Iowa and Same-Sex Marriage
Dean
Oh God, here we go again.
This will, I predict, just hurt the gay community and the cause of simple fairness, just like it did during the last couple of election cycles.
Using the courts this way is so foolishly destructive.
Related Posts (on one page):
- Same-sex marriage takes legal hit in Maryland
- Not so fast
- Iowa and Same-Sex Marriage
I've never understood this argument. Isn't this the court's job? And if this ends in an amendment to the state constitution that removes the grounds for the judge's ruling, isn't this also how things are supposed to work out? Isn't it simple checks-and-balances working as intended?
There's no perfect solution for the whole thing, because there will always be people, like some who post here, who think that things like gay marriage just cannot be allowed, in any way, shape, or form. So they'll always lobby against it. It's just another form of demosclerosis forced by narrow interests.
The best hope in the long run is, like other things involving sex, that eventually the general attitude goes far enough that the current laws are just worked around, and become jokes. Like laws against 'sex toys' in Alabama or oral sex in other municipalities.
Isn't this the court's job?
I don't think it is. I think it kinda serves as an end-run around the people doing their job.
I think the civil-rights struggle in the 60's is a decent analogy. There were two prongs:
First, was the activism, the protests, the political fights that resulted in historic votes (issue decided by people and their representatives) to enact civil right laws.
I think that's good.
Second, was the court room fights by NAACP against various unjust laws. True, this did result in Brown v. Board, which many consider a smashing success. But, it also resulted in a morass of forced busing for decades, which resulted in white flight outta the cities, which resulted in crappier public schools in the inner cities (where good schools are needed most).
So, without passing judgment on the merits,my view is that the legal activism is often a mixed-bag and counter-productive.
I think it would be much more potent and legitimate if a majority of Iowans -- after rigorous civilized debate -- voted to permit same-sex marriage.
My thoughts -- I could be completely wrong on all of them.
HankB
And of course, gay people should just wait for nice tolerant people to get around allowing their families to have rights. I mean, It was only going to take until 2100 or so. Why couldn't they just have waited?
Bottom line is that gay people can get married in the US now. Say what you will about the Mass decision (and most of the "saying" is woefully ignorant of the legal grounds on which it was decided in any case), makes no sense whatsoever to paint this as hurting the cause of gay rights. There are now far more stats that offer far more reasonable options for gay families than existed before.
People wouldn't even be paying attention to the rights of gay people in the first place if not for these issues. Is there a backlash? Of course there is: how could gay people get more equal rights and there NOT be a backlash from that?
I suppose segregation would have gone away eventually with less fuss and turmoil too, and that some of the legal tactics used against it were controversial. But waiting on all the nice kind people who support equal rights but tsk tsk when the courts are the first ones to push them through was not exactly a viable option either.
Oh please, you have no idea what you're talking about. More so, you have inadvertantly hurt your own cause.
Whenever judges interpret the equal protection too broadly to include a right to same sex marriage, what happens is that right wingers in the state hold a referendum (or other legislative mechanism) to amend the state constitution to explicitly reject the right to same sex marriage.
Maybe, you should brush up on the law of unintended consequences. On a practical level, judical activism just ain't working on this particular issue. Your naivete is actually helping opponents of same-sex marriage.
HankB
I certainly agree that there must be a legislative prong to civil rights activism. But these can also go astray and lead to backlash. affirmative action, for example?
My point is that the court exists in the checks-and-balances system specifically to overturn laws passed not in accordance with principles enshrined in the constitution of the state/nation/etc. Whether it encourages backlash or not, the simple fact is that this is the court doing its job. If there is enough support for the overturned law that a constitutional amendment to permit the law is passed, then that's the legislative body providing its check and balance to the judicial branch.
As to which approach is more productive, I don't know that either of them are particularly productive or counterproductive. Appeals to legislative bodies are unlikely to produce much until there is overwhelming support among their constituency for a measure, because legislators aren't principled advocates, by and large. This could mean a long wait for rights, and it's a defensible position to say you're simply not willing to wait. Like with Brown v. Board, it would be like telling a mother: "Sorry your kid is going to have a shitty education, but just think, generations from now your great-grandson will get a great one."
Judicial appeals have the problem that you mentioned. Because the decision often rests in the hands of one or a few judges, they often galvanize opposition support. This in turn leads to a stronger backlash. But, typically the backlash galvanizes a counter-backlash. As Vic mentioned, it at least provides visibility to an issue that would languish out of the public consciousness if there were simple legislative debates on the subject.
Each has definite pros and cons, but I guess my point is that neither one is likely to generate lasting change that precedes strong public support. Thus the question is how to create strong public support? It isn't obvious to me that the judicial route is worse on this score. Yes it galvanizes opposition, but these are people who were in opposition to begin with. Are there really people who would say: "I support gay rights, but now that a court has ruled on it I'm switching sides!"? It seems to me that a legislative attempt at gay marriage, such as was attempted in california, would also probably galvanize an equally strong response, as was galvanized in california (where in an ultimate irony arnold vetoed the bill on the grounds that it was a court issue!).
Am I being naive?
The Civil Rights era is the wrong historical analogy because of the specific facts of that question. There, the Thirteenth Amendment to the Federal constitution was implicated. That type of specific amendment is not implicated here. The better analogy is Roe v. Wade, and the problems and distortions it has brought to the political process both state and national since its ruling.
Ah, yes. Because the all social mores about sex should be tossed out the window. Live and let live! Polygamy, NAMBLA, it's all good, right?
Baloney.
I have a feeling I represent the reaction of most Americans on this issue: We have a 'whatever' attitude towards homosexuality now. Don't flaunt it please (guys kissing is, I'm sorry, plain gross), but what you do in your own bedroom is mostly your business. Hell, we don't even care if the state offers most of the same rights as marriage.
But you know what? What you have may be great -- But it is not a marriage. Most of us think that the union between a man and woman is something special. It has been given a significance in our culture, and that needs to stay.
And, yes, if you force us to we will defend it with every legislative means available. We will lock you out constitutionally, and then you'll be screwed. It has already happened in 27 states.
Sad and pathetic.
But it does show what I was talking about with my earlier comment. It would be MUCH easier to wait until people like Jesse Hill are gone from the earth, or have some change of heart, and just do what you want to do in the meantime, as much as you can. Because as much as folks like him don't like it, I doubt that they'd have much luck bringing the power of the state down against homosexual couples that did want to exchange a smooch in public. And eventually people who see that 'wow, those two guys kissed, and the sun didn't go out, and everyone else I know didn't divorce, and people still love their spouses, no matter what sex they are' will outnumber those with a knee jerk reaction to make whatever they don't like right now part of the very fabric of the law.
That's why folks like me, and Dean, and Hank Barnes are saying what we're saying.
Show two men or women be allowed to marry? NO, not under the societal norm. Should two men or women who choose to join together, to live as a loving couple have the same legal rights as a married couple? YES, as a civil union, governed under contract law.
This is the whole argument, as I see it.
Marriage is a sacred word, and has all the associated values and norms attached to it. Trying to change that meaning to fit homosexual couples will result in a backlash of unintended consequences.
The fact of the matter is that somehow, a bizarre notion has gotten into some people's heads that most civil rights advances happen due to court action. That's ridiculous. Historically that's never been true. In fact, it's usually been the LEAST effective way of securing civil rights reforms and has often led to disasters. And I don't mean in recent years or generations, but going all the way back to the Constitution was ratified in the 1780s. There are all sorts of court decisions that have taken civil rights backwards, not forwards. And furthermore, massively unpopular court decisions have often had the effect of angering the electorate so much that they wind up doing something far more draconian than they otherwise would have--which is exactly what's happened in this case.
What those who want fairness--and really, that's all they're asking for is fairness--for gay couples need to do is stop playing this dangerous game of baiting the public with what is increasingly viewed as an Imperialistic Judiciary, and do the hard work of grass roots DEMOCRATIC POLITICAL ACTION--which is how most of the successful civil rights reforms that this nation has seen have all been enacted.
Indeed, I see that Hank invokes the Civil Rights Era (roughly 1950 to 1970) and one court decision--Brown v. Board of Education. But look at that same era and you will find that FAR more important advances happened due to EXECUTIVE and LEGISLATIVE action, and not from the courts. At both the state and federal level, in fact.
Most enduring reforms happen that way. The courts are the worst, and least reliable, way of creating such reforms. Indeed, to repeat, as I've been saying for years and years now, the angry backlash that making an end-run around the voters has done far more harm than good.
The Vic Steins of the world often surprise me--someone who works in politics professionally should know that the whole reason we have elections is to decide contentious issues.
Enjoy talking issues you, bud.
Here's Democratic Governor of Iowa, Chet Culver, about this "legal" ruling:
"While some Iowans may disagree on this issue, I personally believe marriage is between a man and a woman," the governor said.
I suspect Iowa becomes the 35th or 42nd State or whatever it is to pass a Constitutional Amendment banning same sex marriage within a year.
It doesn't have to be this way -- that's what so damn freaking exasperating!!!!
I don't have the numbers, but I bet 20 years ago the public was at 90-10 against gay marriage.
Now, the numbers are now probably only 55-45 against gay marriage.
That's amazing progress! But, said progress will come to a standstill if every state, but Massachusetts, explicitly bans same-sex marriage. It's like Sisiphys rolling the rock up the hill.
Yes, I fully agree that courts are a necessary component of our system. But, they are good for resolving discrete disputes -- they aren't so good in dealing with macro-policy. Dred Scott helped fanned the flames of the Civil War -- Roe v. Wade energized the Moral Majority, and helped turn them into a political powerhouse.
I'm not naive that it takes a lotta years and hard work to persuade people to change their minds on issues. People are stubborn. But, I think that's the only way to do it. All these lawsuits to impose societal change won't work, in my opinion, and create a huge backlash.
But, you do have a lotta good observations that are definitely worth pondering.
HankB
p.s. Does Vic Stein really work in professional politics? Hmmm. The more advise he's giving, the more I'm betting on his opponents:)
Complete strawman. I never said anything about outlawing same-sex kisses. I just said they were gross to watch (men in particular -- lesbian kisses can be pretty hot). In fact, I said homosexuals should be given the all the rights of marriage. I don't care.
If you're going to attack my beliefs, at least have the decency to get them right. But I'm not going to sugarcoat it, either.
No, Dean, what you're asking for is to change what our society views as marriage. That isn't 'fairness,' it's a complete alteration of one of the building blocks of our society.
Fairness would be civil unions, seperate from marriage which -- by its very definition -- is something different. Gay relationships (strong and healthy as they may be) cannot result in a marriage. There is a fundamental incompatibility with the genders of the participants. An apple is an apple, no matter how much you may want it to be an orange.
According to PEW:
By nearly two-to-one, more Americans oppose (59%) than favor (32%) legalizing gay marriage.
And the whole reason we have constitutions is so that majorities cannot blithely screw over minorities.
"Indeed, to repeat, as I've been saying for years and years now, the angry backlash that making an end-run around the voters has done far more harm than good."
Well that might even be a good point if it made any sense in light of the situation. Gay families have far more rights today than they ever would have had if they had just waited for people like yourself to get around to not making them be second-class anymore. I'm sure you were going to get around to it right after you cured cancer though!
Hank: "Now, the numbers are now probably only 55-45 against gay marriage."
And what made that happen? What made people even realize that it was something they should even think about, much less realize that it could happen in reality instead not even in anyone's wildest dreams?
Would that 32% for it ever even have really considered the issue in the first place?
"That's amazing progress! But, said progress will come to a standstill if every state, but Massachusetts, explicitly bans same-sex marriage."
This argument might make sense if any of these bans actually did anything. But they don't. Gay marriage never existed in those states in the first place. They are nothing more than exercises in right-wing masturbation. As people see that Mass and other states that HAVE granted marriage and civil unions (some of them legislatively) don't explode because of gaypocolypse, those laws will simply be repealed as easily as they were put in place.
"Roe v. Wade energized the Moral Majority, and helped turn them into a political powerhouse. "
Again, this is looking at the wrong things. Sure there was a backlash. But the bottom line was that women gained a major new degree of reproductive control, and still have it today. Even if you are against abortion, it makes no sense to whine that this decision was BAD for abortion rights.
Sure, some court rulings and cases can be counterproductive and disruptive. But not all of them. Some are part of real progress. It just isn't as simple as you claim.
The problem with you guys is that you get a basic script that sounds good to you, and you stick with it, come what may, no matter what the situation or the evidence is.
"p.s. Does Vic Stein really work in professional politics? Hmmm. The more advise he's giving, the more I'm betting on his opponents:)"
Too bad I've won by unexpected margins every single campaign I've worked on save Kerry's, and even there, my counties outperformed most of the rest of the state in terms of expected vote.
Gee, ya think?
You mean when the Mass Supreme Court by a 4-3 decision usurped its role as Super-Legislature to find a judicial right to gay marriage, and, then, in response, the country gets 30 State Constitutional amendments banning gay marriage plus a George Bush presidency, you consider it a bit "counterproductive."
Hank: "Now, the numbers are now probably only 55-45 against gay marriage."
Vic: "And what made that happen? What made people even realize that it was something they should even think about, much less realize that it could happen in reality instead not even in anyone's wildest dreams?"
What made that happen wasn't any ridiculous judicial opinion, it was gay people (like Andrew Sullivan) pushing the issue, fighting for recognition, and persuading many people in the middle who aren't dogmatic on this topic in either direction.
You people have watched to many courtroom t.v. shows.
HankB
p.s. Too bad I've won by unexpected margins every single campaign I've worked on save Kerry's,
Who are you supporting in '08? I need to start placing my bets:)
Nobody but the most ridiculous opponents of gay marriage think there will be a "gaypocolypse." Most of us, Vic, simply believe you're trying to tell us the sky is green when it's obviously blue. That is, you're trying to sell gay marriage to us when we know that "gay" and "marriage" do not go together. Marriage is between a man and a woman. You can do all the logical flip-flops you want, but that doesn't change that fact.
Now, you want civil unions? Fine.
No, that isn't why courts exist. The separation of powers is implemented by the courts applying laws written by the legislatures. One branch encodes laws, the other branch applies them to specific situations.
There is nothing in the Constitution granting the USSC the power to overturn any law. Quite an oversight if that was indeed the specific purpose of the courts.
it's not exactly about marriage. If you want to 'sell' civil unions, then sell how much easier the divorce process would be. It'll be needed.
Which, BTW, is where enacting gay marriage would most impact straight marriages: Divorce law. You think Las Vegas is quickie now?
Stop hiring activists and using lawyers. People hate activists and lawyers.
Do you want actual social change? Do you want people to say "okay, I may have religious/moral issues with homosexuality, but I can live with basic fairness toward such couples?" Or did you want to ram it down their throats and tell them they'll accept it and like it and fuck them if they have issues with it?
A majority of states now have Constitutional amendments outlawing anything that looks like gay marriage. You guys think of that as "progress?" Imagine if, during the Civil Rights era, when black people took their case to the public, and worked hard for legislative and executive action at the state and Federal level, had instead relied on nothing but the courts to get what they wanted. No effort to inform or persuade the public, they just looked to the courts to get what they wanted, period.
There would have been no Rosa Parks. I mean, why bother with Rosa Parks? You only have to convince a judge, right?
The gay marriage debate is not about "fundamentally redefining civilization" and it is not about getting courts to recognize "constitutional rights" (which they have a piss-poor record of doing anyway). It's about simple decency and simple fairness. You can disapprove of homosexuality all you want, for religious or just plain silly ("ick that's gross") reasons you want. But let's look at fairness: the lesbian couple that's lived together for 30 years in a stable relationship deserves some sort of recognition and protection if they seek it from the state.
And by the way, let me also point out an example of hypocrisy: it's amazing to me how many right-wingers who claim to hate government meddling will stand up and scream that "marriage" is defined by the government. Huh? Come again?
uhhh...
Hank,
enjoy talking the issues, too. what you are saying makes sense and i can appreciate the feelings judicial fiats can stir up. i'm just not sure what the best course of action is. these judge ruling always seem to make the paper, but i'm not sure which invigorates the opposing side more: mass.'s legislatively approved gay marriage or iowa's judicially constructed 3 hours of it. it seems to me both can be equally effective lightning rods. one is happening in someone's backyard, but the other argument ("this could happen in your back yard.") seems just as easy to make to a potential supporter of a constitutional amendment.
maybe the right answer is that government in general is piss poor at helping social change, and regardless of the fights happening at the governmental level (which i think are great, both judicial and legislative), the real fight should probably be focused on the ground, at promoting issues of decency, fairness, etc. to the community in general. as has been stated much more eloquently elsewhere (volokh had a series on it a year or two ago), there is a VERY powerful conservative argument for gay marriage to be made, and i think it would resonate strongly with pretty much everyone not foaming at the mouth. problem is those sorts of common-sense arguments to the people often get overlooked in a country-wide, bipartisan political culture over-obsessed with lobby groups and loudmouthed activism.
Of course we all lose our tempers now and then. Dean freely admits to being imperfect in this regard, which is why regulars to this establishment will generally be cut more slack than people who we don't know very well.
Still: behave like an adult, or go find somewhere else to play. Thanks.