Wednesday, November 5, 2008
California Voters to Gay Couples: No You Can't
Posted by Noah Bonaparte Pais on Wed, Nov 5, 2008 at 7:58 PM
Last night was a great night for everyone except gays and Republicans. Gay Republicans, you’re particularly SOL.
Proposition 8, a constitutional amendment on the ballot in California to reverse a May ruling that had allowed same-sex marriages, passed 52-48. The stifling of civil liberties was especially ill-fitting, considering the human rights gains being shared by all Americans at the top of the ticket. No word yet on the fate of West Banker Ellen DeGeneres and the state’s other 18,000 gay married couples.
In Florida and Arizona, paranoid citizens voted to preempt the issue. And in Arkansas, a measure passed that prevented unmarried couples (no footnote necessary) from adopting. For the United States, it seems, it’s another case of so close, and yet so far away.
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There is a lesson here for gay marriage advocates. If you push your agenda through the courts, thus usurping the democratic process, you will eventually lose at the polls. People respect democratic legitimacy, but they turn their noses when the court makes unfounded rulings and takes public policy decisions out of their hands.
Owen: please remind me when, exactly, racial equality was put to a vote before the American public. Follow-up question: how is this different?
richard, The 14th Amendment, ratified by Congress and by the states, contains the Equal Protection Clause which was intended to guarantee racial equality. It was voted on. Next, it was voted on in the Civil Rights Acts. There are countless pieces of legislation guaranteeing racial equality. So yes, it is different because elected representatives decided issues of racial equality. Now, it is true that the Warren Court stepped in with Brown v. Bd. of Education. However, that decision was correct insofar as the Court concluded that Jim Crow had not secured racial equality, which is guaranteed by the 14th Amendment, contrary to the Court's earlier holding in Plessy v. Ferguson. But in any case, there is an amendment to the US Constitution concerning racial equality. There was no amendment to the California constitution concerning the right of gays to marry. However, there is now, and the California Supremes are largely to blame for that.
Owen: cute, but not quite. The 14th Amendment was never put to a vote before the American public. Though you could argue that congress is elected by American citizens, and therefore federal legislation is indirectly voted on by citizens, I think we're all old enough to know that it doesn't work like that. If the 14th Amendment had been put to a vote before the public, it would never have passed. I'm simply asking why GLBT citizens should be treated any differently. There are other questions to raise (e.g. why is the religious act of marriage being legislated by the government in the first place?), but there's plenty to chat about as it is.
richard, We're a representative democracy. If our representatives vote on something, that issue is said to be democratically decided because we chose the representatives. If you don't think this is legitimate, fine, but then you don't really believe in our system of government. If that's the case -- that you see no distinction between a legally ratified constitutional amendment and an unfounded state supreme court ruling -- then we don't have much else to talk about, because I think your position is absurd. Bottom line: Having elected representatives decide something instills the decision with democratic legitimacy. Conversely, a court ruling that is not credibly based on actual law lacks democratic legitimacy and is liable to form the basis of angry opposition -- as it continues to be with respect to gay marriage and abortion.
On the contrary: I have great faith in our system of government--not just the executive and legislative branches, but also the judicial branch. I'm not the sort of person who views court rulings as "unfounded"; in cases where the law is unclear, America's judges use their skills of reasoning, paired with principles of precedent and stare decisis, to resolve the issues at hand. It's done nearly every workday in courtrooms across America. Also: you still haven't addressed my assertion that civil rights issues don't belong on ballots, but in the courts. If it weren't for court decisions like Brown v. Board of Education, we'd still be marching to Montgomery.
richard, Some court rulings are "unfounded." If the courts suddenly decided that "due process" in the Fifth Amendment meant that all Americans were "due" being "processed" into dog food for watching American Idol, that would be an unfounded ruling. But it doesn't have to be that silly to be wrong -- if there's no amendment dealing with a legal issue, the courts have no authority to rule on it. Furthermore, there is no basis for a blanket statement that the courts should decide all civil rights issues. First of all, you could claim that any issue is a civil rights issue depending on how you characterize the groups affected. Secondly, there is no legal basis for saying that the courts have carte blanche on "civil rights" issues -- even the courts don't claim such a broad mandate. Their mandate in this area is set forth by the state and federal constitutions. And as I have already pointed out, Brown v. Board of Education was based upon a reasonable reading of the 14th Amendment; conversely, these recent gay marriage rulings are based upon an unfounded and ahistorical reading of equal protection. So I still don't see how your argument has a leg to stand on. Basically, you seem to feel very strongly about these issues, and so you want the courts to handle them despite the lack of a constitutional mandate. That's the type of mischief that the courts are supposed to stay out of.
I adore the way you throw around words like "unfounded" and "ahistorical" as if they were somehow objective, factual terms. The courts who have made those decisions in favor of LGBT equality would have quite a few things to say about that. Whole pages, in fact. Regardless of the outcome of this particular skirmish--and it's long from over--the struggle for equal rights for LGBT citizens is en route to being won. So say what you like now: in another 10 or 20 years, we can all look back and compare you to George Wallace standing in the schoolhouse door. That's all I have to say on the matter. I'm going out to enjoy this beautiful weather with my boyfriend of 11+ years. Have at me.
richard, Those would be "whole pages" of philosophical reasoning and blustering, but not substantive legal reasoning. Those courts were driven by ideology, not the text or intended meaning of equal protection in those amendments. It defies reason to suggest that the equal protection clause and its counterparts in state constitutions was in any way intended to make gays a suspect class. There is absolutely no historical evidence whatsoever -- and certainly none pointed out by any court -- to suggest otherwise. Furthermore, I resent the implication that because I oppose judicial activism that I am the equivalent of George Wallace. That would be like me comparing you to King George based upon your wholesale disregard for the rule of law and belief that autocrats should be able overrule democratic majorities without any constitutional mandate. It isn't helpful and you know it. My only point initially was that it was counterproductive to pursue this through the courts and that judicial overreach was the cause of Proposition 8's success. This was trap that blew up in the collective faces of gay marriage advocates in California. If you don't want to learn any lessons from that, fine, but then again you may find that in 20 years things aren't quite the way you pictured them.
