More on Jonathan Rauch's comments on the Connecticut SSM case, Kerrigan vs. Commissioner of Public Health:
Rauch makes a point of noting that Connecticut has passed civil unions legislation that gives same-sex couples the same legal rights as married couples:
It's a defensible analysis. But here's the thing: like California, and very much unlike Massachusetts in 2004, when that state's Supreme Court ordered SSM, Connecticut was not proposing to give gay couples nothing as an alternative to marriage. To the contrary: in 2005, the state legislature enacted civil unions, granting every state right and responsibility of marriage, and withholding only the designation "marriage" itself.
Rauch ignores the very pertinent point that civil unions are not equal to marriage. From the opinion:
We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians,1 and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.
This was also a key element in the California decision: the term "marriage" in and of itself constitutes a value that is left out of alternative, newly created institutions such as civil unions and domestic partnerships. To miss that point is to miss the whole point of the debate.
Rauch:
As the smart dissent, by Justice Borden (joined by Justice Vertefeiulle), notes, most political observers in Connecticut agreed that the conversion of civil unions to marriage was just a matter of time, and "sooner rather than later." The state's steady stream of pro-gay legislation, topped off by civil unions, makes the idea that gays need the court's protection from a hostile majority seem obsolete. So says the dissent, and I'd add that, as a political matter, we ought to be maturing beyond official victim status, not welcoming it.
This is a point that parellels my comments in my brief prior post: Rauch is conflating the political and the judicial here, which is something that, all propaganda aside, we assiduously try to avoid. It's a matter of process: The court isn't allowed to say "Well, it's going to happen eventually, so we'll just wait." That is not in its purview (although several courts have tried that tack on related issues, and New York and Washington state actually avoided the issue altogether and threw it back to the legislatures by the simple expedient of asking the wrong questions.) Rauch's criticism of the court and its decision seems to be based on this idea that the courts should be content to wait; my contention is simply that they're not really allowed to do that. They have to decide the cases before them, particularly if there are fundamental rights issues involved. (We see a similar process going on right now in New Jersey, where the court told the legislature to come up with something -- very much akin to what happened in Massachusetts -- and the legislature came up with civil unions, which are now being seen as not equal to marriage. This one will be the result of legislative action, but the court has already spoken: this is just the court's instruction working itself out.)
Rauch again:
Second, the issue before the court was: Is man-plus-woman a discriminatory restriction on marriage, or is it part of the very definition of marriage? I, and probably most visitors to this site, hold the former view; but it's foolish to pretend that the notion of same-sex marriage isn't newfangled. If the people of Connecticut aren't quite ready to go all the way to changing what many regard as the core definition of marriage, should it be unconstitutional for them to compromise on civil unions while catching their breath? In effect, what the court has done here is to make patience illegal.
Back in May, commenting on the California decision ("Hold the Champagne"), I called this kind of all-or-nothing thinking "legal totalism", which,
it seems to me, is tailor-made to rule out any kind of accommodation, even if that accommodation gives gay couples most of what we need with the promise of more to come (soon). I think SSM is a better policy than civil unions. And I think denial of marriage to gay couples is discriminatory. But to make even a well-intentioned compromise ILLEGAL strikes me as a step too far, and a good example of how culture wars escalate.
And now, once again, a court pulls the rug out from under a compromise that gives us 95 percent of what we want uncontroversially.
First off, the whole "patience" thing is bizarre. I think I see his thinking here -- it would be nice if we all just waited our turn like good boys and girls, and eventually papa will give us something nice. Y'know what? I wasn't a particularly good little boy. Secondly, we've seen where that has gotten us -- and it doesn't seem to matter which party is in power. Somehow, when it comes to gay rights issues, the Republicans just laugh in our faces, and the Democrats can only deal with one issue at a time -- not ours.
I'm also bemused by the term "legal totalism." What is the alternative? "Legal partialism"? I answered that in my earlier post: can you imagine a court coming down with a decision that "all are nearly equal under the law"? Sorry, but constitutions tend to be written in absolutes.
I really can't figure out what Rauch's baseline is here. Is it simply that he wants to avoid controversy? And how do we make any progress that way, particularly since the controversy, when all is said and done, is not of our making? I hate to cast it in these terms, but we are in a fight. Trying to be quietly persuasive is going to get us exactly nowhere when we have very well-organized and well-funded opponents who are determined that we get nothing -- the Dobson Gang is not afraid of controversy. That's how they make their money.
As for the definition of marriage, I don't understand why Rauch is allowing himself to fall into the trap of thinking that there has always been one fundamental definition of marriage. I'll even grant that the idea of same-sex marriage is "newfangled" as such things go. (There are those who would argue quite convincingly against that assessment, starting with anthropologist Patrick Chapman and sociologist Stephen O. Murray.) Anyway, even granting that, if the traditional definition of marriage is one man, one woman, so what? Like we've never discarded traditions in this country? Like our basic system of government was traditional in the eighteenth century?
Rauch:
But at the moment I wish nothing more than that our side would recognize the court-driven SSM strategy for what it has become: exhausted and counterproductive.
I'm dubious. Massachusetts still has same-sex marriage, a constitutional amendment there failed, Proposition 8 in California will pass only if the Mormons manage to pack the polls, and both New York and New Jersey will probably have same-sex marriage laws on the books within a year. Watch for Vermont to follow suit. And I can hardly wait to see what the court in Iowa decides. The "exhausted and counterproductive" part just doesn't hold water. As for it being a "strategy," whose? The major gay rights organizations were dragged kicking and screaming onto this particular bandwagon, and still haven't been very useful. Rauch's implication seems to be that there's some master plan in place, when it's really been an ongoing battle waged mostly by individuals, starting in Hawai'i in 1993. And considering the way things have been going the past few years, I think the tide has turned.
(Side note: I discussed Rauch's comments on the California decision here -- (scroll down to the section titled "Compromise.")
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