The Veto.

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Not unexpectedly, but still regrettably, Gov. Schwarzenegger has announced he'll veto the California gay marriage bill, saying it conflicted with Prop. 22, passed by voters in 2000, which prevents the state from recognizing same-sex marriages.

Still, that an elected legislature passed the measure, rather than having a court ruling impose it, was a good thing. And putting the best face on it, the veto may deflate somewhat the push to pass a same-sex marriage-banning amendment to the state constitution. But while I think there is some justification to the backlash fears (see previous item), it would have been a monumental thing to enact gay marriage through the democratic process. It will happen, eventually.

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California Marriage Advances: Speed Bumps Ahead.

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California lawmakers on Tuesday became the first in the country to approve a bill allowing full same-sex marriages. Now come the real battles. Gov. Arnold is under big-time conservative pressure to veto the measure. That would be a shame. But even if he does allow it to become law, California voters will likely face two ballot initiatives next year, to ban gay marriage, or to ban both gay marriage and domestic partnerships.

The betting money, unfortunately, is that voters will keep DPs but scrap marriage equality. Nowhere have voters, to date, failed to ban gay marriage when given the chance, and when initiatives have included DPs, they've been banned as well.

The worst case scenario: voters scrap existing domestic partnerships, which in California confer virtually all state rights and benefits associated with marriage.

In 2000, California voters roundly approved Prop. 22, which altered the Family Code to limit marriage to a man and a woman, by a vote of 61.2 to 38.8, and the legality of that measure is now in the state courts. If there's a Schwarzenegger veto, he'll probably cite the voters' expressed opinion. Coming up, we'll see how things go when a full-blown constitutional ban is on the initiative table.

We know that relying on liberal courts to push through marriage equality is a recipe for backlash. But will a liberal state legislature's approval fare better with voters?

Update: Gay Patriot blogs:

I'm torn between the will of the people and the will of the elected representatives. I think this is an important step. But what do the 61% of Californians who voted against same-sex marriage in the year 2000 think about their elected representatives? I don't know. I admit I struggle with it.

And one of his commenters, Joe, writes:

I fear their move is an overreach-one that will be repudiated at the polls (initiative process). It was a purely symbolic, unnecessary move because they already passed strong civil unions last year. Led by Democrats, they did it basically to say "screw you" to conservatives (and California voters) who don't like gay marriage. I would rather they hadn't done it at this time. I say this as a longtime supporter of gay marriage. Most of society (in your state) has to be on board with you, for the new law or institution to work.

If things turn out badly regarding next year's referendum, we'll recognizes these, in hindsight, as valid concerns.

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The Gays Who Cried Wolf.

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Dale Carpenter's newly posted column takes a look at the attacks by certain gay groups against Supreme Court nominee John Roberts-now nominated to be Chief Justice-who helped gay attorneys win a landmark Supreme Court case. He writes:

The unofficial reason for gay groups' opposition has nothing to do with Roberts' record on gay rights and everything to do with the politics of abortion and progressive "coalition building." The left has decided to oppose anyone President Bush names to the Court. . .

I'd add that having surrendered their credibility by going ballistic over Roberts, a nominee moderate senate Democrats are poised to support, what cachet do these groups expect to have if Bush nominates a real, gay-unfriendly social conservative to fill the newly vacant opening?

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Who Set the Low Bar?

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It's disappointing to read that John McCain is supporting a state constitutional amendment in Arizona to bar gay marriage. But could McCain, running for the GOP presidential nomination, be expected to fall to the left of the "progressive" Democratic presidential nominee on gay marriage? Remember, Kerry/Edwards supported anti-gay-marriage amendments in Massachusetts, Missouri and elsewhere. If the party of the left, backed by national gay activist groups and receiving copious amounts of gay dollars, endorses anti-gay amendments, how high a bar is set for moderate Republicans to do the right thing?

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A Higher Power?

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Ideological activists on both the left and right aren't shy about using gut-wrenching human tragedy to advance their zealotry. Witness those on the anti-gay religious right who blame gays for the destruction of New Orleans, and those on the climate-alarmist left who blame "global warming," which even the New York Times initially couldn't swallow, although its anti-Bush-at-all-costs editorialists seemly could. (Hat tip: James Taranto's Best of the Web -- take a look.)

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Santorum’s Big Government Agenda.

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Jonathan Rauch, who in his spare time volunteers as IGF's co-managing editor, focuses his column in National Journal on why Sen. Rick Santorum (R-Pa.), one of the senate's leading advocates against gay marriage (and against sodomy law repeal, for that matter) is "the anti-Reagan" at odds with his party's Barry Goldwater/conservative legacy (note to our left-liberal readers: that's meant as a critique). Writes Rauch of Santorum's new book, It Takes a Family:

Where Goldwater denounced collectivism as the enemy of the individual, Santorum denounces individualism as the enemy of family. . . .

In an interview with National Public Radio last month, he acknowledged his quarrel with "what I refer to as more of a libertarianish Right" and "this whole idea of personal autonomy." In his book he comments, seemingly with a shrug, "Some will reject what I have to say as a kind of 'Big Government' conservatism."

Which, as Rauch points out, is exactly what it is.

Also taking a look at Santorum's new opus, blogger Tim Hulsey comments that Santorum uses Reagan's rhetoric to destroy Reagan's smaller-government legacy, and that:

Reagan in his prime would have had the perfect four-word review of Santorum's book: There you go again."

More Recent Postings
8/21/05 - 8/27/05

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John Roberts…Prejudged

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"'Let the jury consider their verdict,' the King said, for about the twentieth time that day. 'No, no!' said the Queen. 'Sentence first-verdict afterwards.'"

This famous little passage, from the trial of the Knave in Lewis Carroll's Alice's Adventures in Wonderland, could have been written to describe the attitude some national gay groups have taken to the nomination of John Roberts to the Supreme Court. Not yet having heard the most pertinent evidence-what the nominee himself has to say about his judicial philosophy-they have already handed down their sentence: they oppose him. This prejudgment is unfair and won't endear us to a man who may sit on the Court for more than a generation to come.

Let's be crystal clear: we know almost nothing about Roberts as a judge. He hasn't been on the bench long and he's decided few cases of any import, and in each of those was bound by Supreme Court precedent. Here's a short run-down on some important gay-related questions to which we do not know the answers:

  1. Does Roberts believe there is a constitutional right to privacy? If so, what would be his methodology in deciding whether a particular activity fell within the protection of this right? The answers to these questions would give some indication whether he thinks the Supreme Court was right to strike down state sodomy laws in Lawrence v. Texas two years ago.
  2. Does he believe Congress has the constitutional power to enact civil-rights laws that forbid private discrimination? The answer to this question would help us determine whether he thinks a federal law banning anti-gay job discrimination would be constitutional.
  3. Does he believe Congress has the constitutional power to strip the federal courts of all jurisdiction to decide particular issues? The answer to this question would tell us whether he thinks Congress could forbid federal courts even to hear gay-marriage cases or other claims.
  4. Does he think a state may forevermore strip a single group of all civil-rights protections? The answer to this question would suggest whether he thinks the Court correctly decided Romer v. Evans , which struck down a Colorado state constitutional amendment doing same to homosexuals.
  5. When, if ever, does he think the Court should adhere to a decision that he believes was wrongly decided? The answer to this question would indicate whether he would actually vote to reverse Lawrence or Romer, even if he thought they were erroneous.

Senate hearings on the Roberts nomination will begin September 6. Then Senators will have the chance to ask these questions and more. We should listen closely to the nominee's answers. If he refuses to answer we're free to draw negative inferences from his silence.

Since so much is unknown at this point, however, why have four prominent gay groups-including PFLAG and HRC-rushed to oppose him? There's an official answer to this question and an unofficial one.

The official answer, recounted in a joint statement issued by the groups, is that Roberts wrote several memos as a young lawyer in the Justice Department 20 years ago that, interpreted in the most negative possible light, support the assumption that he might be an "anti-gay" justice.

Nothing in Roberts' public record of more than 25 years as a lawyer, judge, and commentator expresses an opinion on whether any gay-rights precedent should be overruled. Roberts has said nothing about how the Court should decide any gay civil-rights claim. He has said nothing about the constitutionality of sodomy laws, employment-protection laws, hate-crimes laws, etc. At most, some passages in some old memos seem skeptical about a constitutional doctrine, the right to privacy, that eventually provided a basis for Lawrence.

Even if Roberts' presumed skepticism about the right to privacy continues to this day-something we also do not know-being skeptical about a doctrine and being willing to discard it are two very different things. If past skepticism about the vague "right to privacy" disqualifies Roberts from service on the Court, then quite a few liberal law professors must also be disqualified.

Moreover, while we're reading tea leaves, a better and more recent indicator of Roberts' attitudes toward gay-rights claims is his volunteer work for gay advocates in 1996 in Romer. The leading gay-rights lawyer in the case says Roberts' brief help was crucial.

This pro-gay volunteer work by Roberts tells us two things. First, he's not personally anti-gay. Second, at least in an extreme case, Roberts will listen with an open mind to gay-equality claims. Whatever Roberts said 20 years ago, the trajectory of his career appears good for us.

What credit does this prominent conservative get for helping gays? Gay groups completely discount it and then summarily oppose him. (Gay groups, that is, except the national gay group that specializes in legal issues: Lambda Legal has notably withheld judgment until Roberts' hearing.) Imagine the reaction if Roberts had worked for the anti-gay side in the case!

The unofficial reason for gay groups' opposition has nothing to do with Roberts' record on gay rights and everything to do with the politics of abortion and progressive "coalition building." The left has decided to oppose anyone President Bush names to the Court, mostly to protect abortion rights. Gay groups are dutifully tagging along. It is as unseemly and unjust as the mad Queen's insistence on executing the prisoner before hearing the evidence. Only it's not funny.

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Sad, but Not Surprising — Notes on the ‘Gang of Four’.

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Four leading Democratic Party front groups that specialize in targeting gay donors have come out against a Supreme Court nominee who helped gays achieve one of our seminal victories of the last decade.

If Roberts is sunk, one thing I can assure you, the next nominee won't be as good on gay issues -- but then again, do you honestly think that matters one bit to groups that see their real mission as advancing a broad-based, big-government "progressive" left-liberal agenda via the Democratic Party?

Updates: The Washington Post's account. John and Jane Q. Moderate must be scratching their heads, wondering why "the gays" are against a judge who volunteered his efforts on behalf of their cause. Or maybe the public is more savvy and understands what most (not all) "gay" activists actually are.

I note that Lambda Legal Defense did not sign the anti-Roberts statement, and neither did GLAAD, which has a new moderate-Republican executive director.

A good letter on abortion and activists' hypocrisy, in our mailbag.

And some thoughtful comments (and others less so) in the comments zone.

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Democracy — Good for Gays?

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Back after a week's vacation, so I'm a bit late commenting on this story - about a gay Iraqi lamenting that life was better under Saddam's absolute dictatorship. But I think it raises an interesting point. Iraq has its first democratically elected governing assembly, which may enact a constitution that, by recognizing Islamic law, leads to persecutions of gays. (Of course, under Saddam, if you were a Kurd or Marsh Arab, you were subject to organized genocide, and any dissidence, even among the favored Sunni, would get you and your family - small children included - imprisoned, tortured and executed, but that's another story).

Here in the U.S., too, some gays may worship at the altar of the Democratic Party, but fear and loathe democratically elected governments that are against expanding legal equality for gays (and hence, they favor a strategy focused on achieving judicial decrees from left-leaning judges that can be enforced against the intransigent electorate).

So, is democracy good for gays?

More Recent Postings
8/14/05 - 8/20/05

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