Holy Cow, I Agree with Maureen Dowd
Posted on March 27th, 2013 in Uncategorized | 4 Comments »
She writes a good column about the intellectual silliness of the Supreme Court’s apparent reluctance to overturn California’s Proposition 8.
“Are we moving too fast?” wondered several of the justices.
The simple answer is: No. The slightly more nuanced answer, “Well, I’m gay and have been denied equal rights for my entire life—how much longer would you like me to wait?”
But most of all, something’s either unconstitutional or it isn’t, right? You can’t say, “Well, it’s unconstitutional but I’m kind of scared by this change (ooooh, it’s fast!). So let’s let it be unconstitutional for a while longer and then, when we elderly folk feel ready, we’ll do something about it then…”
I understand the concern that a Supreme Court decision making bans on gay marriage illegal would be deeply divisive in the same way that Roe v. Wade was.
But on the other hand, how do you tell a gay person that he or she is right, but they’ll have to wait a little while till the bigots aren’t bigoted any more…
4 Responses
3/27/2013 5:50 pm
Intellectual silliness?
Matrimonial law is statutory law. If you find the statutory law disagreeable, you can attempt to re-write it making use of ordinary political processes. It would only be legitimate to invalidate provisions of the statute if they conflicted with constitutional provisions. Given that the notion of “gay” “marriage” never occurred to anyone prior to about 1987, the notion that the do so conflict is, plainly put, silly. You might just attempt to use the electoral process rather than expecting misfeasant jurists to toss you little bon bons.
3/27/2013 7:55 pm
AD, I get the logic of that argument, except that it applies equally to interracial marriage, doesn’t it? There were states where miscegenation was long an unspeakable abomination, and the state laws simply codified the consensus view of the god-fearing majority. Did the Court over-reach by declaring those laws unconstitutional, over the objections of the good people of those states? After all, it was just following the vector of public opinion. The laws were on the books for hundreds of years without being overturned, and then one day poof, those activist judges decided they had been unconstitutional all along. A mistake?
3/28/2013 8:15 am
Harry Lewis, the following seems fair:
1. The positive law is the positive law, whether you like it or not. Constitutions delineate a political architecture and they place certain questions beyond the will of a temporary legislative majority. State constitutions and local charters commonly have a number of additional provisions, mostly having to do with public finance. There are occasions where constitutional provisions are crapped up with language best suited to statutory law (e.g. the 18th Amendment). Constitutions are not omnicompetant. If you do not care for the precise delineation of privileges and immunities, there is an amendment procedure. If the functional content of constitutional provisions is subject to change due to intellectual or moral fashion, those procedures are a sham (indeed, the notion of considered popular enumeration of privileges and immunities is a sham). That may not bother you, because the faculty and the judiciary socialize together and share a worldview against the rest of us. The rest of us do live here, however.
2. I have friends, too, Dr. Lewis, some of them very dear to me. Nothing about our affiliation is recognized in law and it never would be unless we formed some sort of business partnership. I do all right and so do they. However, a discrete minority fancies that their practice of sodomy entitles them to public and legal recognition while everyone else makes do without it. Blow jobs are just not that important.
3. There are caste societies hither thither and yon which have had formal restrictions on inter-marriage. That is not the way people usually do business and I think it is atypical even in multi-racial societies like Guyana, though you would have to ask and anthropologist about that. There were anti-miscegenation laws in the the South, though not altogether limited to the South. (IIRC, they were of 19th century origin). These reflected an understanding of race relations which had it that white and black interacted strictly as patron and client and that white families employed black families but were not kin to black families. That understanding of race relations was pretty local to time and place. It did not apply in France (where blacks were exotic) and did not apply in New York (where relations across the color bar were one element in a tapestry of ethnic rivalries). There was a good deal more social resistance to miscegenation than there was to ethnic intermarriage; the black world is a society within a society in a way other ethnic agglomerations are not (and cannot be). However, informal social relations is not what you all are concerned with here.
4. It is at least a passable argument that the 14th Amendment, which had as a purpose the annulment of post-bellum Black Codes and the extension of various rights of citizenship to blacks, incorporated an understanding of race relations incompatible with the antecedents to anti-miscegenation laws. A passable argument, not a slam-dunk. You are going to have to excuse me if I cannot figure how a phrase whose plain meaning is an admonition to the executive to enforce statutory law impartially (“equal protection of the laws”) requires the adoption of a substantive public policy of issuing marriage licenses to pairs of dudes. How can a law be binding when it is just an excuse to play intellectual games (manifested judicial opinions 136 pages long, because when you are doing something unjustifiable, concision and clarity are your enemy)?
5. As I say, the rest of us live here and just might like some say as to what value to endow to certain sorts of human relations, the strata of value between different sorts of affiliations, what to call them and how to describe them. All of that includes the legal obligations which are assumed when one enters into relations.
6. Again, no one gave any thought to this as recently as 25 years ago. To say that this is some sort of natural right we are all bound to respect or some established principle of common law is facetious. It is an understanding of human relations which is quite novel. Why do we properly have no choices here about the change in direction of public policy?
7. I was born into a society of families. I would prefer to live in a society of families (which, regrettably, has not been the case since about 1970 or so). I do not wish for public policy to render things worse than they already are. Homosexual relations are sterile. The nature of relations in households populated with homosexuals is user-defined and not subject to any sort of salutary cultural script. Reconstructing a society of families is not a project advanced by solicitude to homosexuals. Reconstructing a society of families requires an end to unilateral divorce on demand, an end to abortion, and a restoration of an understanding as to what constitutes trashy behavior (which has a great deal to do with the conduct of young women and very little to do with drag queens).
8. Sodomy and various sorts of behaviors surrounding it are transgressive. The transgressive should be ignored as much as possible, not subject to public celebrations. (Most particularly, the Knight of Columbus should have the autonomy to tell Adam and Steve to take it somewhere else).
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