Thursday, August 05, 2010

Everyone lost yesterday in the Prop. 8 case

A federal judge in San Francisco yesterday overturned California's Proposition 8, duly enacted by the voters of that state, because the ban on homosexual marriage violates the U.S. Constitution.

According to the linked AP story (from Yahoo! News), an appeal has already been filed.

Here's what will happen: The 9th Circuit Court of Appeals will affirm the ruling, whether or not that court accepts all of the District Court's reasoning. The case will then go to the Supreme Court where, in a couple of years, on the last day before the Court adjourns for the summer, we will be treated to a 5-4 split on the basic question and six, maybe even seven, opinions.

I don't venture to predict which side will have the five votes in the Supreme Court. I will say that whichever side wins, this country will be the loser.

The country will lose because the "culture wars" will be ratcheted up yet another notch at least until the court rules.

Gay activists are trying to cast their crusade for marriage rights as a civil rights campaign.

But their tactics are inconsistent with those that finally secured the legal rights of African-Americans a century after the official end of slavery. Gay activists will not wait: They are out to establish that gay marriage is protected by the U.S. Constitution -- hell-bent on sweeping aside state constitutions, state statutes, the Federal Defense of Marriage Act and any other laws enacted by the duly elected representatives of the people that contradict their viewpoint.

The gay activists forget, or they never learned, that while many important civil rights milestones were achieved in courtrooms, it took the development of a national consensus before the Civil Rights Act of 1964 and the Voting Rights Act of 1965 became possible. Bull Connor and his ilk had to be sufficiently exposed on national TV for that consensus to form. (And the ultimate victories had to come from Congress, not the courts.)

Who's Bull Connor here? Me? The Pope? I don't think a relationship between two men or two women, however committed and loving, is a marriage. Under any definition I understand, a marriage can only be contracted between a man and a woman. On the other hand, I would be appalled -- sickened -- if someone's life partner were barred from a hospital room during his loved one's final illness because he was not a 'spouse.' I'd be in favor of getting the state out of the marriage business altogether -- in favor of registering domestic partnerships instead -- to prevent that kind of outrage. But no court decision is going to change my mind about what is, or is not, a marriage.

My children may feel differently. Truth be told, I think most of them do feel differently already. I will go the way of all flesh eventually and my children's opinion may become the consensus.

And then the gay activists would have won.

But the gay activists will not wait for consensus. They have moved to cut off debate. A better analogy to what they're trying to do in Perry v. Schwarzenegger would be to the national debate over abortion.

Before Roe v. Wade, the several states had a patchwork of laws. Abortion was virtually impossible in some states; it was available on demand and almost without restriction in others. Other states groped for a middle course. There was no national consensus. But activists took the courts and the courts allowed themselves to be used. The Supreme Court ruling did not create a national consensus. A consensus forms -- it can not be dictated. And, as a result, we still have -- and will continue to have -- the abortion issue as a bitter, festering wound on the body politic.

Is that what the gay activists want for their cause? I can't believe that.


Empress Bee (of the high sea) said...

oh my GOSH curmy, this is an excellent post!!! i am a socially liberal conservative (!) and i agree with every word of this!

smiles, bee

Dave said...

As you know I disagree, with the possible middle ground that governments should stay out of the issue. Make marriage a civil, legal matter and let it be blessed however a couple and their friends and family wish to bless it.

But, you are wrong in attacking "gay activists."

"The gay activists forget, or they never learned, that while many important civil rights milestones were achieved in courtrooms, it took the development of a national consensus before the Civil Rights Act of 1964 and the Voting Rights Act of 1965 became possible. Bull Connor and his ilk had to be sufficiently exposed on national TV for that consensus to form. (And the ultimate victories had to come from Congress, not the courts.)

Before Congress or we the citizens ever thought of focusing on evils of slavery there was Dred Scott and slew of other court decisions. Then came Brown and Loving and a trickle of other decisions, awakening members of Congress and citizens' awareness of the pernicious evil.

The people pushing the legal decisions? Black and liberal "activists." The damn activist pushed the national debate.

And the issue isn't really gay marriage. The issue is whether our country will quit treating minorities differently than it treats majorities. The "will of the people" needs to fail when it discriminates irrationally.

I'll be quiet now.

The Curmudgeon said...

Bee -- thanks.

Dave -- can we agree that there is a difference between "pushing" the debate and strangling it? Because that's what I think is going on in the case of the case over Prop. 8. In an early draft of this post I called this the constitutionality litigation the "nuclear option." That was too strong for me, but this litigation goes for the jugular without allowing, really, for educating or consensus formation.

I truly think part of the problem is that some of our courts have allowed themselves to be hijacked for political purposes. I mentioned Roe v. Wade. You mentioned Dred Scott. Either, I think, might serve as a possible example.

You say that the will of the majority must fail when it discriminates irrationally. But how do we determine rational vs. irrational on a loaded question like this unless we allow a consensus to form -- even one goaded and prodded by activists, yes, but activists who push for legislation not debate-stifling court decisions.

And please don't be quiet. Reasoned debate is in short supply in all sectors of our modern society, including (particularly) the Internet.

Dave said...

I'm not sure why I'm so adamant about this; but, I surely am.

I'm not convinced that the Perry decision will strangle debate, the debate we are having is a consequence of the decision and less civil discussions are being had all over the country as I type. It will continue over the next couple of years as the case goes through the legal hoops.

Roe v. Wade was a tortured decision. It's largest flaw was its arbitrary structure for recognizing the state's, the mother's and the child's interests.

But, it did recognize those interests. And, they were much more effectively discussed in Blackmun's dissent in Bowers v. Hardwick. I've always thought of it as his "here's what I meant to say in Roe" opinion.

I'm not black, I'm not a woman and I'm not gay; and, thus I have no personal dog in any of these cultural fights. Were I any of these things I'd be seething at the treatment I was given by the majority.

I'm not a fan of the "be patient, your reward will be in heaven" school school of thought.

Centuries after courts started intervening for black people, decades for women and more recently for gays, they are still second class citizens in the eyes of many.

Law reflects what people think; but, it can also be normative, forcing people to rub up against each other, where, over time, they find that their fears were unfounded.

When the majority won't enact such laws or insists on keeping discriminatory laws, all the minority has is the Constitution or the promise of Heaven.

Too many people don't "do unto others as" they "would have them do unto you." They don't see the minority as their "brother" so as to "love him as yourself." They will never find consensus unless dragged, kicking and screaming.

You sure you wouldn't rather I be quiet?

The Curmudgeon said...

No, Dave, civil discourse is important.

And you make a valid point that some people will never find consensus unless dragged into it, kicking and screaming. OK. Some people are Class A Jerks. But I don't think unanimity is required for consensus.

You live in the South. Overt racial bigotry may not be dead there (or anywhere) -- but it is far less fashionable. It is driven underground. Under rocks. But the majority of people changed -- or, more accurately, I think -- older people changed and younger people were raised in a different world.

You would say, I suppose, that the changes in the laws made these attitudinal changes possible. I don't know that the laws were possible without a fundamental shift in attitude. Certainly, the attitudes then, even among 'decent, enlightened folk' would surely be seen as Neanderthal today -- but it still took a huge shift in attitude to get to that point where those laws became passable and -- more importantly -- enforceable.

After the War of Northern Aggression, as it is sometimes still known in your adopted neck of the woods, all sorts of civil rights laws were imposed on the conquered population. These didn't last. When the federal troops pulled out at the end of Reconstruction, the laws protecting freedmen were quickly repealed and Jim Crow was born.

Laws alone don't accomplish beans if there isn't a consensus that the law is just and fair and worthy of enforcement. Unless, of course, the laws are made to stick... with bayonets.

You write, "Law reflects what people think; but, it can also be normative, forcing people to rub up against each other, where, over time, they find that their fears were unfounded."

I agree.

But, as with the civil rights laws, once a majority recognized that the laws were necessary, then those laws could perform in a normative way. In other words, people who accepted the civil rights laws of the 1960s understood, on some level, that all Americans should be able to vote and serve on juries and drink from the same water fountains and eat at the same restaurants and so forth -- but I'll bet most of 'em could not have imagined Barack Obama coming along barely 40 years later.

So, I still say, consensus first. Though we may have reached a chicken and egg stage of this debate.

So I have a question for you: Whatever happened to the political question doctrine anyway?

Dave said...

As to your closing question, I think Baker v. Carr happened (I had to Google to make sure I had the style right - I'm pleased with myself that I did).

I think we are at the chicken and egg part. I'm going to resort to a Jefferson aphorism.

"God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. ...

And what country can preserve its liberties, if its rulers are not
warned from time to time, that this people preserve the spirit of
resistance? Let them take arms. The remedy is to set them right as
to the facts, pardon and pacify them. What signify a few lives lost
in a century or two? The tree of liberty must be refreshed from
time to time, with the blood of patriots and tyrants.

It is its natural manure."

We can both take refuge in parts of the lesson. For me, constitutional litigation can be a form of bloodless renewal of liberty.

The Curmudgeon said...

Hmmmm. I now see that the comment that I thought was eaten had somehow posted after all.

Anonymous said...

Here is my biggest question: In a country founded on the principle of separation of Church and State, should the State have any part in the Rite of Holy Matrimony?
I believe in God and believe I need God's help. Clearly the founders of this country did too. However, the purpose behind their convictions was to avoid the possibility of a State religion emerging as it has in other countries... ergo persecution. That is one of our fundamental principles. I would like to be free to worship according to choice, not necessarily take God out of the equation as was built into the basic premise...and was the founders intention.

Nevertheless, when my ecclesiastical leader can sign a marriage certificate for the State, with no other qualifications, no legal office, no ratification...I see a gray area between Church and State. Should the State be in the marriage business at all?

Marriages in other countries in which I have lived, require a couple to go to the court house for a civil union contract/ ceremony, not unlike getting a marriage license. If the couple chooses, they can seek religious ratification of their union. Marriage is the word we use for that. Many churches call marriage, the Rite of Holy Matrimony (By the way the root word... Matri means mother...and the rite would seem to be an order to sanctify a couple's union for the purposes of preproduction.)

To date, a State marriage is constituted as " one man one woman." The same term is used for churches and is intended for the procreation of children under God's auspices. Clearly that is upsetting to some (by no means all) who do not fit within it's parameters.

I wonder who would be offended if America separated it's legal jurisdiction from that of religious institutions. Can two (and only two) consenting adults enter into a legally binding union with all benefits sanctioned by the State and call it something else? Does it have to be called marriage...which is the term that is currently ratified but which linguistically applies to the merging of many things other than humans?
Constitutionally, what is the way foreword? Is all this wrangling over a word, or the rites (and penalties) it entails?

The last thing I want to do is offend any group. I don't feel hate. I don't feel fear. In fact, I empathize with the emotion of the situation... But shouldn't the State concern itself with legally binding agreements... And Churches with spiritually binding ones? Do we have to mix them up just to avoid hurt feelings and emotion? Are we wrestling over semantics... At great cost to the tax payers? You are right it may even be serving to be more divisive.

The Curmudgeon said...

Anon -- Thank you for your thoughtful comment. I particularly like the question, "But shouldn't the State concern itself with legally binding agreements... And Churches with spiritually binding ones?" That's a nice way to put it and I may well steal it.