Here's an article by B. Daniel Blatt (a/k/a GayPatriotWest) on the Republicans' attempts to "reframe" the question of same-sex marriage. I think it suffers from one fatal flaw, as exemplified in this statement:
Many conservatives believe (and judicial decisions in several states bear them out) that liberal jurists have just such a “personal agenda” that these jurists will discover a “right” to government recognition of same-sex marriage in the penumbrae of the federal constitution. By asking the president’s judicial nominees to address this supposed “right,” Judiciary Committee Republicans could reframe the issue not as one of gay marriage per se, but as one of separation of powers — whether the legislature or the judiciary should define gay marriage.
There are a couple of problems I see here. The first is one that I've mentioned any number of times: You need to ask the right question. In this case, the question is not whether there is a "right to government recognition of same-sex marriage," but whether there is a "right" to government recognition of any marriage whatsoever. I've read the Constitution any number of times, especially the Bill of Rights, and I don't recall any such provision. If we're going to concede that the right to marriage (to use a short form) exists -- and the courts have held that it does -- it falls under that "penumbra" that so-called "strict constructionists" love to hate. And if there is a right to marriage, then it must be a right held by all citizens, under the due process provisions of the Fourteenth Amendment -- unless the government can show a compelling reason to limit it. The government has not done so, to my knowledge -- and I've followed these cases fairly closely for years.
This is sort of funny:
The American people would rather courts didn’t resolve such social issues, preferring the matter be left to the elected legislature.
First, all else being equal, the American people would rather not deal with these issues at all -- they're happy with the status quo, which is why it's the status quo. Second, when elected legislatures do take action to approve same-sex marriage, the usual suspects -- the conservative anti-gay "religious" organizations -- start muttering about "elites" taking the decision away from the people. There's an old controversy here between me and Blatt on popular sovereignty: the idea that the "will of the people" is some sort of ultimate authority in this country is structurally indefensible, and I mean that quite seriously. That is reflected in the responsibility of the courts to uphold the rights of disfavored minorities. (It's also implicit in the fact that we have a Bill of Rights -- if the "will of the people" could be trusted, we wouldn't need it.) He and I don't necessarily see eye-to-eye on this (chuckle), and I won't accuse him of the kind of radical anti-Americanism you'll find from the likes of Matt Staver or Peter LaBarbera, but as I see it, that's the basis.
No matter what the American people would rather, it is the courts' job to resolve such issues. One need only do a fast review of the history of the judiciary in this country to realize that. As a pre-emptive counter to the argument that court decisions to not change attitudes, I want to point out that none of these phenomena exist in a vacuum: there is a synergy involved here that partakes of social attitudes, legislative actions, and court decisions, and to try to separate them is a fool's errand: you're not going to come up with a correct analysis. Would the black civil rights movement have happened without Brown vs. Board of Education? Probably -- eventually. But that decision gave the movement a legal rationale. When the Civil Rights Act of 1964 was passed, and the Voting Rights Act the next year, most people in the country were opposed. Anti-discrimination laws have generally run ahead of social attitudes, but no one can tell me that they have no effect. Most of those anti-discrimination laws have somewhere in their genealogy a court decision. And as attitudes change, it becomes easier for legislators to do the right thing. (It goes without saying that most legislators don't have the cojones to buck prevailing attitudes, and to think that constitutional considerations are high up on their list of concerns is something worse than ingenuous.)
Back to reframing:
Should the GOP reframe the issue (as many have tried) as one of separation of powers, with our party favoring a legislative resolution, this can turn this issue to their advantage without unnecessarily antagonizing supporters of same-sex marriage.
I think there's a mistaken assumption here. Court actions on civil rights issues are not generally the result of some liberal deciding that it's time to screw the majority. They happen out of necessity: parties to a suit have no other option. And there is the fact that, conservative wishes to the contrary, that's what the courts are for. (Well, one of the things.) The reality is simply that everyone would prefer a legislative resolution but that's not always an option. (Blatt leaves out the fact that the California legislature has twice passed bills legalizing same-sex marriage, only to have them vetoed by the Republican governor. Note that Gov. Lynch of New Hampshire is threatening to veto that state's SSM bill unless it incorporates stunningly broad "protections" for religious objectors. And note also the fact that the legislature in Vermont legalized SSM by overriding the governor's veto. A veto is only one pitfall of the legislative process -- it's subject to a lot of deal-making that has nothing to do with the desirability of a particular bill as policy.) Parenthetical concerns aside, however, yes, it would be a wonderful world if our legislators would just say "OK, this is not fair and we should fix it." The reality is that they have to be goosed.
And in regard to social attitudes, Blatt notes something that I think undercuts his argument:
In 2004, after Massachusetts’ highest court ruled in favor of such recognition, thirteen states voted for ballot initiatives designed to thwart such judicial recognition, with 73% of North Dakota voters favoring the initiative.
Two years later, however, after the highest courts in New York and Washington ruled against such recognition, only 52% of voters in South Dakota, demographically similar to its neighbor to the north, favored the initiative.
I don't see this as a reflection of the voters' reaction to court decisions so much as a general trend that's become more and more prevalent around the country: Prop 22, which the California Court overturned, passed with 62% of the vote. Prop 8 managed to pull 52% after an intensive campaign by the Mormon Church and the Knights of Columbus. The Arizona provision racked up similar numbers: we're long past the days of 70% majorities in favor of "traditional" marriage.
For the GOP to reframe SSM as an issue centered on separation of powers is at best a stop-gap, and not terribly persuasive. And to be quite honest, after the Bush II years, Republicans framing anything as an issue of separation of powers is hysterically funny -- or would be if it weren't so patently self-serving.
I quite honestly see this as a matter of the Republican party having painted itself into a corner: it's become dominated by the socially regressive religious conservatives, who are increasingly losing the support of the Great Middle, and while Democrats have done a half-assed job of it, they've managed to assume at least partial ownership of gay civil rights (in spite of Obama's back-pedaling, and mostly through inertia). I have no solutions for them, because I don't have any particular hopes for their future as a party (although I truly wish I could be presented with candidates who would cause me at least to consider going back to splitting my ticket, which was my habit until about 2000, when I became a "lesser evil" voter) -- the collapse of a political party until it reinvents itself seems to be some sort of natural process. The idea that rebranding gay civil rights as a matter of separation of powers to revitalize the party doesn't really strike me as viable -- unless the party is prepared to toss the Dobson Gang overboard. Good luck on that.
Update:
If the Republicans want to rebrand themselves, they've got a long way to go. From Alexander Bolton at The Hill:
Sotomayor also claimed: “For me, a very special part of my being Latina is the mucho platos de arroz, gandoles y pernir — rice, beans and pork — that I have eaten at countless family holidays and special events.”
This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo — pigs’ tongue and ears — would somehow, in some small way influence her verdicts from the bench.
Curt Levey, the executive director of the Committee for Justice, a conservative-leaning advocacy group, said he wasn’t certain whether Sotomayor had claimed her palate would color her view of legal facts but he said that President Obama’s Supreme Court nominee clearly touts her subjective approach to the law.
“It’s pretty disturbing,” said Levey. “It’s one thing to say that occasionally a judge will despite his or her best efforts to be impartial ... allow occasional biases to cloud impartiality.
I'm not sure if that was satire or not.
Conservative critics say that a willingness to rule on the basis of personal values instead of the law and legal precedent is at the core of judicial activism. And some Senate Republicans have said a nominee with a clear propensity toward activism would deserve a filibuster.
Odds on these are the same people who think Judge Roy Moore is a top-notch legal scholar.
And this landed in my e-mail, courtesy of Bill Wilson's The Dailiy Grind:
Barack Obama needs to go back to the drawing board and see if he can come up with a Supreme Court nominee who is something other than a self-declared racist termagant.
What a pathetic bunch of losers.
No comments:
Post a Comment