Wednesday, May 21, 2008

Gay marriage is coming . . . and the sky will not fall

Reaction to the decision of the California Supreme Court last week to overturn a 2000 state referendum outlawing gay marriage has, predictably, fallen into three camps.

1. The "Chicken Little" conservatives, disproportionately comprised of religious wackos, who have decried the ruling as the worst kind of "judicial activism." This is polite conservative-speak that really masks their contempt for gay marriage behind a respectable legal whipping boy -- the time-honored conservative mantra that judges should not overturn the will of the people by "imposing" their "politically correct" views on a legislative majority that properly voiced its opinions through the political process. Now that gays can get married in California, according to standard wingnut wisdom, polygamists will demand the same "right" or claim discrimination. Even more treacherous is the argument that banning discrimination against same-sex couples will make it legally impossible to treat incest as a criminal act. Add to this nightmare scenario the "very real" possibility that fathers and daughters and sons and mothers and first-cousins, not to mention those three and four times removed, will be lining up at City Halls around the state demanding legal recognition of their "relationships."

2. Proponents of gay marriage who believe there is nothing really all that different about a legal ban on same-sex marriage and the old laws prohibiting "miscegenation" -- the old term for "interracial" marriage -- and welcome the California court's decision to overturn the 2000 ban, which, by the way, came before the state legislature had twice passed laws permitting gay marriage, only to have Governor Arnold Schwarzenegger veto both of them. So, as Dahlia Lithwick of Slate pointed out, California is the only state in the country to legalize and ban gay marriage at the same time. The Court's 4-3 decision overturns an amendment that thwarted two legislative efforts to legalize gay marriage, bills that Governor Schwarzenegger vetoed. Now, says Schwarzenegger, he will "respect the court's decision and as governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling." Rather than play "The Terminator," the governor has decided to play "Kindergarten Cop" and encourage the good people of California to respect their differences.

3. The Washington Post editorial page, which, true to form, says that it's probably a good thing that gays can get married, but the California court made a mistake by "interfering" with the progress that the state legislature had made on the matter. As the avatar of "sensible" liberalism, the Post never met a progressive innovation that it liked unless a member of the Republican establishment has signed on in support of it. Is dangling candy in front of a baby and then taking it away cruel or kind? Well, that depends on whether dangling the candy was the result of a "bi-partisan" consensus achieved after negotiation between respected congressional leaders from both sides of the aisle, or the product of a bi-partisan commission headed by Madeline Albright and Bob Dole, or deemed respectable by "respected journalists" such as Tim Russert, Chris Matthews or Wolf Blitzer. And . . . and . . . if David Brooks decrees gay marriage "acceptable" from his perch on the New York Times Op-Ed page, it's time to take that issue to the bank.

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Just what is so horrible about gay people getting married? Even worse, who cares what religious wackos or "traditionalists" or anyone else who opposes this basic human right for gays believes? Someone who opposes gay marriage has every right to oppose gay marriage, just like someone who opposes whites marrying "outside" their "race" has that same right. And while there are more Americans than we would like to acknowledge who are uncomfortable with members of "their" race or religion marrying a non-member, the day has long passed when you could expect some sort of legislative audience for a modern miscegenation law. All the arguments mounted in support of racially discriminatory marriage laws -- that they were "necessary" to maintain racial purity, prevent white people from dumbing down their intelligence (that's true) or simply reflected the culture and values of the communities that enacted them -- are now justifiably viewed as bogus in mainstream public opinion.

Roughly 50% of heterosexual marriages end in divorce. Will gay marriage increase the number of heterosexual marriages that don't survive or increase their longevity? Is there any of finding out?

Of course, the real question is . . . does it matter? No.

The courts, whether the United States Supreme Court, a federal court, a state supreme court or a trial court somewhere in the middle of nowwhere, are, according to conservatives, always at fault when they decide cases establishing rights for groups previously unprotected or discriminated against. "Judicial activism" is simply another term for "liberal judicial activism," which is simply another term for judicial decisions that anger conservatives. Of the California Supreme Court's seven members, six were appointed by Republican governors. Seven of the nine justices who currently serve on the United States Supreme Court were appointed by Republican presidents. And as I have written before, not a single major decision since 1969 expanding the civil rights and liberties of gays, religious minorities, racial and ethnic minorities, women, political dissenters, pornographers and so on has included a majority of justices appointed by a Democratic president. How many people know, for example, that, of the seven justices who formed the majority in Roe v. Wade and Doe v. Bolton (1973), five were appointed by Republican presidents? Three of Richard Nixon's appointments to the Court -- Harry Blackmun, Warren Burger and Lewis Powell -- voted to strike down the Texas and Georgia laws at issue in those cases? Pick any decision after that one through the present day, and Republicans have always formed the majority of justices within any majority voting to uphold a civil rights or liberties claim.

Really, what the California judges did was . . . well, judge. Perhaps the judges took into account the state legislature's action on gay marriage. Perhaps it took into account public opinion. Perhaps it looked around the world and saw that the old, discriminatory prohibitions on gay marriage are falling by the wayside, even in such countries as Spain and Brazil. Perhaps they looked at number of different factors, including the meaning of equality in 2008 as opposed to 1998 as opposed to 1978 as opposed to 1928. Perhaps they took into account a variety of factors and decided this was the most appropriate outcome.

Political institutions are, by nature, activist. We created them to do things, and not all institutions are motivated by the same concerns. Legislatures may be motivated by principles of social justice or short-term (re-election) or long-term political considerations (higher office). Whatever combination of forces leads legislatures to enact (or not enact) laws may not always have a relationship to the more abstract goals of liberty and equality. The California decision doesn't make anyone do anything they don't want to do. All it said was that one gay person could marry another. It did not sanction gay polygamy or gay incest or gay pedophilia or anything else from the parade of horribles that homophobes trot out against gay marriage. And that seems like an eminently prudent, thoughtful and considered decision, the very essence of what judging is all about.

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