Wednesday, November 11, 2009

FLG's Stance On Gay Marriage

Lots of people don't get it, but here it is:

Ask me to vote on a referendum to legalize it and I'd vote in favor of same sex marriage.

Ask me to vote on a referendum to overturn a legislative decision that legalized it and I'd vote in favor of gay marriage.

Ask me to vote on a referendum to overturn a court decision that legalized it and I'd vote to overturn gay marriage in the hopes that it would be re-ratified by the people. I just hate courts making these types of decisions.


Withywindle said...

Seems understandable enough to me. But that's probably one strike against you.

dance said...

Understandable enough to me too.

I'm curious, though, about how "hate courts making these decisions" as a general principle fits with examples such as Loving v. Virginia and Brown v. Board. If courts hadn't made those decisions, (if it had been left up to the states or legislation), how do you think change would have come about? What's the difference between those issues and this one?

Also, why is the principle that the courts shouldn't make these decisions more important to you than the principle that would lead you to vote in favor of same-sex marriage?

dance said...

Er, I think by "understandable enough" I must have meant "a very nice clear statement." :-) Because while I understand what you said, I don't understand how it fits with things you didn't say, but that surely exist.

dance said...

Also, if a court decision is put to a referendum, why isn't that opportunity for ratification enough? Why must it be overturned and then re-ratified?

Sorry! Must learn to think longer, and go brush teeth, make tea, etc before hitting publish!

FLG said...


If you asked me at the time whether I would be for the court decisions in Brown or Loving, I'd probably say no. But, like in this case, I'd be in favor of the outcomes though decisions had.

The change would have come about legislatively or via popular referendum eventually because I have faith in the fundamental decency of the American people.

"why is the principle that the courts shouldn't make these decisions more important to you than the principle that would lead you to vote in favor of same-sex marriage?"

The power of the government derives from the people. Courts are the furthest removed from the people because of both lifetime appointments and by virtue of the requirement that they possess graduate education. The decisions of judges are therefore poor representations of the popular will, and I often question where something that has existed for decades or centuries can all of a sudden be ruled unconstitutional when it wasn't previously.

So, instead of undermining democratic principles, in an admittedly more expeditious fashion toward goals, I vastly prefer that people make their case of broad and long-existing injustice to the people and their representatives than using the courts.

"Also, if a court decision is put to a referendum, why isn't that opportunity for ratification enough? Why must it be overturned and then re-ratified?"

It's the people's only chance to check the overreach of court decisions and even if I agree with the results of that overreach, I'd rather these types of things be put through the public and their representatives.

So, I have an issue with the relatively undemocratic nature of court decisions, and especially ones that result in sweeping change. But I also think that sustainable change is more likely to come about if worked through the public rather than through court decisions even if it takes longer.

dance said...

"The change would have come about legislatively or via popular referendum eventually because I have faith in the fundamental decency of the American people."

Really? I don't---or rather, I might have faith in the fundamental decency of most individuals, but not that such decency will consistently win out at the collective or institutional level. It took a war over politics to end slavery. The Japanese internment was partially driven by hysteria among the American people.

I'm trying to imagine a progression of American history that would have legislated legal interracial marriage in all states, but I don't really have the background.

It's perfectly possible to be a fundamentally decent person and think "separate but equal" makes a lot of sense, and that kids with richer parents should have access to better schools---those ideas are still with us in girls' schools and local school funding. So, why would the fundamental decency of the American people ever lead to a rejection of those ideas for racial segregation?

dance said...

Oh, wait, how could I forget? Re Loving, here's a JP, elected by the will of the people:

Also, you yourself have said many times (and I disagree) that slavery only ended when industry offered the labor power to make abolition an economically feasible choice. How does that square with your belief in fundamental decency? Are Americans different from the rest of the world?

And, why is democracy more important to you than justice?

Andrew Stevens said...

Dance, I'm half on your side and half on FLG's. In the late 18th century, it was generally agreed, even by Southern slaveholders that slavery was doomed for moral reasons. But then economic reasons (the invention of the cotton gin) revived slavery and the rationalizations started coming. Jefferson and Washington talked of slavery as a necessary evil. John C. Calhoun defended it as a positive good. It was due to the economic success of slavery that a war was required to extirpate it.

When we come to your examples, Brown and Loving, I think I'd split the baby. It is not clear to me that segregation ends in the South without Brown. As long as the South had Constitutional cover, they were likely to continue segregation. It's not clear how long they could resist since segregation was part of what kept the South economically backward, but it is not 100% clear to me that segregation falls without the Court's intervention. Of course, the Supreme Court should never have given them Constitutional cover in Plessy which violated the clear intent of the Fourteenth Amendment so Brown was simply rectifying the Court's own mistake. (There is no question that the intent of the Fourteenth Amendment was to end racially disciminatory laws and everybody agreed with that interpretation until the end of Reconstruction.)

By the way, the real issue with "separate but equal" is that it was never equal. Legislatures never had any intention of giving blacks equal educational facilities to whites and they never did. And that's why fundamental decency insists that the charade be ended.

On Loving however, I think FLG is right. By 1967, the die had been cast (granted, partly as a result of Brown) and interracial marriage laws were doomed nationwide. Prior to 1948, 30 out of 48 states had laws against interracial marriage. From 1948-1967, 14 states overturned their laws, only one of them (California) through the courts. Oregon (1951), Montana (1953), North Dakota (1955), Colorado (1957), South Dakota (1957), Idaho (1959), Nevada (1959), Arizona (1962), Nebraska (1963), Utah (1963), Indiana (1965), Wyoming (1965), and Maryland (1967) all did so through their legislatures.

The South was going to continue to hold out for a while, but they'd all be gone by now, even absent the Court's federal intervention, bar maybe South Carolina.

Andrew Stevens said...

Dance, your claim about the Louisiana Justice of the Peace is laughable and demonstrates FLG's point rather than yours. He didn't get elected on a platform of "I'll refuse to conduct interracial marriages" and once people figured out that he was refusing to conduct them, he was forced to resign.

Democratic Senator Mary Landrieu said, "Bardwell has finally consented to the will of the vast majority of Louisiana citizens and nearly every governmental official in Louisiana. Bardwell's refusal to issue marriage licenses to interracial couples was out of step with our Louisiana values and reflected terribly on our state. We are better off without him in public service."

Republican Governor Bobby Jindal said he believed Bardwell should lose his license.

Andrew Stevens said...

I will preemptively apologize for my use of the word "laughable" above, which was needlessly antagonistic and escaped my editing. Mea culpa.

dance said...

No, the LA JP *was* kinda laughable, we'll set it aside.

But I think most of your examples prove my point, Andrew---fundamental decency wasn't enough to end slavery; "bar South Carolina" undermines the entire premise that fundamental decency will win out (segregated proms in Miss. are perhaps another laughable example? :-) ); and the ability of people to lie to themselves about the charade of "separate but equal" cannot be underestimated.

What examples make FLG so confident that we can rely on fundamental decency to overwhelm the fear of difference? Why doesn't fundamental decency generate pro-gay-marriage amendments, instead of vice versa?

Andrew Stevens said...

It was "bar maybe South Carolina" and I think South Carolina will get there eventually as well. I'm just not sure if they're there yet or not. (I mean no offense to the good people of South Carolina. If anyone here is from South Carolina and wants to argue that the majority there definitely have no problems with interracial marriage, I'm prepared to believe you.)

Partly, the problem here is just your impatience. I have no doubt that the gay marriage thing will eventually win and I'm willing to wait the twenty or thirty years it might take to get there in a proper and orderly fashion. (Easy for me to say, I know.) The amount of progress gays have made in just the last twenty years is, frankly, breathtaking. Now, if gays were enslaved, then I'd be on the impatient side. I have no truck with the people who excoriate the Union in the Civil War because "slavery would have died eventually without a war anyway." This ignores the very real harm which would have been done to slaves in the meantime. But nothing very bad is going to happen to those gays who can't marry. It probably strengthens their unions, actually, in a "you and me against the world" sort of way. In most states, they've already got most of the serious legal rights - visitation, etc. or can easily obtain them.

The same domino effect we saw on interracial marriage will eventually take place on gay marriage (probably). But recall that this is a much more difficult problem. Banning interracial marriage was obviously just bigotry. But this is not true with gay marriage. As the New York Court of Appeals put it, "The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude."

In addition, there's the very real problem of polygamy. If courts decide that disallowing gay marriage is unconstitutional, the same reasoning almost certainly can and should be used to legalize polygamy. If you're like me, you're fine with that as well. But the majority of gay marriage supporters are not.

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