November 11, 2008

Why Jeffrey Rosen thinks the issue of gay marriage should be relegated to democratic decisionmaking.

Jeffrey Rosen writes:
[W]hen the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches.

In my view, gay marriage, like abortion, is one of those areas. The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear. Although bans on gay marriage are (literally) a kind of sex discrimination, it's not intuitively obvious to most people that the bans should be viewed as an effort to promote male supremacy.
Rosen is talking about male supremacy because the primary constitutional argument for recognizing a right to same-sex marriage is that to ban it classifies individuals by whether they are male or female. Obviously, the bans involve heterosexual supremacy. But, here, Rosen asserts that classification by sexual orientation is not entitled to heightened judicial scrutiny. That's a point of legal doctrine, but why is it correct? As far as I can tell, Rosen thinks it's correct because he already believes that this is a matter best left to political decisionmaking.

Then the question is how to win majority support:
[A]s the social conservatism of blacks and Hispanic voters suggests, it wasn't enough for California voters to see the reality of gay couples in meaningful marriages. This suggests the challenge, in the short term, is greater that many gay marriage supporters hoped. At a Yale Law School conference on the future of reproductive rights in October, Pam Karlan of Stanford predicted optimistically that the gay rights movement was doing better than the pro-choice movement because "gays have come out of the closet" while "women who've had abortions have gone back in the closet." The third of American women who have had abortions, she suggested, should consider discussing their experiences for the good of the movement as a whole.
How did that follow? Women have their abortion rights. Why should they act more like people who don't have recognized rights? There is concern that abortion rights could be lost, so there is a continuing political issue and potential for a new all-out political battle.

But the question was what more could gay people do to win favor in the political arena? Rosen doesn't really have an answer. He concedes that many people have strong moral views that are not going to change and asserts "the future of gay marriage will be determined not by judicial activism but by demography." But why? Because he thinks it should?

Why should a minority group that perceives itself as oppressed accept the will of the majority? Why should the intransigency of the political majority convince them that they should refrain from using the courts?

60 comments:

tim maguire said...

As I read the Rosen excerpt, inter-racial marriage bans are different from same-sex marriage bans because...because they are.

It's a pretty typical argument.

dbp said...

"Why should a minority group that perceives itself as oppressed accept the will of the majority?"

alternatively:

Why should the majority accept the will of the minority?

The problem, probably intractible, is that decisions by court fiat will be unpopular and strike many as illegitimate. The democratic route will have legitmacy, but will either not happen or not happen soon enough to please the "oppressed".

mjsharon said...

Exactly dbp. If you want gay marriage to STILL be a divisive, hot-button isue 50 years from now, seek redress in the courts. That's what's happened with abortion, unfortunately (and I say this as an abortion and gay marriage supporter).

Tim Maguire - as much as you and I may not like it, there are perfectly respectable and long-held moral and religious objections to gay marriage. Not so with interracial marriage.

Ann Althouse said...

dbp: "Why should the majority accept the will of the minority?"

The question is: What is the realm of the individual? Or: What are rights?

Like you, Rosen thinks rights only work when the majority is almost in the same place (or when they are very clear in constitutional law). Do you think rights are so limited?

Maguro said...

"...the future of gay marriage will be determined not by judicial activism but by demography." But why? Because he thinks it should?

Presumably Rosen is referring to the exit polls indicating that voters under 30 rejected Prop 8 60%-40%. Judicial activism - whatever merits it may have - tends to provoke populist backlashes and waiting for gay-friendly demographic shifts may be a more prudent strategy in the long run.

Of course, political views are not static and that same cohort may vote differently in ten years. Or move out of state and be replaced by immigrants with different attitudes towards gay rights.

William said...

I am left handed. The world is designed for the comfort and convience of right handed people. Thus is has always been and thus it will always be. Perhaps the cruelest part of this fate is that were I to define myself as a member of an oppressed group, I would receive nothing but condescending smiles. The fact that left handed people at all ages of life die in larger number than right handed people is greeted with a bland shrug. I am pushing to get the Social Security entitlement age lowered for left handed people in sensitivity of our earlier deaths. This fair minded proposal has met with predictable ridicule from rightie bigots and self loathing lefties. Our only hope is that a fair minded jurist takes up our cause.

Sofa King said...

The question is: What is the realm of the individual? Or: What are rights?

But what right is at stake here? As best as I can tell, it's the "right" to be socially accepted. That can't sensibly be an individual right.

dbp said...

In theory and for big stuff I believe that we are endowed by our creator (or by our fundamental nature) with certain inalienable rights. But this doesn't get us very far toward making laws since there can be lots of dispute about what these rights are.

From an operational standpoint, we have those rights which we can get others to recognise. For instance, in a theoretical sense women have always had a right to vote. But they didn't get to actually vote until first: Enough people became convinced that it was right and then second, that laws were changed through the political process.

NYU Law Libertarian said...

"What is the realm of the individual? Or: What are rights?"

Marriage is not a "right" it's a benefit given by the State. Or, at least, that's the part of "marriage" that gays are trying to get their hands on.

There are two ways to go ...

One: give the benefits currently running to heterosexual couples to homosexual couples. This will still leave out single individuals and polygamists. Or,

Two: Remove the benefits running to heterosexual couples thereby creating "equality" by not favoring anyone.

The second option will leave marriage in the "realm of the individual" as they can structure their relationships how they want.

Scrutineer said...

Why Jeffrey Rosen thinks the issue of gay marriage should be relegated to democratic decisionmaking.

Democracy is inferior to judical rule?

Scrutineer said...

*"judicial" even

Aluwid said...

An inter-racial marriage ban would only make sense to non-racists if blacks and whites were unable to reproduce (as same-sex couples can't) or were very likely to have genetic abnormalities (as incestuous couples are). But there is no genetic barrier within an inter-racial relationship that prevents procreation, so there is no reason to exclude them from marriage (other than racism).

The area of disagreement is not "gay marriage" as homosexuals are as free to marry a member of the opposite sex as heterosexuals are. The disagreement is about allowing same-sex marriage (regardless of orientation).

And the true core of the discussion is not civil rights, it is whether marriage should be centered around procreation or should just be an arbitrary state-sponsored expression of commitment. If it is centered around procreation then same-sex marriage makes no sense and any discrimination inherent to a ban on same-sex marriage can be laid at the feet of Mother Nature.

Simon said...

Call me a cynic if you will, but I find it hard to believe that this has anything to do with gay marriage. Think about what we know about Jeff Rosen, and think about the context of the time in which this is written. I don't recall Rosen saying anything remotely like "when the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches" when the political branches were controlled by Republicans. Rosen is saying that the courts should stay out of Obama's way, he's just throwing a cause he might be expected to be sympathetic to under the bus as a distraction, to make it look as though his point is neutral. And he does so, of course, knowing full well that the court is poised to do exactly what he urged them not to, so it's not even a good-faith concession. He really is an oily little toerag.

dbp said...

NYU Law Libertarian said...

"...Marriage is not a "right" it's a benefit given by the State. Or, at least, that's the part of "marriage" that gays are trying to get their hands on..."

Yes, I think this is correct. Further, I think it is indisputably correct that marriage (traditional definition)is beneficial to society, so it makes sense for it to be encouraged via favorable legal treatment.

The question should be and arguments should be centered upon whether homosexual marriage is good for our society.

Kirby Olson said...

There are a few other bans on marriage that may be relevant.

Brothers and sisters can't be married.

Fathers can't marry daughters.

The idea seems to be that if you can't have a viable child, then you can't get married.

A father and a daughter can have a child, of course, but the child is likely to be genetically hinkmeistered.

This has gotten odder I admit because now gay women can have children via sperm banks, and now too there is the adoption route that is open at least in some states.

It's a very difficult issue.

What I hear many Christians arguing is: a child has a right to a mother and a father.

But of course more and more that's not the case -- some 40% of mothers and fathers are divorced.

It's a messy issue. Somehow, however, I think if you allow gays to marry, you must also allow any two who are "in love" to marry -- including identical twin brothers (hey, we love each other, gotta problem?), and then of course a brother and a sister who are in love, an uncle and a niece, or just any combination.

Otherwise, how are you going to word it?

downtownlad said...

It's absolutely irrelevant what the majority thinks.

Gay marriage bans are written into State constitutions. So even in the future, if a majority of people favor gay marriage - it won't matter. It will still be illegal. Because you will need super-majorities in many of these states to ever make gay marriage legal.

In other words - it will never happen unless the courts intervene.

America is a bigoted country - and only stupid faggots stay there and tolerate that crap.

Aluwid said...

Kirby,

"I think if you allow gays to marry, you must also allow any two who are "in love" to marry"

What is so special about the number 2 other than the obvious answer that deals with procreation?

If procreation is removed from the equation then a limit of 2 is arbitrary, heterocentric, and unfair to more flexible relationships.

(Note that I don't favor this result, just as I don't favor same-sex marriage).

PatCA said...

"Why should a minority group that perceives itself as oppressed accept the will of the majority?"

That's a political question with a political answer: because the majority will continue to assert its dominance through legislation. Politically, the gay marriage lobby should wake up and realize that the old paradigm of Bad White People versus The Oppressed was blown apart by Prop 8's win. They need to rethink their strategy. They are picketing Christian churches exclusively, so it seems to me they still don't get it.

What are rights? That's a theoretical question. Which kind of rights? Marriage is not an inalienable right; it is a social right conveyed by the state. The individual gay person still has the ability, through contract, to order his/her life however he/she wants. If they want marriage, it seems to me they need to convince a new strata of voters with new arguments.

Or, if they are truly radical, why don't they get together with their "enemies" and find some common ground for the sake of the social fabric?

Simon said...

Kirby Olson said...
"It's a messy issue. Somehow, however, I think if you allow gays to marry, you must also allow any two who are 'in love' to marry -- including identical twin brothers (hey, we love each other, gotta problem?), and then of course a brother and a sister who are in love, an uncle and a niece, or just any combination."

Why stop at any two? Why not Adam, Steve and Eve, to co-opt the popular bumper sticker? That's the problem that I have with it: that once you overthrow the authority of tradition to define marriage, it's gone, and you have opened the door not only to same-sex marriage, which I don't have much of a problem with, but to polygamy, which is utterly unacceptable. It's not so much a slippery slope as a trapdoor.

But it's a trapdoor - perhaps pandora's box is an even better analogy - that the court is going to open very soon.

Pastafarian said...

"Why should a minority group that perceives itself as oppressed accept the will of the majority?"

Yikes.

Is this a revolutionary call-to-arms, for small business owners to rise up against the coming oppression of the Obama administration?

Hyperbole? I'm not so sure -- you're saying that gays are oppressed because they can't marry and get that sweet tax break. But small business owners filing as sub-chapter S corporations already have to pay higher taxes than anyone, regardless of the business owner's real personal income. Obama has spoken openly of the more righteous choice of working for non-profits -- no other group has been openly, officially vilified. And the next 4 years promise to be just one big shit storm raining on our heads.

But on a more serious note: It's quite disturbing that a law professor apparently considers the courts to be just one more way of ramming home your goals if you can't accomplish them democratically. That's what this post sounds like; there's no discussion of whether they would have a valid legal argument to establish gay marriage on constitutional grounds.

Do gay marriage proponents have a good constitutional argument? I really don't know, and I'd be interested in your opinion, and in the opinions of the commenters here that know much more about law than I do.

Simon said...

downtownlad said...
"America is a bigoted country"

I told y'all that electing Obama wasn't going to put an end to this nonsense about America being bigoted. Some people have their identity totally wrapped up in being a victim of the irresistible force of a bigoted society. They cling to it like Linus and his blanket.

Richard Fagin said...

William's comment is illustrative of why using courts to define "rights" is sometimes counterproductive and creates the impression of illegitimacy. I'm left-handed, too. The only real "suffering" I encounter is inconvenience. With relatively few exceptions, and in California substantially no exceptions, the rights of gay couples are the same as heterosexual married couples. There is only inconvenience, if any.

Prop. 8 supporters feel with some justfication that gay marriage proponents in effect got almost all of what they wanted. The last little bit gay couples want is perceived, again with some justification, as just being "in the face" of heterosexual people. They want it to prove a point, not to address a substantive disability. The response of many ordinary people is a collective "fuck you." It was as predicatable as what time the sun comes up. Blacks didn't get what they deserved through the courts. They got it through the legislative process (Civil Rights Act of 1964, Voting Rights Act). Gay couples, not suffering anything the incredible evil of Jim Crow, would do well to shut up and do the same.

Host with the Most said...

The question is: What is the realm of the individual? Or: What are rights?

You know good and well Ann, that the state can regulate some "rights". Driving is not a "right", though we talk as if it is. We do not allow blind people to drive - that is discrimination that serves the overall interests of the state, of society. Driving is therefore a "privilege".

The state has every right to favor one relationship - a man and woman with children from that marriage - over every other relationship. That relationship is the strongest bond for stabilizing society and growing a continually stable society. The failures of society to hold that relationship in higher esteem - loosening of adultery laws and lessining of ostracization of out of wedlock births, for example - does not remove the societal interest in discriminating in favor of traditional families. Race has no effect on this. Gender has Everything to do with it.

Marriage is a privilege, not a right. Changing that will do far more damage to society than most want to face up to.

Ann Althouse said...

I'm deleting some bad comments. But I need to say: Read the post!

I did not say I thought it was better for courts to act in this area. I am asking questions about law for your contemplation, not saying how I would analyze the doctrine. I am also critical of the conclusory assertions Rosen makes.

Ann Althouse said...

Banned commenters will be deleted unread. Get a life.

former law student said...

here, Rosen asserts that classification by sexual orientation is not entitled to heightened judicial scrutiny. That's a point of legal doctrine, but why is it correct?

Let's try to fit homosexuality into the heightened scrutiny framework.

1. Is homosexuality immutable? I would say yes: The homosexuals I know have been homosexual for life, even those who were adults when expressing homosexuality was a crime, when beating up "fairies" was socially acceptable, even through the diseased pariah era, who survived to this day. Surely if they had a choice they would pick the sexual orientation less likely to get them jailed, beaten, or killed from a loathesome disease.

2. Do homosexuals share a history of discrimination? Yes, look at the events leading up to Stonewall, anti-sodomy laws, the very fact that homosexuals cannot pair off and legally marry.

3. Is the group homosexuals politically impotent? Yes, because the majority of the population in California can take their rights away.

4. Are homosexuals a discrete and insular minority? I would say that gays and lesbians are actually two discrete and insular minorities, defined by who they're attracted to, want to have sex with, love, and marry. I first discovered the discrete insularity of homosexuals by revisiting a bar which in the meantime had become "Chicago's largest gay beer garden."

raf said...

"Why should a minority group that perceives itself as oppressed accept the will of the majority?"

The alternative to majority rule is minority rule, which raises the traditional issue of which minority gets to rule. The resulting discussion can get quite emphatic. Bloody, even. Even an oppressive majority rule seems better than ongoing warfare among minorities.

How to protect minority "rights" in a majority rule environment? I suggest forming a coalition to create a majority. Might involve distastful compromise.

Sounds like party politics, which, for all its exasperating imperfections, still seems like the best system to have evolved so far.

InternetFred said...

"Obviously, the bans involve heterosexual supremacy"

So the ban on polygamy involves monogamous-supremacy?

I think your "Obvious" point is not obvious at all.

Ann Althouse said...

"The alternative to majority rule is minority rule..."

No, it's not. It's the rule of law, which includes individual rights. We have a constitution.

Rose said...

We can just be like Iran. There are no gays in Iran, you know. their leader has proclaimed it so. Problem solved.

And since they are not viewed as the most evil nation/cause of all the world's ills/evil oppressor, we ought to be more like them. then the world will love us, too. (Oooops, thought electing Obama was supposed to solve that little problem)

Yep.

Methadras said...

Why should a minority group that perceives itself as oppressed accept the will of the majority? Why should the intransigency of the political majority convince them that they should refrain from using the courts?

Because they really aren't a minority group, but instead a concocted fiction that simulates one. Gender/sexual orientations are not a legitimate classification of what would constitute a minority since it's physicality is not perceived and is transparent. For example, you can't mistake a black man or woman, or an asian man or woman, but how about a homosexual black man or woman? You can perceive age relatively well, but how about an old, homosexual, black or asian man or woman?

Furthermore, the perception of this minority group that they are actually oppressed is another fiction that they either accept due to their perception of vulnerability within the vast majority heterosexual community, or has been foisted on them by their militant wing/activist types into accepting that not only are they oppressed, but must fight back against the perceived oppression. for example, trying to equate their struggle with that of blacks during the civil rights movement. This was really one of the fundamental undoing of the homosexual right to marry argument. Black to the tune of 7 in 10 were a solid majority against the homosexual argument and was a total rejection that the homosexual enclave/lobby made that their struggle is the same. And not fight back in the venue of legislation or the initiative/referendum process, but through judicial activism. In essence they have been sold a bill of goods.

Let's please stop lying to ourselves into thinking that homosexuals actually don't have some rights. They do. A homosexual man or woman has the same rights as a heterosexual man or woman. Period, end of story. They are crying about something they never had and when actually had courts overturn the will of the voting majority not once, but twice because the homosexual cause didn't net them a majority vote, they sought a judicial redress an got it in the form of overturned votes of millions of people. Not once, but twice. If homosexuals actually thought they had a case then they have failed, not once, twice, but thrice. Why? Because they obviously couldn't make their case to the people of California to join them in a majority vote. Now they bleat and protest like the spoiled, malignantly narcissistic children that they are. They have been lied to and they are unleashing their unfocused anger at the wrong people.

They don't have to accept the outcome, but they must respect it. No one is holding them from doing anything they don't want to do, but in essence all Prop. 8 did was define what marriage is in California. Marriage is between one man and one woman. Very simple. A homosexual man can marry a homosexual woman. If they don't like that, they can go to Massachusetts or Connecticut where their judiciaries found rights out whole cloth for homosexuals to marry. They don't have to live in California if their only criteria is that they want to get married. Also, ever since the overturning of 4 million votes from the last initiative should have been a prompter for the sundry homosexual enclaves in this state to go ahead and take the cue that they should start getting married before that 'right' went away. Civil Union laws in California extend the same rights to homosexuals as does marriage. If the only argument now from them is that they can't file joint federal taxes then that is only because the Federal Government doesn't recognize that provision under DOMA. However, do they really want to press the issue at the federal level? Because this vote in California was also a big FUCK YOU to the judiciary that overturned majority voters voices and to the homosexual activist lobby as well.

Let's be plain and honest about this for a change, shall we. Prop. 8 defines what marriage is. If homosexuals don't like it, they can find other venues that are sympathetic to them. They are out there. They have the choices. Homosexuals are crying about something they never had to begin with. Homosexuals are getting angry at an entire constituency that told them NO. Homosexuals are now trying to tyrannize their fellow citizens with their fascist approaches to changing hearts and minds. At this point, whatever good will the homosexual 'community' had built up is either now gone or quickly evaporating. They are poisoning their own well and they only have themselves to blame for it. If they want a fight, they will lose again. If you want to see an angry majority stomp on an angry minority where 'tolerance' is no longer observed then they will get what they want and it won't be pretty.

Jeff with one 'f' said...

"...the future of gay marriage will be determined not by judicial activism but by demography."

The plurality of Hispanics who voted for the ban on gay marriage in California is just the tip of the demographic iceberg.

Zachary Paul Sire said...

There's something fishy about a bunch of straight men writing manifestos, in multiple comments sections, about gay people and marriage, even after they proclaim the matter resolved by virtue of the vote last Tuesday.

Just imagine how these poor guys will react when the state court overturns Prop 8 in the coming days. Yikes.

former law student said...

There are no gays in Iran, you know. their leader has proclaimed it so.

I understood Ahmadinejad to be saying that there was no "discrete and insular minority" of gays in Iran. Because of the strict segregation of single men and women in Muslim countries like Iran, young men turn to each other for sexual relief. Men can thus have sex with other men without picking up a "gay" identity. When they get married, they will be expected to have sex with their wives.

Johng said...

The problem with "rule of law" arguments is that under the law, the majority makes the law, if the majority is big enough. If 75% of the people or so decide to get rid of the Bill of Rights, then the Bill of Rights won't be the law anymore. You can't run back to "rule of law" because the question then reverts back to "who makes the law?"

Moving on, in California I'm pretty sure that the state grants a bunch of "rights" (more like privileges) called "marriage" and another group of analogous rights and calls them "domestic partnerships." There are some differences between the two but every 2 years or so for the last 10 years, more privileges from "marriage" get added to "domestic partnerships," with huge support in the state for the two classifications to be basically the same. However, merely having the same privileges is not enough for some folk, who demand full equality, not just from the practical perspective but as far as social acceptance.

Now that we are at the point where we are no longer fighting about how the state treats homosexual couples vs heterosexual couples, except for the word "marriage," the question we should be asking is "is there a right for the state and all people in the state to accept homosexuality as socially equal?" And I just don't see how there can possibly be such a right. Maybe people who would grant homosexuals all the privileges of marriage except for calling their relationship a marriage are being bigoted, but I don't know that there is a right for gay people to force others to accept them completely. I'd like to think that even wrong minded people should not be compelled to change their minds for the sake of appeasing an angry minority (or even an angry majority).

Methadras said...

Johng said...

Maybe people who would grant homosexuals all the privileges of marriage except for calling their relationship a marriage are being bigoted, but I don't know that there is a right for gay people to force others to accept them completely. I'd like to think that even wrong minded people should not be compelled to change their minds for the sake of appeasing an angry minority (or even an angry majority).


The notion that tolerance equals or should equal acceptance is another fiction that has been fabricated by the left and namely by the homosexual activist lobby. How offensive is it to have tolerance mean that if I tolerate your homosexuality and the culture behind that I accept it, or that I am forced to accept it. How much more offensive is it to actually say that I or anyone else should tolerate anything. Will tolerance now be forced upon the electorate for the sake of alleviating the feelings of homosexuals?

How about putting up the veneer to people to say that I tolerate your homosexuality and all it entails because I have too when in reality I don't want to either tolerate it or accept it? Tolerance is the weapon of choice to insert into dictums of policy to force people to accept that which they don't want to. Seeing the homosexual rabble in streets protesting this notion is another sign that the majority of people do not want tolerance crammed down their throats at any cost.

tjl said...

"The notion that tolerance equals or should equal acceptance is another fiction that has been fabricated by the left and namely by the homosexual activist lobby"

I was planning to comment that the reaction to Prop 8 was a perfect example of how not to impress potential allies with the justice of our cause. Then along comes Methedras who has convinced me that a public display of outrage is the only way to answer irrational hate.

John Lynch said...

I don't see the further segregation of gay Americans as a separate group as a constructive thing. Pushing for special rights and privileges is not going to work.

What was working was the idea that gays should be treated the same as everyone else. Not special treatment, equal treatment. This is the same idea that made the Civil Rights movement succeed.

What I am afraid is happening is that is moving beyond that, into the creation of special treatment, and the rest of the country's reluctance to create another protected class of people. This is what happened with Civil Rights. And it hasn't worked. Affirmative action and busing and what not have not brought anyone closer. We're still called a racist country.

I think a lot of people would be fine with gay marriage if they didn't have to worry about it being shoved into their lives, and their families' lives, through the media, through sensitivity training at work, and so on. It's just a step in the grievance ladder.

Soon, we'll be hearing about what a bad country we were for so long for not recognizing the rights of gays and how we're still homophobic... and we'll be hearing it for the next century.

In other words, just like the PC narrative for African Americans and Native Americans.

No matter how true those narratives are (and they are) most people don't want to hear about it. And they know that they will be hearing it if they start granting rights.

It's hard to admit that your wrong, and that your ancestors were wrong. It's even harder when you know you'll be hearing about it all the time, and your children will be hearing it every day in history class.

The way to avoid this is to tone down the rhetoric and push for state laws legalizing marriage. Avoid court cases that inevitably lead to constitutional amendments. Avoid the civil rights rhetoric when it is counterproductive (there's a civil rights record since the 1960s that didn't turn out so well). Don't appear to be looking for an entitlement. Play up similarities rather than differences.

Don't appear to be forcing your values on the majority. How is that different than the majority forcing their values on you? If you want respect and tolerance, then it has to be reciprocated. If it's "leave us alone and we'll leave you alone" then marriage for everyone will succeed. If it's "you have to acknowledge that you're wrong and that your values are wrong," it won't.

Host with the Most said...

Just imagine how these poor guys will react when the state court overturns Prop 8 in the coming days. Yikes.

ZPS, that potential is exactly why we are agitated. In the event that the court finds against prop 8, I personally have no problem with violent protests against the State Supreme Court. Or violence against the Jurists and their families. It would be in the honorable tradition of William Ayers and the American Revolution.

raf said...

"The alternative to majority rule is minority rule..."

"No, it's not. It's the rule of law, which includes individual rights. We have a constitution."

I would say that our constitutional order is an expression of an overwhelming majority. An agreement to respect each others individual rights (i.e., remove them from the realm of government) can be part of the compromise necessary to establish a majority. Similarly, the (majority) agreement to leave some matters to the states (and, practically, to localities) rather than requiring uniformity at the federal level is a way around having to pick one minority view to prevail. If we lose our majority commitment to letting the majority prevail, we can expect increasing competition among minorities to have their point of view imposed. Losing an electoral battle can be tolerable if there is a prospect for prevailing in the future -- regaining the presidency or revising/repealing a law. Attempting to end the arguement by a firm declaration of rights does not end the conflict.

Attempting to establish detailed universal individual rights by judicial writ risks institutionalizing a minority position -- minority rule within the boundaries of the decision. Declaring a winner among minorities does not end the conflict, viz abortion. If the original RvW opinion had ben enacted by legislation, the ensuing conflict might have led to compromises around the edges but formed the basis for a majority supported outcome, rather than fuel for intensifying shrillness. I thought the original RvW decision was a very good attempt to establish a compromise position. It did not succeed for long.

Sofa King said...

ZPS, that potential is exactly why we are agitated. In the event that the court finds against prop 8, I personally have no problem with violent protests against the State Supreme Court. Or violence against the Jurists and their families. It would be in the honorable tradition of William Ayers and the American Revolution.

I believe we'd be reaching the third box.

tim maguire said...

mjsharon, you probably won't see this, but I disagree. There are not perfectly acceptable moral objections to gay marriage. There are religious objections, but since we are not a theocracy they should be irrelevant to law making.

paul a'barge said...

There should be no gay marriage because no people should be allowed to marry who are acting like the gays who lost in Prop 8 in California, attacking some religious denominations and giving others a pass (Mooslims) and engaging in the worst racist behavior imaginable.

We just don't want people like this running around America claiming that they're married.

Zachary Paul Sire said...

I do not nor will I ever tolerate or accept people like Host or Methadras as "normal," but it is morally and legally wrong to deny them the same rights and privileges everyone else enjoys. Unfortunately, they will always be around, and they were arguably born as disgusting and evil as they are today, so they deserve the same treatment as me.

And I don't want my children to have to learn in school that people like them exist, but because they are a part of this imperfect world, it is best that my children understand the nature of ignorance and bigotry.

dbp said...

tim maguire said...
"...There are not perfectly acceptable moral objections to gay marriage. There are religious objections, but since we are not a theocracy they should be irrelevant to law making."

See Thomas Sowell's well reasoned article here and show me where the religion enters into his case.

Palladian said...

"Two: Remove the benefits running to heterosexual couples thereby creating "equality" by not favoring anyone.

The second option will leave marriage in the "realm of the individual" as they can structure their relationships how they want."

This is exactly right, and the only acceptable solution. Why does the State sanction religious and/or romantic unions? Why does the State think it acceptable to financially discriminate against the unmarried?

I'm a homosexual, and I don't believe in gay marriage because I don't believe in any marriage, as far as the State is concerned. Keep the State out of our churches and out of our homes. If churches want to marry gay couples, blessings be upon them. If they do not want to marry gay couples, blessings be upon them. Come tax time, I don't want to pay more because I haven't entered into a State-sanctioned romantic relationship.

And of course black voters voted for Prop 8. These are the same voters who in many cases voted for Obama because he was the same "race" as them. If you found white voters who voted for a white candidate simply because he was white, don't you think the ignorant crackers would be against gay marriage too? Bigotry of all kinds comes easily to people who vote for and against classes of people rather than for and against issues.

Methadras said...

tjl said...

I was planning to comment that the reaction to Prop 8 was a perfect example of how not to impress potential allies with the justice of our cause. Then along comes Methedras who has convinced me that a public display of outrage is the only way to answer irrational hate.


Irrational hate from which side? Certainly not from the proponents of Prop. 8. You don't see hordes of heterosexuals taking to the streets to beat down little old homosexuals with a wild-eyed frenzy do you? Right thinking people who voted yes on Prop. 8 let there vote do the talking for them. The irrational hatred is a one way street for the homosexual activist lobby since it is they who have foisted this canard on most homosexuals anyway. The irrational hatred is in the reaction the homosexual 'community' is now putting on display at the tally of the vote that they couldn't win once, twice, and now three times.

Methadras said...

tim maguire said...

mjsharon, you probably won't see this, but I disagree. There are not perfectly acceptable moral objections to gay marriage. There are religious objections, but since we are not a theocracy they should be irrelevant to law making.


Bullshit. You cannot have 'perfectly' acceptable moral objections because that would be asking for perfection. What you can have is reasonable moral objections that are not rooted in religiosity or make a religious argument. I certainly haven't made a single reference to any religion in my arguments against homosexual marriage. I don't need to because the argument makes it's own case. Homosexuals simply and clearly never had the right to marriage, they were concocted by courts as a function of overturning the votes of millions of people to find these 'rights' for a classification of people who self-admittedly make themselves a minority by claiming they are different based on their sexual preferences. I'm a heterosexual man, but for the sake of the argument, tomorrow I can claim to be a homosexual and under that moniker alone I become an oppressed minority. Please, please, please stop finding things that aren't there. Otherwise you are no different then homosexuals who believe they have more rights than every other non-homosexual American. It's stupid.

Methadras said...

Zachary Paul Sire said...

I do not nor will I ever tolerate or accept people like Host or Methadras as "normal," but it is morally and legally wrong to deny them the same rights and privileges everyone else enjoys.


That everyone else includes you as well. But then again, you as an identified homosexual think or believe that you should have rights above and beyond those enumerated to you by law. Who the hell are you trying to fool?

Unfortunately, they will always be around, and they were arguably born as disgusting and evil as they are today, so they deserve the same treatment as me.

This is the difference between us I suppose. You see the disgust and hatred that flows from within you and you try to project it onto others you disagree with. I can't stop you from doing that, but I won't be characterized by you and your movement. Like I said earlier, you and other homosexuals have poisoned your own well. Any good will you had before from the communities at large is now gone. You've done this to yourselves and no one else. You've signed onto a lie that was sold to you in the belief that you actually had something you never did.

Let's be honest about this. Be an adult for a change and understand the choices you've made in life carry consequences you and other homosexuals aren't prepared to deal with or bear out. How is that my fault. In the face of the argument that homosexuality or it's concocted culture is genetic or has a genetic component (none of which has any proof in scientific literature or scientific facts) then you are left with it being a choice or a defect. If it is a choice, then you must bear the burden of that choice and not foist it on others, then if it is a defect then you should be afforded the ability to correct it. If you choose to live with the defect that is you, then you will have to deal with it on your own and not burden the rest of society with it as a responsibility of being your own care-taker.

You want to be viewed as an equal in society and I have no problem with that, but in this one thing, you are not allowed and that is to define marriage as something more than being between one man and one woman. You don't get to define it the way you see fit. If you wanted to defeat the proposition, then you didn't have enough people on your side to defeat it. As if now it doesn't stop you from ever getting married. It does stop you from getting married in the fashion as you see fit.

And I don't want my children to have to learn in school that people like them exist, but because they are a part of this imperfect world, it is best that my children understand the nature of ignorance and bigotry.

I'm neither ignorant nor bigoted towards homosexuals. Again, you attempt at putting people on the defensive by being a moronic demagogue and trying to marginalize the majority of people who don't think like you is what is in question here. The first thing you should be teaching your children is the word NO. Because it is apparent that you don't even have the most basics of knowledge down to understand it yourselves. You've been told NO. NO you cannot get married if you are two men or two women. NO. Understand that word once and for all. Marriage in California has been defined for everyone. There is no more confusion about it. It's clarity is crystal clear. If you choose not to deal with it. You don't have to live in California. And from the irrational hatred you put on display them I'd say that California would be better for it.

Palladian said...

"Let's be honest about this."

OK, Let's! You're an asshole!

"Be an adult for a change and understand the choices you've made in life carry consequences..."

Yes! Let's! Just as you should understand the choices you've made in life, to be an asshole, also have consequences, such as people reading your comments and saying "what an asshole!".

"...you and other homosexuals aren't prepared to deal with or bear out."

Oh, believe me, we've dealt with the consequences of our choices, honey, and borne the burden with far more grace than you'd ever show under similar circumstances because, well, because you're an asshole.

"How is that my fault. [?]"

Because you're an asshole!

"In the face of the argument that homosexuality or it's concocted culture is genetic or has a genetic component (none of which has any proof in scientific literature or scientific facts) then you are left with it being a choice or a defect."

Wow, if I could untangle that wreckage of tense, grammar and meaning I'm sure it would be further proof that you're an asshole.

"I'm neither ignorant..."

Snicker

"...nor bigoted towards homosexuals."

Nope. You're just an asshole!

"The first thing you should be teaching your children is the word NO."

Really? That's the first thing? Wow. Maybe that's how you were raised and why you became such an asshole.

"Because it is apparent that you don't even have the most basics of knowledge down to understand it yourselves. You've been told NO. NO you cannot get married if you are two men or two women. NO. Understand that word once and for all. Marriage in California has been defined for everyone. There is no more confusion about it."

Wow. You're not just an asshole. You're a major asshole!

"It's clarity is crystal clear."

Yes, generally things that are crystal clear do have a lot of clarity. I should know. I have Baccarat wine glasses that are clearer than the air in that space between your ears. The clarity of my Baccarat crystal wine glasses is crystal clear in its clarity. Or should I say in it's clarity. I need to study the way you write and think, the way you mis-punctuate, because I'd like to learn how to be a better asshole.

"If you choose not to deal with it. You don't have to live in California."

If you choose not to be an asshole. You'd still be an asshole.

"And from the irrational hatred you put on display them I'd say that California would be better for it."

Zing! Guess you showed us!

The funny thing about your exchange with ZPS is that he's an asshole too. You and he have done the impossible: you've made the extremes of either side of this debate equally loathsome and reprehensible. Congratulations, assholes!

Methadras said...

Palladian, I sense jealousy. Listen little girl. You want to throw your little hissy fit, that's fine. You want to call me an asshole. That's fine too. I've been called an asshole by better gays than you. Trust me. However, your little tirade is not an argument well made. It's just an embittered collection of your little homosexual snarks that you've been practicing for years an your lesser little heterosexual playmates.

I could really care less if you think I'm an asshole, but understand one thing, the people of California have spoken on the subject of your ability to define marriage as a direct rebuke against. You lost the argument. It appears that you've lost other things in the process.

Palladian said...

"You lost the argument. It appears that you've lost other things in the process."

You could lose everything, little girl, and guess what? You'd still be an asshole!

Heterosexuals have half-succeeded destroying the blessed sacred super-holy institution of matrimony all by themselves. All we have to do is wait a few more years and you guys will finish the job. Maybe then the gays will be nice enough to pick up the pieces. But by that point, who would want to trade in such a debased coin? As I said, I don't believe the State should be involved in the licensing, sanction and regulation of what is essentially a religious and/or romantic agreement and ceremony. But if it upsets the likes of you, then I'm all for it, whatever it is.

Palladian said...

Man, this cruel neutrality thing is fun! Thanks, Althouse! I should have tried it sooner.

tjl said...

Methedras,

What did I or Palladian or any other hapless gay person ever do to you to cause such anger? Nothing. Your anger is irrational.

As I noted above, I think the street reactions to Prop 8 are childish and counterproductive. I think it's a mistake to demonize all opponents of Prop 8 as bigots, because many aren't. But some are bigots indeed, as your outbursts show.

Up to now, gay marriage has seemed to me like a somewhat artifical cause, because it's heteronormative -- i.e., it assumes that gay couples should uncritically adopt a legal status evolved by and for heterosexual couples for the production of children and the orderly disposition of property. It carries huge religious and social baggage which I'm not sure gay couples should necessarily want to have to carry.

But Methedras almost convinces me that gay marriage should be fought for, if it means the defeat of irrational anger like his.

Methadras said...

tjl said...

But Methedras almost convinces me that gay marriage should be fought for, if it means the defeat of irrational anger like his.


I am neither irrational nor am I angry. I'm simply reacting to the reactions that homosexuals have taken it upon themselves to call what they are doing as protests. Sour grapes, man. Sour grapes. But I'm sure my statements were just the last straw that broke your back, right? Your interpretation of what you perceive as my irrational anger is really what you wish it to be. You think I'm irrationally angry and therefore in your mind you then see me as being that way. Your pathetic and sad all at the same time. The homosexual cause and their reactions to it are just as pathetic and sad.

Sofa King said...

What did I or Palladian or any other hapless gay person ever do to you to cause such anger? Nothing. Your anger is irrational.

Why don't you ask DTL.

Pastafarian said...

Palladian -- your 7:38 comment is an instant classic. Good stuff.

I've read this entire thread by some very smart people who know much more about the law and this issue than do I, however, and I'm not really any more informed on whether the pro-gay-marriage movement has a valid constitutional argument.

I can see the point to both arguments. Even on a purely political level, I'm not sure if it's in conservatism's best interest to co-opt the left's position here; I'd love to be rid of the Huckaby wing of the GOP, but when an issue like this wins even in California, of all places, it's hard to see any political advantage to be gained by the GOP in softening on this issue.

Intuitively, though, it does seem discriminatory for the government to grant favored tax status to one group but not to another, based either on the electorate's idea of moral behavior, or on some social engineering motive meant to populate the American West.

I guess we'll just have to give up the tax advantages to marriage. There's a plank for the 2012 platform that would go over like a lead balloon in either party.

Methadras said...

Palladian said...

You could lose everything, little girl, and guess what? You'd still be an asshole!

Heterosexuals have half-succeeded destroying the blessed sacred super-holy institution of matrimony all by themselves. All we have to do is wait a few more years and you guys will finish the job. Maybe then the gays will be nice enough to pick up the pieces. But by that point, who would want to trade in such a debased coin? As I said, I don't believe the State should be involved in the licensing, sanction and regulation of what is essentially a religious and/or romantic agreement and ceremony. But if it upsets the likes of you, then I'm all for it, whatever it is.


Truth hurts doesn't it? The world still turns and you are still who you are.

gregq said...

Obviously, the bans involve heterosexual supremacy. But, here, Rosen asserts that classification by sexual orientation is not entitled to heightened judicial scrutiny. That's a point of legal doctrine, but why is it correct?

Well, because We The People have never banned discrimination based upon sexual orientation? Democracy, it's not just for decided who should be President. On what basis would the Courts make "sexual orientation" a protected class, other than "well, it makes we five justices feel better to do that"?

tim maguire :
inter-racial marriage bans are different from same-sex marriage bans because

Well, gee, how about because you've had interracial marriage all throughout history, but up until 30 - 40 years ago no one had even heard of the idea of calling a same sex relationship a marriage?

Let's consider these two statements:

It's not a real marriage if it's between people who are of different races.

It's not a real marriage if it's between two people of the same sex.

The first is ludicrous. The second is not.

Finally, racial discrimination is banned (no whites only bathrooms), sexual discrimination is not (it's perfectly legal to have separate men's and women's bathrooms). Saying a man can only marry a women is sexual discrimination, which is not inherently unconstitutional. Saying a black can't marry a white is racial discrimination, which is unconstitutional.

None of that is brain surgery. Were you really unable to figure that out, Tim?

gregq said...

Why should a minority group that perceives itself as oppressed accept the will of the majority?

My candidate for President lost because the dishonest MSM refused to tell the truth about your candidate. I am part of a minority, and I feel oppressed. Should I ignore the results of the election, and try to get the Courts to overturn it?

America is a democratic republic. The majority is supposed to get it's way. You don't like the majority's way? Fine. Convince enough of them that you're right, so that you can be in the majority. You can't do that? Then you lose. Tough.

Being a "minority" doesn't magically entitle you to trample over the right of the majority to get its way. If a previous majority has specifically written something into the law or Constitution that protects what you want (like freedom of speech), great! But if it hasn't (i.e., like SSM) then you don't get it, and don't deserve to get it.

But the question was what more could gay people do to win favor in the political arena?

Well, number one is they could stop trying to use black robed thugs to force their views and desires on the rest of us. If you're not going to respect our rights, there's no reason in the world for us to respect your desires.