Would It Be Better to Lose the Marriage Cases?

Jonathan Rauch makes a very interesting argument at the New Republic, which is that the cause of marriage equality will actually be better served by not having the Supreme Court declare that there is a constitutional right, under the equal protection clause, that compels the states to allow same-sex marriage.

I bow to no one in my support for marriage equality. I have been fighting for it since 1996, when the cause seemed crazy and only the courts offered any hope at all. As part of that fight, the hardest thing I have done is to counsel my gay friends and allies that litigation was necessary, but that real civil rights—durable, deeply rooted civil rights, as opposed to what James Madison called “parchment barriers”—come from consensus, not from courts…

Gay Americans are now, at long last, winning the battle for marriage equality where it counts: in the hearts and minds of our straight fellow citizens. Only recently, polls began showing a narrow majority of the public supporting same-sex marriage. That trend broke through into politics in 2012, our annus mirabilis. The president and the Democrats embraced gay marriage after years of opposing it; so did some of the country’s leading conservative thinkers…

Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.

I think he has a point, but that last sentence is wrong. Same-sex marriage will enjoy the same legitimacy that interracial marriage now enjoys at some point in the future; the only question is how long it will take and what path will get us there. But I do think he has a point that, looked at through the lens of history, it will take less time for that view to become ingrained in the culture if the battle for equality is won first at the ballot box before winning in the courts.

To some extent, this is all navel-gazing. I think it’s very unlikely that the Supreme Court is going to declare a constitutional right to marry someone of the same gender in either of the cases they’ve agreed to hear. As I’ve said before, I think they will either punt or come down with a narrow victory for equality in one or both of these cases. 10 to 15 years from now, after many states have repealed their bans on same-sex marriage and achieved marriage equality on their own, then the Supreme Court is much more likely to make a broad equal protection ruling striking down the remaining such laws in the reddest of the red states.

Comments

  1. Akira MacKenzie says

    If Rauch is betting on the tolerance of the American people–a people steeped in racism, miogyny, capitalist greed, theism, and heterosexism–to make the right decision themselves, then you are going to be waiting a very looooong time.

    Meanwhile, there are people suffering In the present who can’t wait “10-15 years” for their rights to be recognized. We must have marriage equality (and racial equality, and gender equality, and ecomonic equality, etc. while we are at it) right NOW. Even if that means “Big Government” has to march in and ram progress down the throats of the Bible-humping scum who oppose it.

  2. Michael Heath says

    I empathize with Jonathan Rauch’s position. However it also annoys me when people conflate political strategies with jurisprudence.

    There’s a compelling argument to be made that supporters of liberty would be best served if the courts punted for the next several years on gay rights. I’ve come to adopt this position recently given the conservative make-up of the Supreme Court and Anthony Kennedy’s extreme political partisanship regarding Obamacare. So while J. Kennedy’s past opinions have been gay-friendly, I think its imprudent to trust a dishonest conservative partisan which he proved to be on Obamacare.

    Both Barney Frank and Andrew Sullivan have long been making the argument state-level democratic efforts is the optimal method to secure gay rights until a large number of states concur, and then take the fight to the federal level. But in their arguments both defectively conflate politics with matters of jurisprudence which has them avoiding the plain absolutist language of the due process and equal protection clauses of the 14th Amendment. Those clauses require the federal courts to defend the rights of gays and their families equally against state tyranny. Mr. Sullivan has even recently and falsely claimed marriage is a state and not a federal matter [1], where I’ve called him out via email where he refuses to acknowledge his mistake.

    1] Andrew Sullivan wrote:

    Marriage is a state issue – always was until DOMA came long. Federal institutions should, in my view, simply respect the states’ decisions, not try to rationalize or coerce them.

    Even a junior high student reading level can plainly see the 14th Amendment falsifies this position. And as Ted Olson has argued in the Prop. 8th case, the SCOTUS has asserted in several holding precedents that marriage is a so-called fundamental right and therefore obligates government protection, where those precedents go back way before the advent of DOMA.

  3. says

    “then the Supreme Court is much more likely to make a broad equal protection ruling striking down the remaining such laws in the reddest of the red states.”

    IOW, as in “Dred Scott v Sandford”, “Lawrence v Texas”, “Loving v Virginia” and “Griswold v Connecticut” the Supremes will only rule for what is right and just when it is unavoidable. Funny that. The humor is lost, of course, on the millions of person harmed by bigotry, unjust persecution/prosecution, slavery and lynchings*.

    * Lynching being one of the preferred methods of cowardly bigots in the U.S. for “regulatin’ the uppity”.

  4. Childermass says

    The biggest danger of winning in court is thinking that you have WON, letting down your guard, and letting the opposition whittle you down while you fail to fight for changes in statuary law and in public opinion. Winning in court can also make some of your supporters think that they don’t have any need to keep bigots out-of-office: after all what can they do? In reality, plenty.

    Winning in court is never enough. And while court victories can be very useful things, they are no substitute for winning the hearts and minds of the people, winning at the ballot box, and winning in the legislatures. That is where you really win.

    We been winning in court over evolution education since the 1960s and yet creationism in the classroom is still common and evolution education is still inadequate and often outright absent. Abortion was legalized by the Supreme Court four decades ago, and in many parts of the country it is still difficult to get one. The anti-abortion people are right now the ones making progress. Supreme Court decisions against racial discrimination did pretty much nothing until people got out, protested, boycotted, made speeches, allowed themselves to fill the jails, etc. until they got laws changed — and even them it was slow going. Let that be a lesson and to be repetitive: winning in court is never enough. If you rest on that victory, the other side can still win.

    Besides, Supreme Court decision don’t live forever. Don’t ever assume that the other side can’t reverse it. But if you change the law books and convince a strong majority of your cause, then the opposition can at most whine, maybe do a few acts of terrorism, but they are in the garbage can of history even if they don’t know it yet and even if they somehow did reverse the decision.

  5. Michael Heath says

    Akira MacKenzie writes:

    If Rauch is betting on the tolerance of the American people–a people steeped in racism, miogyny, capitalist greed, theism, and heterosexism–to make the right decision themselves, then you are going to be waiting a very looooong time.

    Which is exactly why Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Maine, Maryland, Washington, and the District of Columbia all deny gays their right to marry. Wait, they either do now or will very soon.

    I recall your recently noting in one of Ed’s blog posts you used to be an extreme conservative before converting to the left. You remind me of the mirror image of the communists who became neo-conservatives. The baggage that comes with extremism continues to be applied to the movement you now embrace. Such extremism, here defamation that dishonestly smears an entire population, not only remains morally repugnant regardless of which wing it comes from, it promotes a muddying of the public waters.

    Your type of effort makes it even more difficult to productively debate issues. Here, you appropriate a worthy leftist cause in a way that justifies non-liberal skepticism of liberals if your premises were true; which they aren’t as shown above by the nine states and counting who now defend gays’ right to marry. And where the majority of the U.S. public now supports gay marriage, which is incredibly rapid progress for such a diverse society.

  6. says

    Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.

    Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.

    So does desegregation not have “deep legitimacy”? Interracial marriage? Because these rights were acknowledged by the Supreme Court, does that mean they’re less legitimate, and amount to being handed a prize by a referee before you’ve actually earned it?

    Because we know, after all, that rights are earned by minorities; they aren’t inherent or anything. It’s should be a matter of popular opinion, because getting everyone to like you should be the foundation of “legitimate” personhood.

    What a horrible, insulting analogy.

  7. D. C. Sessions says

    Interesting. That’s essentially the argument Goldwater made against the Civil Rights Act and that others have made against Roe v. Wade.

    As for

    Same-sex marriage will enjoy the same legitimacy that interracial marriage now enjoys at some point in the future; the only question is how long it will take and what path will get us there.

    I think you may have it backwards: same-sex marriage will achieve widespread acceptance before interracial marriage does. As Dan Savage (among others) points out, homosexuals have a huge advantage over brown people: they are born into families everywhere, among people of every color, every region, every religion. Once they come out of the closet they have the leverage of family affection, of parental and sibling memories, etc. that makes them much more difficult to “otherize.”

    Once acceptance begins, as it has, the process accelerates at rates vastly faster than racial acceptance. As you can see by the relative progress between SSM and interracial marriage, which is still opposed by nearly as large a percentage in the deep South.

  8. Michael Heath says

    Childermass,

    I get your argument where your examples regarding evolution and abortion are excellent in making your general case. However I’m not sure those illustrations are analogous to gay marriage. Gay rights in general yes, but not gay marriage. That’s because gay marriage is a yes/no proposition rather than one where states could whittle the protection of that right down to where it’s not feasible to exercise that right.

    So while we need the states and the public to insure gay rights are protected equal to others, the courts could in one fell swoop eradicate the prohibition of gay marriage just like they did with miscegenation laws in Loving v. Virginia. To Ed’s hunch, they probably won’t at this time.

  9. says

    No, Michael, I’d say Akira has it pretty much right– the existence of a few individual states accepting gay marriage hardly means that “the American people” do, and various types of bigotry born of or fostered by religion are a good general explanation for that. And even if this wasn’t the case, jumping all over someone personally for making that statement is certainly uncalled for. It makes it difficult to productively debate issues.

  10. jesse says

    I think the problem with Rauch — and the argument that a win in SCOTUS isn’t really a win — misreads how minority right have evolved in the US.

    When Brown v. Board of Ed was decided, there were already massive, massive protests going on. African Americans had already been through a couple of cycles of demonstrations and even violence. Abortion and contraception were both decided long after a) women were fighting like hell and b) does anyone think that by the time the Griswold case was decided married couples weren’t using birth control?

    The courts haven’t usually been a leading indicator of rights; quite the contrary, they’ve been rather conservative historically. That is, the courts come around when enough people make noise or the laws are in a position that isn’t tenable anymore because of that thing called reality.

    In a similar vein, the court battles over gay marriage are a trailing indicator; no, most people in the US probably aren’t for gay marriage, but there is a whole history of people getting out in front of the issue and saying that it is their right. Whether or not the states pass laws mandated by the population. What the courts have done is sometimes solidify the gains already made. (Heath’s note that gay marriage is a bit easier to work with in that sense is noted; he’s right because as a yes/no proposition you can’t erode it with restrictions is spot on, but that isn’t true of most rights gained).

    I can’t think of a case where SCOTUS granted any minority or un-privileged group rights before any of the states did, nor can I think of a case where it wasn’t in the face of massive protests — sometimes riots and violence. After all, women weren’t jut granted the vote out of the blue, either. (Yes, I know, constitutional amendment, that’s a bit different — point is it wasn’t like the courts flew in to grant it over anyone’s objections).

    So yes, it’s necessary to push state lawmakers. It’s also necessary to push the courts. The two aren’t mutually exclusive and Rauch is talking like they are. It’s a real misreading (or ignorance) of history, IMO.

  11. Michael Heath says

    Gretcen writes to me:

    No, Michael, I’d say Akira has it pretty much right– the existence of a few individual states accepting gay marriage hardly means that “the American people” do, and various types of bigotry born of or fostered by religion are a good general explanation for that.

    Citation requested by either you or Akira that empircally validates Americans in general can be defined as all of the following:

    the American people–a people steeped in racism, miogyny, capitalist greed, theism, and heterosexism

    The fact is, the fight for the civil rights of gays is instead succeeding at an astonishingly fast rate relative to the fight for the same by previous groups. The majority of the U.S. now even supports civil unions and even gay marriage. That falsifies Akira’s defamation of the U.S. people and your apparent concession of his false description of us. From the 2004 elections to the 2012 elections we’ve enjoyed a near-complete reversal in legislative trends.

    I have no doubt we’ll eventually need the SCOTUS to finish the job in the confederate states and few other deep red states, but their attributes are not indicative of the U.S. in general as we encounter from national polling and even the ability to increasingly overcome minority opposition in some states.

    Gretchen writes to me:

    And even if this wasn’t the case, jumping all over someone personally for making that statement is certainly uncalled for. It makes it difficult to productively debate issues.

    My post was in the context of all of Akira MacKenzie’s posts in this forum, not this one post. Posts which demonstrate he has a deep hatred of the U.S.; so deep he’s happy lying about our attributes as he does here and in many of his posts. Where I despise lying and will grudgingly call it out as long as Ed tolerates me here.

  12. Michael Heath says

    Jesse writes:

    I think the problem with Rauch — and the argument that a win in SCOTUS isn’t really a win — misreads how minority right have evolved in the US.

    If you didn’t intend to frame your point as I do below, than please accept my apologizes. I’m merely using it to make a tangential point of clarification.

    I think we need to be careful describing Jon Rauch’s argument. After reading the entire article I found Mr. Rauch wasn’t claiming the SCOTUS should never directly address the federal obligation to protect the right of gays to marry, or not.

    I’d bet all high-information supporters of gay rights realize that at some point the SCOTUS will have to step-in to defend gays’ rights to marry in at least the deep red states even if dozens of blue and purple states start protecting their rights based on state-level victories. We’d have to wait too many generations before gays achieve a democratic or judicial victory via each respective state.

    Instead Rauch’s argument is that right now when the momentum has just turned, contrary to Akira MacKenzie and apparently Gretchen’s assertions, it’s not politically convenient for the SCOTUS to intervene with a defense of gay rights. That procrastination by the SCOTUS will eventually enable and yield more democratic support and therefore less legislative blowback from Republicans in deep red states when the SCOTUS eventually defends the rights of gays to marry.

  13. iknklast says

    I think he is right, in an ideal world. Unfortunately, we don’t have an ideal world, and this smells a lot like the arguments I often hear about not pushing too fast to get women’s rights (would we have them now if we hadn’t insisted on having them legally? Would they be more legitimate if they were given to us willingly and eagerly by the American people, and not seized by us because we deserve them?) Also, on civil rights. If we hadn’t insisted on forcing civil rights on the American people (100 years AFTER the end of the Civil War), they would have been able to win them much less grudgingly. Yeah, right. In another 100 years?

    Some things, I’m afraid, have to start from the top, and then people sort of get used to them. We’re still waiting for some people to get used to civil rights and women’s rights, but really, it hasn’t been all that long, compared to the amount of time they DIDN’T exist.

  14. sivivolk says

    @Gretchen

    Agreed, the analogy is terrible. Americans who want same-sex marriage shouldn’t have to show that they’ve somehow earned the right, the way a runner does. They ought already to have that right, and whether that recognition comes from the states and voting, or via the Supreme Court admitting the unconstitutionality of anti-SSM laws, the important thing is the recognition.

    And for some things, the Supreme Court really is necessary. Does anyone think prayer in schools would have banned via state-level laws?

  15. peterw says

    Rauch seems to be essentially following Ruth Bader Ginsburg’s argument concerning Roe v. Wade. She suggests that the Roe court either ruled too early or too broadly in legalizing abortions because the US was on the path to legalizing abortion legislatively. By removing the issue from the democratic process, she suggests, it undercut the legitimacy of the right just as it was on the point of gaining widespread popular acceptance. With the result being the ongoing abortion battles we’ve had in the US since that time and the defeat of, among other things, the ERA. (One of her suggestions would have been for the court to have struck down only the extremely restrictive Texas abortion statute and allow the states to continue to craft their own policies over time; at some point, of course, the court would likely step in again, but abortion rights would, in her opinion, be on much stronger footing.)

    It may be relevant in this context to look at Loving v. Va: while it was true at one point that 41 states outlawed interracial marriage, by the time of Loving, interracial marriage was banned in only 16 states, all in the old south. So this may be a case where the court waited until there was broad support for interracial marriage generally before striking down Virginia’s law. (Which incidentally made it a crime punishable by 1-5 years to marry interracially).

    Having said that, though, it might be reasonable to believe that same-sex marriage has already attained enough public acceptance for a court ruling upholding to not lead to a Roe v. Wade-style situation. Certainly polls show a far greater acceptance of SSM than was the case even 5 years ago.

  16. says

    I am amazed that anyone thinks that gay marriage could be allowed nationally but NEVER be hedged with restrictions by states – ala abortion. That strikes me as VERY naive.

  17. tomh says

    Gwynnyd wrote:
    I am amazed that anyone thinks that gay marriage could be allowed nationally but NEVER be hedged with restrictions by states – ala abortion. That strikes me as VERY naive.

    It didn’t happen with interracial marriage, which is the closest analogy. How would restrictions work with SSM? I don’t see it.

  18. says

    Thing is, I can see weaknesses in both strategies.

    If we win in the court, opponents will claim that the “will of the majority” was thwarted by the court “legislating from the bench”. It’s what opponents of abortion rights have been whining about for the last forty years. The result been an ever-increasing politicization of court nominees and each side constantly fretting about being one justice away from getting their way and/or losing their rights.

    On the other hand, getting rights by a majority vote implies that the majority vote to take them away in the future. Case in point with respect to abortion: there are numerous state legislatures across the country that would vote to take away a woman’s right to choose in a microsecond if Roe v. Wade were off the table.

    So, what should supporters of marriage equity do? It’s not an either/or question. Both strateties need to be fought in parallel if we’re to succeed.

  19. Amazing Sandwich says

    Bull-fucking-shit. A right is a right is a right. Stepwise progress is necessary when it’s all that can be had, but in the end victory is all that matters, not how goddamned virtuous and erstwhile you were in the pursuit. Rights are not the fucking Olympics. He can shove his genteel sportsmans’ approach up his ass.

  20. jesse says

    @Michael Heath:

    I read Rauch’s piece, and I still think his argument is flawed, both on a historical basis (my point about Brown v Bd of Ed) and on a political strategy basis.

    He says Brown v. Board of Ed was the beginning; I am telling you (based on having spoken to a number of the people involved in the struggle he speaks of) that it was far from the beginning. White people think the struggle started there. But the first demonstrations predated Brown by quite a bit. And there was a whole other African American civil rights movement that occupied the 1930s. It just wasn’t successful and didn’t have a convenient-to-narrative front man a la MLK. During the intervening years many, many grassroots struggles continued. It wasn’t like the NAACP just threw darts at a board and said , “Yep, we’ll contest in Topeka.”

    The court decision made it harder for states to explicitly deny rights to people. That’s sort of the point. A win in the SCOTUS for gay marriage would deny bigots one more way of doing it. But Rauch seems to treat SCOTUS decisions like they come from nowhere, and they don’t.

    Leaving that aside, Rauch seems to think attitudes change in some kind of inevitable march to progress. They don’t. The attacks on a woman’s right to choose are occurring not just because the courts said women had that right; it’s a battle to reverse all the gains that women have ever made. (This is why political religious fundamentalism, by the way, is a very modern movement — you have groups of people in the US and elsewhere that feel deeply threatened when “others” make gains and the privileged have to share power. Absent that, they’d be chugging along just as before and the situation for the “others” — women, minorities here — would still be horrible).

    And he’s wrong on the facts in the Loving case as well — that ruling was quite controversial in the states that still forbade interracial marriage. And is he not aware that it came after we had the first black SCOTUS justice?

    Again, I stress that my reading of it is that he treats SCOTUS battles and on-the-ground activism and change as nearly mutually exclusive, as though one negates the other. And I just don’t think past history bears this out. Perhaps one way to put it is that Rauch seems to conflate the kind of work you’d do if you wanted a Constitutional Amendment with that of getting rights recognized without that. If we were talking about the ERA or something I’d buy more of what Rauch is saying. But we’re not.

    In that sense I don’t think he’s completely wrong, just that he doesn’t seem to be deep into the history of how political changes for women and minorities happened.

  21. Michael Heath says

    The political paradigm Rauch uses to argue it’d be better for the court to procrastinate until more states allow gay marriage laws does exist. But it doesn’t have to, that’s why I stridently pound our becoming a society that acknowledges the 9th Amendment and the equal protection clause of the 14th Amendment.

    The desire to see the federal courts proceeds slowly suddenly disappears if people become cognizant of the role the Constitution demands of the federal government when it comes to protecting the exercise of our rights from state tyranny.

  22. Michael Heath says

    jesse writes:

    And he’s wrong on the facts in the Loving case as well — that ruling was quite controversial in the states that still forbade interracial marriage. And is he not aware that it came after we had the first black SCOTUS justice?

    I’m struggling to follow you. Could you please quote what Jon Rauch writes about Loving?

  23. says

    Michael,

    In 1948, California’s supreme court overturned the state’s ban on interracial marriage. It took the U.S. Supreme Court 19 years to affirm and nationalize that ruling, and by then the decision wasn’t controversial.

  24. thomwatson says

    peterw wrote:

    It may be relevant in this context to look at Loving v. Va: while it was true at one point that 41 states outlawed interracial marriage, by the time of Loving, interracial marriage was banned in only 16 states, all in the old south. So this may be a case where the court waited until there was broad support for interracial marriage generally before striking down Virginia’s law. (Which incidentally made it a crime punishable by 1-5 years to marry interracially).

    There was anything but “broad support” for interracial marriage in 1967; while it’s true that only 15 states still banned it by the time of Loving v. Virginia, polls show that Americans overwhelmingly still opposed interracial marriage in 1967 by a 3:1 margin; it wasn’t until the 1990s that support for interracial marriage achieved a plurality and only 1994 that it finally achieved a majority.

    Yet, while only 9 states and the District of Columbia current offer legal equal marriage, support for marriage equality for same-sex couples already enjoys a majority in every major poll. So we’re already at the point of popular support in 2012 for marriage equality for same-sex couples that interracial marriage took almost 30 years to reach; yet I think it’s more likely that the Supreme Court doesn’t really care about actual public opinion when and if they take “public opinion” into account, but rather they care more about the number of states they have to overrule. So I think that already existing majority support for marriage equality will not count for much in next June’s SCOTUS decision.

  25. fleetfootphilo says

    It’s like the old ball coach says: Don’t leave points on the field.
    Meaning: Take the points at the earliest opportunity.
    It’s folly to forego any victory simply because a more aesthetic win sits waiting to be won. A ‘prettier’ victory 15 years from now is cold comfort to those already suffering.
    I’d celebrate a win in both of these cases.

  26. thomwatson says

    fleetfootphilo writes

    It’s folly to forego any victory simply because a more aesthetic win sits waiting to be won. A ‘prettier’ victory 15 years from now is cold comfort to those already suffering.

    As one-half of a couple hoping to marry and still being denied both our right to do so and the 1,138 rights and benefits thereby accorded, thank you for pointing this out. Personally, I don’t really care if the country remains “divided” on the issue of marriage equality — people can hate or condemn me as a sinner to their hearts’ content and to the end of their days — just as long as the government treats me equally, and I can stop worrying about whether my legal relationship to my partner exists or doesn’t exist depending on which state we find ourselves in or traveling through or over at any given moment. Waiting for equality might not seem just a big deal when it’s an academic exercise, when it’s not your equality that’s being denied; not all of us waiting for it still will be around in 15 years.

  27. madgastronomer says

    I live in Washington. My wife and I were married on Friday. We just got back from our honeymoon.

    But the states we grew up in, where our families live, don’t recognize our marriage. If we go to visit our families, we will be as vulnerable to certain kinds of problems as if we had never married. Our federal government doesn’t recognize our marriage. We are as vulnerable to certain kinds of problems with the federal government as if we had never married.

    I will have to deal with homophobia for the rest of my life, regardless of what tactics are used. But my life can be made substantially better very very soon if the courts take action to end this form of legal discrimination.

    I’ve heard this theory that battles won through lawmaking are better than battles won through the courts many times. I have yet to see any evidence that it’s actually fucking true. But I have plenty of evidence of the efficacy of getting legal rights ensured in, you know, actually getting legal rights ensured.

    My life and my rights are more important than strategies, especially nebulous ones that there’s no evidence for the effectiveness of. It’s ridiculous, and, frankly, insulting. Any move towards more equal rights is better than not getting it, and the more people it affects, the better it is.

  28. Akira MacKenzie says

    I’m sorry, Michael. I’m just fucking sick and tied of waiting for the U.S. to catch up with the rest of civilization.

  29. dingojack says

    Akira – I sorry to hear of your illness and bondage problems…. ;)

    As an outsider (no chance of marriage equality here, at least Federally anyway) this is my ‘prediction’.
    Because the Courts are usually far more conservative than the average American I doubt there will be any really movement there. (Probably the court will say ‘there’s no compelling reason to do this, even though there’s no really compelling argument not to’ or some such).
    However, at the State level they will flip over one by one in ever quicker succession until the whole of the northeast and the west coast (the ‘blue’ states) will favour it.
    One of the central western or southern states will enact a law that bans ‘gay marriage’, it will be challenged, final ending in front of the Supreme Court. The court will then suddenly discover this amendment to the constitution called the 14th amendment and bingo bango Federal protection. The reluctant states will try to enact ‘jim crow laws’ but they will be struck down as unconstitutional.
    The GoP will then come out swinging saying: ‘we supported marriage equality from the word go. Oh yes there was that idiotic, hateful thing presidential candidate X said, but he’s no true Republican’.
    And so it goes… :(
    Dingo

  30. thomwatson says

    dingojack writes:

    One of the central western or southern states will enact a law that bans ‘gay marriage’, it will be challenged, final ending in front of the Supreme Court. The court will then suddenly discover this amendment to the constitution called the 14th amendment and bingo bango Federal protection. The reluctant states will try to enact ‘jim crow laws’ but they will be struck down as unconstitutional.

    1) I don’t think you realize just how far the bans already have gone; discounting the nine states and the District of Columbia that have legalized marriage equality, there are in fact only three states left — New Mexico, New Jersey and Rhode Island — that haven’t already banned equal marriage, either by state law or by state constitutional amendment or (in most cases) both. All southern and central western states fall into one of these categories. And New Jersey and Rhode Island are expected to gain marriage equality within the next couple of years; bans in those two states really are unlikely.

    2) Moreover, the situation you describe for the future is in fact the one we’re already facing now at the Supreme Court with the Prop 8 case, where equal marriage was deemed to be required by the state constitution but then the constitution was amended at the ballot in 2008. The plaintiffs are in fact already asserting (and the lower courts agreed) that Prop 8 is unconstitutional under the14th amendment.

  31. thomwatson says

    And, of the 41 states without marriage equality, 31 have actually written the ban into their state constitutions (and most of those have statutory bans as well). So winning state-by-state is not a simple matter in most cases of just passing a law or a ballot initiative; in 31 states we first have to repeal existing constitutional amendments.

  32. thomwatson says

    Dingojack: I’m not sure what your “not as simple as that really” means, or why you linked to that map (which corresponds to the numbers I noted; I was using the map at http://www.marriageequality.org/sites/default/files/National%20Map%20%2307%20%2807-Nov-2012%29.pdf — from Marriage Equality USA, the organization for which I’m part of the national team, but the data there is the same as the data at wikipedia, just displayed differently)… in fact, I agree and pointed out that the constitutional bans make it anything but simple.

  33. dingojack says

    The purpoe, my dear Thom, is to demonstrate you’re confusing one kind of ban with another for a start.
    A ban by statue -=/= a ban by constitutution. The fromer is easier to overturn and doesn’t require referenda.
    Dingo

  34. thomwatson says

    I don’t believe I have confused them in the slightest. In fact, I pointed out that the vast majority of states — 31, or 3/4 of those that don’t already have marriage equality — have a constitutional ban (and all but four of those in combination with a statutory ban), and that it is those 31 that will pose the greatest difficulty. — precisely because of the constitutional ban. I don’t think we’re largely in disagreement, and I wonder if you misread or misinterpreted something I wrote, or if I wrote something poorly so that it seemed to read other than I intended. I still disagree with your original prediction that a southern or central western state will be able to pass a ban in the future to be challenged at SCOTUS; I disagree, because all of those states already have such bans on record, and most of them (all of the southern states, to be sure) have put those bans in their constitutions.

  35. dingojack says

    Thom – fundamentally I think you’re being overly pessimistic.
    30 states are described* as banning same sex marriage outright, of those 5 only by statute.
    Dingo
    ——–
    * using your own map. BTW what does the first line of text under the map say?

  36. thomwatson says

    Ok… I think I see now what you’re saying. You’re focusing on those states that don’t have a constitutional ban as being able to be moved into the marriage equality column relatively more easily or sooner, while I was focusing on the 31 that do have constitutional bans and that will will be tougher to move. Your comment to me that “it’s not so simple as that” threw me, since it seems rather than you mean it’s more simple than I suggest, not less so.

    So do you believe, then, that the number of those states than can be moved relatively simply — i.e., those few that don’t have a constitutional amendment — are sufficient to create the momentum that has been suggested SCOTUS may wish to see before establishing a national right? After all, 31 states with constitutional bans, even if all the others could be moved to marriage equality, is still a far cry from the 16 with interracial bans with SCOTUS decided Loving.

    I’m not sure what the first sentence under the map has to do with the discussion though, since it refers to the number of states that offer same-sex couples either marriage or some other legal status. In my comments here, though, I’ve only been discussing full marriage equality, and I’m not sure the other statuses have any bearing; in fact, of the 11 states that offer some other legal status, eight of them nonetheless ban marriage, and six of those do so within their constitutions.

    In any case, I’m actually not as pessimistic as my specific argument with your original assertion might seem to suggest. Personally, and more generally, I believe that SCOTUS will in fact overturn DOMA next year. And I suspect they might even overturn Prop 8 at the same time, but if so likely only narrowly enough (or by finding there was no standing to appeal) that it will apply only to California. And I do believe the Court will rule for nationwide marriage equality, if they don’t surprise me by doing so next year, then certainly within two decades.

  37. slc1 says

    Re thrnwatson @ #37

    Relative to the situation in California, Prop. 8 was enacted by majority vote as an amendment to that state’s constitution. As I understand it, it could be overturned via referendum by a majority vote. The situation in California is ridiculous, allowing the state constitution to be amended by majority vote.

  38. barrydecicco says

    “I think he has a point, but that last sentence is wrong. Same-sex marriage will enjoy the same legitimacy that interracial marriage now enjoys at some point in the future; the only question is how long it will take and what path will get us there. But I do think he has a point that, looked at through the lens of history, it will take less time for that view to become ingrained in the culture if the battle for equality is won first at the ballot box before winning in the courts.”

    Which way did it go for interracial marriage?

    Also, f*ck ‘Even the Liberal’ New Republic. They’re still in love with ‘contrarianism’, where that means advocating for right-wing positions under ridiculous theories about how losing is winning.

  39. thomwatson says

    @slc1 #38:

    Relative to the situation in California, Prop. 8 was enacted by majority vote as an amendment to that state’s constitution. As I understand it, it could be overturned via referendum by a majority vote. The situation in California is ridiculous, allowing the state constitution to be amended by majority vote.

    The situation here in California is indeed quite ridiculous, and it gets potentially more so. California law distinguishes between “amending” and “revising” the constitution (though there is language describing the difference — revisions are more “substantial” than amendments — it never has been clearly delineated by the courts) and makes the latter much harder to do, requiring a 2/3 vote of the legislature and then a majority of the popular vote. Many of us believed that Prop 8 was properly a revision — it removed a constitutionally guaranteed right, which appears pretty substantial in its effects, applying to a significant body of California family law — rather than an amendment, and therefore should not have been able to be passed in the first place. The California Supreme Court, however, disagreed.

    But those who put Prop 8 on the ballot have maintained that to remove it would be a revision rather than an amendment. I’m not sure how they square that with their assertion that to add language taking away a Constitutional right is an amendment but to remove that language is not, but I’m sure they’ll argue that, in order to slow or derail the process, should we have to go back to the ballot to repeal Prop 8. It’s largely academic, though, since we’ll have the 2/3 vote of the legislature should we have to go that route.

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