by Houndentenor on
No mention of GOP Virgina gubernatorial candidate Cuccinelli’s call for bringing back sodomy laws even for married heterosexual couples (in spite of Lawrence)?
posted by Tom Scharbach on
Look, Houndentenor, Cuccinelli is a symptom, not the disease.
Virginia nominates at convention; the Cuccinelli-Jackson ticket reflects the views of the party’s activist base, which, in Virginia as in most states, is hard-core social conservative.
The party has spent three decades digging the hole, and it is going to take a while for it to climb out. Stephen has noted, a number of times, that he expects that it will take several more election cycles for the party to moderate, and I think that he is right on that score.
posted by Houndentenor on
I think we all understood that things will get worse before they get better with the GOP, but I really wasn’t quite prepared for how vocal and mean-spirited the Tea Party and Evangelical crowd would get and how quickly it would happen. I would also hope our so-called allies on the right would speak up about it.
posted by Tom Scharbach on
“ … I really wasn’t quite prepared for how vocal and mean-spirited the Tea Party and Evangelical crowd would get and how quickly it would happen …”
As moderates have peeled off over the last few years, the anti-equality movement is, little by slowly, being reduced to the fringe. Fringe groups are by nature vocal and mean-spirited.
The problem faced by the Republican Party during the next few election cycles is that hard-core social conservatives dominate the top-of-the-ticket level (both state and federal), and Republicans have few available alternatives. It is going to take a few election cycles for the party to develop a new bench.
“ I would also hope our so-called allies on the right would speak up about it.”
I share that hope.
posted by gus on
It is happening.
A federal judge in Ohio ordered state officials Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says “is certain to die soon.” “The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as ‘married’ and James Obergefell as his ‘surviving spouse,’” Judge Timothy Black wrote in granting the couple a temporary restraining order Monday.
This is what Judge Black writes in the first paragraph of his order:
“This is not a complicated case. The issues is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.”
http://www.buzzfeed.com/chrisgeidner/ohio-officials-ordered-to-recognize-gay-couples-marriage
posted by Houndentenor on
I understand what SCOTUS did and given the current political climate it makes sense. But they left a mess for the lower courts and there will be conflicting decisions leaving them having to hear more gay marriage cases over the next decade.
posted by Tom Scharbach on
But I accept his contention that the Court will never get too far ahead of where the people are.
For all the yammer about “judicial activism”, courts move incrementally, step by step. The Court steps in only rarely, most often to resolve by a conflict between appellate jurisdictions or to clarify the scope of an earlier decision.
On social issues, the Court does not usually get too far ahead of public opinion, but that isn’t invariable. Brown v. Board comes to mind, as does Citizen’s United. And the Court doesn’t hesitate to act in the face of a determined minority that it can expect will spend decades fighting the decision. Roe v. Wade comes to mind. So while Posner’s thesis is correct — I don’t know of any legal scholar who thinks differently — there isn’t a one-to-one correlation between public opinion and the Court’s decisions.
Cases, state and federal, raising a number of issues, will move forward in different jurisdictions over the next 5-10 years. The Supreme Court will take up one or two of those before issuing a Loving-equivalent decision; the Court will deny cert in most cases presented to it.
I agree with Posner that the next case that the Supreme Court to come before the Court is likely to be a case about interstate recognition of marriage. The situation presents basic constitutional questions (now you are married; now you aren’t) for the individuals involved, touches “reserved powers” issues (the limit of the “public policy exception), brings a federal statute (Section 2 of DOMA) into play, may (probably will) present a conflict between the appellate districts, and raises messy non-legal issues involving business and commerce. The situation is a near-perfect setup to generater a case that will require the Court to step in.
That being said, I doubt that we will see a Loving-equivalent decision until the 2020-2025 range, but things could move forward more quickly, of course, depending on what happens in the states.
posted by Jorge on
Even with the examples of Brown and Roe I tend to believe that the courts (and the law in general) follows rather than creates public opinion.
Brown arguably led indirectly to the Civil Rights Act. But it was the Civil Rights Act that passed by a majority vote, and after a major civil rights movement. Brown did not end racial discrimination or even racial segregation by the government. I think Brown forced a national conversation to happen by the strength of the legal arguments in the case (including the absence of any dissenting opinion) and by what hit the national news. The lesson that Roe gives is that outcome of a court case does not predetermine the content and outcome of a national conversation it starts.
That is how I would like to resolve the contradiction between the limited role of court cases in influencing marriage equality and their power to enact far-reaching changes.
posted by Jorge on
I think Brown forced a national conversation to happen by the strength of the legal arguments in the case
In other words, as a democratic, free debate measure, rather than as an authoritarian measure.
posted by Don on
I personally thank the Bush administration and Ken Mehlman for doing all they did for marriage equality in the last decade. Although many like to point out that they took a sledgehammer and smashed our fledgling marriage rights to smithereens using mass hysteria to further their altogether different political agenda, I deeply believe they did us a huge favor. We were, for decades, referred to as the “unspeakable sin.” They picked us up out of the liberal left and placed us in every dinner table conversation in America. It was suddenly acceptable to have a public opinion of gay marriage. People chose sides publicly and loudly.
They were always successful at keeping us relegated to the fringes until we became an acceptable topic for discussion. AIDS did it first; Clinton second with DADT and Bush did us the favor of marriage. Because almost anyone who debates the issue finds they are on extremely shaky ground. “Can’t have babies” is the first cry, but then its pointed out that an enormous number of marriages are not about procreation either. And the debate shifts. But when we were unspeakable or wacko-left dinner conversation; it was easy for the Evil Evangelicals to win the argument. (not all evangelicals, just the evil, hate-filled ones). They won it because we weren’t allowed to have it in polite society.
It’s the one thing I give W. credit for. Well, that and crashing the whole housing market so I could buy something for half price here in Miami. I was so against his policies until I saw that, inadvertently, he was really helping make my life better by being so abominable at his job. Behind every catastrophe is an opportunity. But only for those who look for it.
posted by Jorge on
Bush always made a point to separate his political views on gay rights from his personal views of gays. Another conservative president could have effected a political and social stigmatization of gays.
Bush was, of course, the best president of my lifetime, except perhaps for Reagan.
posted by Doug on
So Bush cynically used fear of gays to get elected, not to mention all the anti=gay legislation he fostered, while his personal view of gay rights was different. That’s disgusting on so many levels I can’t even respond. It’s very sad if that’s the best president of your lifetime.
posted by Houndentenor on
What someone feels or “really thinks” is none of my business. Okay, among friends and family that might matter, but politicians personal feelings are not my concern. What matters is what they do, especially how they vote and what policies and laws they enact or enforce. What Bush DID was harmful. The “fact” (if it’s even true) that Bush didn’t personally have any ill feelings toward gay people doesn’t change that he gay-baited in the 2004 election by promoting a constitutional amendment to ban gay marriage. I find this sort of argument bizarre. It’s okay if someone does heinous things so long as they didn’t really want to?
posted by Jorge on
So Bush cynically used fear of gays to get elected
That’s not even half-true. It’s not true of 2000, when he made a point of saying he does not believe in condemning people, and it is not true in 2004, when he framed the issue (accurately, in my opinion) as fear of activist judges.
It’s very sad if that’s the best president of your lifetime.
Deal with it.
posted by Doug on
Bush proposed a constitutional amendment to ban same sex marriage for god’s sake. How much more anti-gay can he be, but I guess that wasn’t his personal opinion only his political opinion, right Jorge?
posted by Jorge on
What someone feels or “really thinks” is none of my business.
Then how are you able to predict what they will do?
I realize just about every politician obfuscates so much it’s almost impossible to tell what they really think unless you watch almost every televised appearance of them (or read every piece of campaign literature or newspaper comment for more local politicians). However if you don’t do that it’s almost inevitable you will wind up being disappointed or “betrayed” as they go on to do something you did not expect. Say say actions matter more than beliefs, but it is beliefs that are the strongest predictor of actions. No matter how many interest groups are out there to blackmail and backstab officeholders into doing their bidding, they cannot control any reasonably powerful politician on every single important issue.
During the 2008 campaign, Barack Obama, Joseph Biden, and Sarah Palin all had the exact same position on gay marriage, but that was only on paper. Since then, Vice President Biden has been the fastest to support gay marriage, while only Palin is still opposed. Not exactly rocket science if you watched how they talked about their opposition in 2008.
I hear constantly about how so many on the left feel betrayed by Obama for one reason or another right now. That’s because they weren’t paying attention! They think he’s too much of a warmonger to deserve his Nobel Peace Prize. Didn’t they read or listen to his prize acceptance speech?
posted by Jorge on
Say say >> You say
posted by Houndentenor on
First of all, how am I supposed to know what anyone else REALLY feels. I’m not psychic. (I don’t even believe such an ability exists.) So I can only go on their record and their statements. Since we all know that politicians often talk out of both sides of their mouths, the record is a far better indicator than any statements.
You are right that many on the left did not pay much attention to what Obama said in 2008. He’s not nearly as liberal as they’d have liked him to be (and not even close to being as liberal as the right wants to paint him). I did listen and it’s why I voted for him.
And finally, yes to a certain extent neither the Obama nor the McCain campaign was for gay marriage, but how to marriage become the single defining gay issue. McCain was in favor of keeping DADT, for example. There were big differences between the two campaigns. And to flip what I said about Bush by applying it to Obama. I don’t care if Obama was REALLY for gay marriage when he said he wasn’t in 2008. What matters is what he does on the important issues with the power that he has as president. I’m glad he finally came around (after the polls showed a majority of Americans for gay marriage…so not really all that courageous a move but still historic).
We live in an era in which people are applauded for saying the “right” thing whether they act on it or not. I find that absurd. I judge people by what they do, not what they say. Yes, there is something to be said for giving inspiring speeches or advocating for a cause. Words often come before actions and can be important in leading to building the consensus required for action. But it is the action that changes things.
posted by Tom Scharbach on
I can only go on their record and their statements. Since we all know that politicians often talk out of both sides of their mouths, the record is a far better indicator than any statements.
I agree. President Bush may have been the living embodiment of “grace, love and respect” in his personal life, but the Bush/Rove/Mehlman anti-marriage amendment strategy was the driving force behind 30-odd equality lockdowns in the states, each of which will have to be dismantled in order for us to be treated as equal citizens under the law. Similarly, Governor Christie might be the very model of “grace, love and respect” in his personal life, but the fact remains that his veto is the sole reason why New Jersey gays and lesbians cannot marry. Who knows what either thinks in their heart of hearts, and who cares. It is what they do that counts.
[President Obama]’s not nearly as liberal as they’d have liked him to be (and not even close to being as liberal as the right wants to paint him). I did listen and it’s why I voted for him.
President Obama was my State Senator when I lived in Chicago, and I volunteered on his 1996 campaign for the State Senate. The President is, as he always has been, center-left, and not much to the left. At core, he is a pragmatist.
posted by Don on
I’m really not sure by what measure anyone could imagine Bush as a moderately decent present, much less good. Of course, you did add the caveat “in your lifetime.” So a Republican would have only Ford, Reagan, Bush I & Bush II to turn to. Given that, caveat, I can see your point. But mine was that the only reason I came to appreciate his tenure was the fact that I could personally capitalize on his spectacular failures.
By virtually all measures, Bush II will go down as one of the worst presidents. The series of events on his watch, and how he handled them, will become a text book of how NOT to do things.
Still, by trying to destroy gay marriage, he is insuring it. And by trying to boost the economy with too much free market, he destroyed it. And I found a way to capitalize on both. That’s the only reason why we are in accidental agreement on the quality of his record.
posted by Jorge on
I’m really not sure by what measure anyone could imagine Bush as a moderately decent present, much less good.
The No Child Left Behind Act. Started and still controls today’s dialogue and policy on national education policy in this country. An interesting mix of progressive and conservative policy, as well, and part of a gradual step away from affirmative action policies to address racial disparities in education.
The War on Terror. President Bush’s response to the September 11th attacks was decisive in taking the violence directly to al-Qaida and its supporters. He launched an invasion on Afghanistan, backing his tough words with military might. As a direct result, al-Qaida was significantly weakened in its ability to launch large scale attacks on Americans. Also a lot of them got killed. The president’s national security policies were also surprisingly successful at preventing another subsequent terror attacks on American soil for years afterward.
In both cases, President Bush set the agenda that is still ongoing and still controlling the conversation. Barack Obama did not reverse either the War on Terror or our national security policies, much less No Child Left Behind. He will not be known even for pulling the troops out of Iraq.
President Bush will also be known for presiding over a short recession and a good recovery immediately after 9/11, a feat President Obama was not able to duplicate in his first term.
I pointed to a political success, a policy success, and an economic competence.
I can go further, but I chose to focus on success rather than merit.
posted by Doug on
Bush also declared war on Iraq, a nation that posed no threat to the US. Bush proposed a constitutional amendment to ban same sex marriage. Bush passed Medicare Part D with no funding source. Bush only created about 1.5 million jobs in 8 years, compared to Clintons 20 million jobs, and finally Bush gave us the worst recession in 70 years.
posted by Don on
I thought No Child Left Behind was a conservative’s nightmare. All federal mandates, no funding. His response to 9/11 was to continue reading My Pet Goat and to be the first president in U.S. history to sanction torture and commit war crimes as defined by Reagan’s treaty against torture.
And the War on Terror created the Bush doctrine which is preemptive war. We can invade countries before they act. In short, if we believe you might do something wrong, we can go after you. Thought crime. Orwell covered that pretty well. So did the Tom Cruise movie Minority Report. Sounds great. But it isn’t.
And as for “Obama doesn’t seem to think its so bad . . .” which I hear so much. it’s not a good move to round up a former president and vice president and turn them over to a world court for a trial on war crimes. so we paper it over and plug along. I expect they will be tried posthumously.
He left office with an approval rating closer to Hoover than anyone else. Maybe Truman. Only the core 23% on the right who would support anyone and anything their party leader does still backed him.
But you are entitled to your opinion. I’d say Nixon was a much better president in terms of effectiveness and he had to resign in disgrace. Still, history I think will be kinder to Nixon than Bush. When no one is alive to spin what he did to make it sound less horrible, it won’t be good.
posted by Tom Scharbach on
I personally thank the Bush administration and Ken Mehlman for doing all they did for marriage equality in the last decade. Although many like to point out that they took a sledgehammer and smashed our fledgling marriage rights to smithereens using mass hysteria to further their altogether different political agenda, I deeply believe they did us a huge favor.
In the long run, we’ll have a host of Republican politicians to thank. The anti-gay statements of Republican politicians during the era of anti-marriage amendments will provide the clear and convincing evidence of animus we need to overturn the anti-marriage amendments in court.
The case filed in Virginia last week is a case in point. The record of animus provided by Ken Cuccinelli, Representative Bob Marshall (the driving political force behind the amendment) and other social conservative politicians with respect to the amendment and long record of anti-gay legislation (e.g. the law prohibiting private companies from offering insurance benefits to SSM’s) presents an almost perfect body of evidence.
What is true in Virginia is true in other states, too. If the party had not pushed so hard to inflame anti-gay fear and animus, we would have a much tougher row to hoe in undoing the anti-marriage amendments in court.
But let’s not get all mushy-headed. It is important to remember that the Bush/Rove/Mehlman strategy is the reason we have to undo anti-marriage amendments, and that need sets us back by years and years. If we didn’t have to undo all the damage the Republican Party did, we’d be on the cusp of equality, instead of a decade away.
posted by Don on
I’m not singing their praises with seriousness. But I’ve got a lot of experience in media relations and p.r. Let’s just say i’m not so sure we’d be as far as we are without them. It mobilized the gay community on the sidelines, it motivated the rabid haters, and it forced the media to take notice because there was a news hook. NONE of that would have happened without Bush/Mehlman/Rove in my opinion. We would have eventually ground them all down. i’ll give you that. But I’m not buying that it would have happened more quickly without this setback. Status quo wasn’t seen as victimizing gay people for no reason. It was, but no one saw it that way.
When Bush used us to get elected, it pissed a lot of people off. It mobilized the entire left wing of America. They didn’t want to push gay marriage forward. But when Bush used it to defeat them and get himself elected, they wanted this issue off the table and turned one of his weapons against him.
But i’ll readily admit i’m overstating it. i’m enjoying the schadenfreud of those bastards beating up on the little guys for their own selfish reasons and having it bite them on the butt.
it reminds me of the child molesters and their enablers in the catholic church crying foul and whining that WE destroy families and society. yeah, because molesting children and feeding more children to predators by shuffling them around before the parish figures out what’s going on is a building block of a strong society.
posted by Tom Scharbach on
But I’m not buying that it would have happened more quickly without this setback. Status quo wasn’t seen as victimizing gay people for no reason. It was, but no one saw it that way.
As I think about it, Don, you are probably right in the overall scheme of things. I was thinking about the mechanics of undoing the amendments, which is a 5+ year process in most states, even under the best of circumstances.
posted by Mike in Houston on
I have to take exception to this:
“If there was a backlash to Lawrence [finding sodomy laws unconstitutional] it was slight, because Lawrence wasn’t that big of a deal. For by 2003, there was virtually no enforcement of laws against homosexual sex….”
Polling immediately after the ruling showed a real uptick in anti-gay sentiment — reflecting, I believe, that people will say that they are more accepting as long as they know that it really doesn’t matter… and the antipathy generated within the white Christian evangelical GOP base was enough provided just the energy needed to pass 30 state constitutional marriage inequality amendments (Thank you Ken Mehlman).
Fortunately, a good chunk of that GOP base has either died or been outstripped by the rest of the country since then — hence the continued growth in support of marriage equality and the desperation now seen by NOM, FRC and the rest of those ill-begotten souls who are now left to argue that “religious freedom” = “I get to be a bigot and get away with it, without you being allowed to call me one”.
posted by Jorge on
Polling immediately after the ruling showed a real uptick in anti-gay sentiment
“Anti-gay” has come to mean so many things these days I need to ask if you can be more specific.
posted by Tom Scharbach on
Here’s an excerpt from a contemporary (July 29, 2003) AP article:
The interesting thing is that we have not seen a similar backlash to the recent Supreme Court decisions. I think times are changing.
posted by Jorge on
The interesting thing is that we have not seen a similar backlash to the recent Supreme Court decisions. I think times are changing.
I read his post wrong. I thought he was talking about this year.
posted by Mark on
I very much admire Judge Posner as a public intellectual. That’s why it’s so disappointing to see him using language such as “force homosexual marriage on states.” That sounds like something out of a NOM fundraising e-mail, not a neutral description of events.
posted by Houndentenor on
The courts may be with us, but the elected GOP officials are most certainly not.
http://www.10tv.com/content/stories/2013/07/24/ohio-ag-dewine-discusses-same-sex-marriage.html
DeWine won’t even refer to the two as a couple. He won’t even acknowledge that they are in a relationship. To him they are only “individuals”. I keep hearing about all the good LCT and GOProud can do within the Republican party. Well bloody go and do it already!