More on Benjamin Wittes' "Defense of Marriage"

Hate to keep harping on this one, but Benjamin Wittes' essay on the decision in the California case just won't go away. It is itself a wonderful case study in the caliber of argument coming from the right on this. Aside from Glenn Greenwald's definitive dissection, Scott Lemieux made an apt comment with overtones of Gertrude Stein: "there's no argument in it." Wittes' sole claim to originality is his contention that the California supreme court has designated everyone who favors civil unions as a "bigot." No, sorry: the people who are floating the referendum to override the decision are bigots. Most of us recognize that civil unions are a compromise -- you know, a solution that makes everyone equally unhappy. They are, as the residents of New Jersey have learned, not adequate. The court was smart enough to see that.

One of Lemieux's commenters wonders whether Wittes even read the decision. I don't see how that makes a difference: he would have used the same tired and false arguments no matter what. As Lemieux points out, this seems to be a habit of his.

Other than his remarkably consistent conviction that decisions that piss of conservatives are bad and decisions that piss off liberals are good, I frankly don't know what the content of his standards regarding the democratic legitimacy of judicial review is.

Probably because that is his sole standard.

Update:

Wittes replied to Sullivan with comments that seem to me at best tangential to the discussion. The kernel, I think, is here:

We are talking here about the transformation and broadening of an institution, not--as in the civil rights cases--the question of whether this society was going to honor the promises it made to black people in ratifying the Civil War amendments.

I'll admit to difficulty that including same-sex couples in the realm of "marriage" is somehow tranforming the institution. There's no real structural change that I can see at all, any more than there was a structural change after Loving. You have to be welded firmly to the idea that marriage is necessarily a matter for persons of opposite sex, that no other relationship bears any significant resemblance to marriage, and a host of other ideas that I just can't accept fully. Marriage is, first and foremost, a contract. It has always been as much about inheritance of property as anything else, and the idea that it reflects and sanctifies the love between two people is a late gloss.

The argument is really not whether we are changing the definition of marriage, but whose definition is going to prevail: the traditional one of a contract between two parties to determine inheritance and property rights, or the more recent one proposed by the religious right of a sacred covenant between a man and a woman. And if we accept the latter as "the" definition, why? Why accept a particular sectarian doctrine as applicable to all? (And it is sectarian: a number of religions and denominations have seen their way clear to recognizing same-sex marriage as a valid example of the institution, so why should the religious views of evangelicals prevail?)

(Sullivan also links to an essay by Stuart Taylor at National Journal that is as mendacious as it is biased. The thrust seems to be that the California supreme court usurped the rights of the people (that one again?) and anything in the opinion that indicates otherwise is a lie. And sadly, it looks as though we're not going to be able to pack the Supreme Court with more right-wing ideologues like Scalia, Roberts and Alito.)