For the democratic process…

Lisa Kramer

Lisa Kramer is a contributing contributor at The League of Ordinary Gentlemen.

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30 Responses

  1. Jason Kuznicki says:

    I am not at all saying that the problem here is that voters are ignorant. Nor am I saying that the case means that they were faulted for their ignorance. If I were to say that, I’d have to be consistent — and say that we need to throw out all referendums, because it’s indeed my view that voters are quite ignorant in general. That’s not what I’m saying.

    I am saying that even so-called experts on the anti-SSM side were totally unable to put forth reasonable arguments and cogent evidence. This isn’t about voter ignorance at all. It’s about an intellectually bankrupt position, one that can’t be supported no matter how smart or well-informed you are.

    I don’t imagine that David Blankenhorn in particular is stupid. I just think that he’s been backed into a corner and is now unable to change what he believes. Which is unfortunate, because there are strong hints in the testimony that even he doesn’t believe what he’s saying with any degree of conviction.Report

    • @Jason Kuznicki, OK, I’ll revise “voter ignorance” to “choice that cannot be rationally supported.” Either way, I still don’t see how the merit of an argument is relevant (in court, I mean) to whether a majority vote is legal.Report

      • Jason Kuznicki in reply to Lisa Kramer says:

        @Lisa Kramer,

        It’s not the vote that is being challenged. It’s the legislation. Saying that no referendum need ever pass even rational basis review is a degree of deference that I don’t think has any parallel anywhere else in the legal system, short of jurisdiction stripping, which remains a very controversial and rarely used maneuver in itself.Report

        • Kevin in reply to Jason Kuznicki says:

          @Jason Kuznicki Lisa. Imagine the following scenario. John is living in a small town with a single intersection. This town has a population of only 100 people and there has never been much traffic. So, local officials placed a Yield sign at the intersection and policed traffic accordingly. The town was so small that everybody knew there was a Yield sign at the intersection. Everybody saw it. Everybody talked about it. It was common knowledge. The town loved it so much they voted to keep it in place!

          Only the town did not realize that they were living in a state that had rules regulating what signs could be at intersections. Some intersections were required to have Stop signs, some were required to have traffic lights, and some were required to have Yield signs. After inspecting the intersection in John’s town, the state decided that this particular intersection met *all* the requirements for a Stop sign and *none* of the requirements for a Yield sign. After all, the state adopted these rules because they had a valid interest in doing so; the state wanted to protect the safety of all of its constituents!

          John grew very upset when he saw construction workers replacing the Yield sign with a Stop sign. John loved that sign. John had grown up with that Yield sign, played twirl-y-go on that Yield sign, even got married next to that Yield sign. John was so enamored with that sign because that sign was part of his town’s tradition and history. So John decided to do something; he decided to use the state’s initiative process to put the issue up for a vote (again)! John only knew about 35 people in town, so he enlisted a far-off Church from another state to help convince the other 16 constituents he would need to win the vote. With a little advertising, and an influx of money, John won! 52 people in his town wanted to replace that Stop sign with the sign that was there before it.

          Question: WHY should John’s referendum compel to state to replace one sign with another? WHY should a popular vote overrule the state’s interest in safeguarding its population from automotive accidents and institute a policy that is potentially detrimental to state and local interests? WHY should a bare majority’s nostalgia for the by-gone Yield sign sway a court of law?Report

      • Gorgias in reply to Lisa Kramer says:

        @Lisa Kramer,

        It does seem like the rational basis test is a recipe for judicial activism, but the law evolved in such a direction for very good reasons. In a nutshell, we need an anti discriminatory framework that will protect minorities from unfair hiring practices without leading to some absurd conclusions. If we give the much less open-to-interpretation strict scrutiny to every group we want to protect, we’re lead to absurdities that make the Catholic church hire non-Catholics to lead masses. But clearly we need some kind of protection against discrimination based on religion. Our only option, then, is to allow the courts to make a judgment call every once in awhile, even if it looks like, and often is, a court second-guessing the policy rationales of the expressed will of the public.Report

      • Michael Drew in reply to Lisa Kramer says:

        @Lisa Kramer, It seems to me the problem here is having a constitutional amendment procedure that gives itself over to a bare majority vote on a referendum, is it not? Prop 8 was an amendment to the California constitution, which became “necessary” because courts said that under the existing California constitution it was a violation of equal protection (was it that?) not to recognized SSM. Anti-SSM forces didn’t want to accept this, and the only reason they didn’t have to is that it is far, far too easy to amend the California constitution. A constitution that purports to protect minorities can’t very well do so if a bare majority can change it to no longer protect certain ones. The U.S. constitution was made quite difficult to amend for this reason. There are good reasons states might want to make their processes somewhat less daunting, but I think there is a level of supermajority that we can say shouldn’t be breached lest the notion that a state constitution is any protection at all against an exercized bare majority – or even a minority who can float a ballot initiative and then sell it on poor evidence and emotional appeals – is rather an empty one. I am not saying states shouldn’t allow ballot initiatives, but I am saying that the very idea of a constitution requires some level of supermajority bar to amendments to have much value, and I suspect if that were the case in California, we wouldn’t have to be having this conversation.Report

  2. Ryan Davidson says:

    It’s about an intellectually bankrupt position, one that can’t be supported no matter how smart or well-informed you are.

    Really? Really?

    See, this is what bothers me about the decision. I’m actually sort of okay with the legal side of it, as I can read the Fourteenth Amendment as requiring it if and only if you make certain metaphysical assumptions about the nature of the human person, the morality of human sexuality, and the operation of the human family.

    But what you and Judge Walker are saying is that it is categorically irrational not to make those assumptions. So, in essence, believing in a normative sexuality, or indeed, believing that sexuality has any moral valence beyond whether or not it is consensual, is defined as irrational. Ethics is limited to utilitarian consequentialism.

    This seems far too ambitious, and indeed, imperialistic, for my taste. Ultimately, if the ruling is allowed to stand, it is easy to see how it could be the foundation for overturning any legislative or judicial action predicated on the belief of the populace that a certain activity is immoral on any ground other than its net social utility.

    If you want to say that we’ll simply have to disagree about the moral valence of homosexuality, hey, I’m all for that. But this ruling says that even if we are allowed to disagree, that disagreement cannot be the basis for political action. It says that the body politic is categorically and constitutionally prohibited from declaring certain activities to be socially unacceptable because of the body politic’s consensus about morality.

    Why am I not supposed to be bothered by this?Report

    • Jason Kuznicki in reply to Ryan Davidson says:

      @Ryan Davidson,

      Have you read the testimony? Not just the decision, but the testimony? It was sad. You have Miller on the stand admitting he doesn’t know hooey about gay and lesbian politics, and Blankenhorn admitting that same-sex marriage would make America “more American,” among other gems. If this was the best they could do, then irrational starts to sound like exactly the right word. The rational basis test needs to be something more than just “whatever the State says is rational” — and this case, among its many other virtues, puts us on the path to a real, genuine test, not just automatic deference to whatever the government wants.Report

      • Ryan Davidson in reply to Jason Kuznicki says:

        @Jason Kuznicki, it would be one thing if Judge Walker had handed down a narrow ruling holding that the defense had done a shitty job.

        But he didn’t do that. He cited O’Connor’s concurrence in Lawrence: “‘[M]oral
        disapproval, without any other asserted state interest,’ has never been a rational basis for legislation.”

        In essence, the decision is expanding the trend of prohibiting legislation on the basis of commonly held moral intuitions. Some non-moral argument must be presented. Ergo, unless one has a non-moral argument for a particular, one’s beliefs are excluded from political consideration as irrational.

        I am not sure that describes a society in which I can live comfortably.Report

        • @Ryan Davidson,

          The vast majority of legislation isn’t held up to a rational basis test. A court finding of irrationality is, thank goodness, not justification for overturning a law absent other factors. AFAIK, a rational basis test only applies in equal protection claims for suspect classes.

          In other words, the ruling will only apply to laws discriminating on the basis of veteran status, sexual orientation, religion, and gender, among other groups. This might be bad for a traditionalist like yourself but it’s hardly Armageddon.Report

      • @Jason Kuznicki, the thing that worries me is that this is probably not the best that the anti-SSM movement can do. This was the best that these particular lawyers could do, and it’s clear enough to me that their entire strategy at the trial court level was to win on summary judgment on the strength of the rational basis test. It never occurred to them that there was a realistic threat of a finding of “no rational basis” and they could not identify a “compelling state interest” as a fallback justification for the SSM ban. Other lawyers, perhaps more clever and resourceful lawyers, may well be able to do better and learn from this trial.

        What worries me is the rising tide of claims that the anti-SSM side didn’t get a fair shake. It’s easier to accept a decision adverse to your preferences or interests if you feel like you got a fair shake. It’s fuel to the fire of a social conservative movement already animated against “activist” judges and the rule of law. It could be a new Roe v. Wade that way.

        For myself, I applaud the result and I say to the lawyers for the proponents, “If you can’t take a fast inside pitch, you don’t belong in Yankee Stadium and it ain’t the umpire’s fault if you strike out there.” But that isn’t how the anti-SSM forces are going to see it.Report

    • @Ryan Davidson,

      Setting aside the decision for a moment-

      This bisexual Platonist takes exception to the scurrilous notion that promotion of sexual freedom necessitates utilitarian consequentialism. Your side is not the only one that has a vision of the good life beyond simple utility. An acknowledgment of the multitude of ways that a person can flourish as a sexual being does not imply an abandonment of the values that makes that flourishing possible.Report

      • Ryan Davidson in reply to James Vonder Haar says:

        @James Vonder Haar, that just gets at what I’m talking about: competing visions for what constitutes the good life.

        Judge Walker’s ruling may well have the upshot of ruling that the traditional Christian concept of the good life is irrational as a matter of law. Again, I cannot help but think that this is a bad thing.Report

    • ThatPirateGuy in reply to Ryan Davidson says:

      @Ryan Davidson,
      You mean that your not ok with the constitution being used to protect the rights of unpopular minorities?

      What I and the rest of California got together and decided that members of the KKK are not allowed to raise their children because they will teach them to be racist?

      What if we decided to ban the planting of dandelions because they attract space aliens?
      Require that all bibles be printed with a yellow book cover to prevent mind control?
      Ban dancing because it encourages sex?Report

      • Robert Cheeks in reply to ThatPirateGuy says:

        @ThatPirateGuy, Why do we bother to f*ck around with a democracy/republic and just follow a fearless leader? Because ‘fearless leaders’ tend to be more f*cked up than the unwashed.Report

        • ThatPirateGuy in reply to Robert Cheeks says:

          @Robert Cheeks,
          I seem to remember a group of wig wearers who thought that government should represent the will of the people, but were deathly afraid of mob rule. What I have heard is that they set up a government with checks and balances with the court system being a big factor.Report

          • Robert Cheeks in reply to ThatPirateGuy says:

            @ThatPirateGuy, TPG, I’m no fan of ‘democracy’ what with how easily one buys the misinformed, ignorant, or lazy but my knickers tend to tighten when referendums are overthrown by leftist, judicial activists or are we on the same page?Report

            • Katherine in reply to Robert Cheeks says:

              Can you explain why someone who Reagan tried to appoint, Bush Sr. appointed, and gay activists and Democratic members of the current Congress opposed, is a liberal? Other than “I disagree with his ruling on this case”?Report

    • Kevin in reply to Ryan Davidson says:

      @Ryan Davidson, You should not be bothered by this because you incorrectly understand the scope of Walker’s opinion, the 14th amendment, metaphysics, rational basis review, and utilitarianism.

      To begin, Walker is a judge working within the confines of the law. Nothing in yesterday’s decision orders you or anybody else to repudiate “normative” views of sexuality or sexuality’s “moral valence.” Its only requirement in this respect is that if you do have these opinions, and you work as a county clerk, you need to issue marriage licenses to same-sex couples regardless of your personal views.

      Your utilitarian “conclusions” are ridiculous. Walker is not claiming that the State can *never* discriminate, he is only articulating the long-standing view that the State needs a compelling reason to do so. Your assertion regarding the utility of this ruling as a means to “overturn any legislative or judicial action predicated on the belief of the populace that a certain activity is immoral” makes very little legal sense to me since laws (of which very many are moral and aim to direct individuals toward moral acts) are not mores; they are laws. They are not judged on the basis of whether or not they are *moral,* but on whether or not they are *legal/constitutional.*

      Furthermore, your political action is in no way constrained by this decision. (I think you are confusing political action with actual legislating.) You are free to vote for people who think it’s wrong for two gay men to marry, free to donate money to their campaigns, free to organize groups around the issue, free to distribute literature to interested individuals, free to write on this blog. Hell, you are also free to be a defendant intervenor in Perry, to go before the appellate court and convince the panel or en banc that there IS a compelling state reason to deny marriage licenses based on this suspect classification! You have every bit the same amount of political power as you did yesterday. The only thing you DON’T have is a law that you like. These are NOT the same thing.Report

  3. This notion that in order to be democratic a process must be open to every whim of the majority is just spurious. I once had a horrible time procrastinating writing a paper, and decided to give my internet cable to a friend, who would not give it back until I could show her a rough draft. The constitution is somewhat similar. The American people wisely decided that some things ought to remain outside the vagaries of day-to-day democratic impulses. The first of those were the right to bear arms, to speak freely, and to be safe against unreasonable search and seizure. We later added the right to equal protection under the law.Report

    • Ryan Davidson in reply to James Vonder Haar says:

      @James Vonder Haar, okay, fine, but we also all recognize that not everything is a matter of equal protection. You can’t show hardcore pornography on broadcast television or basic cable. You can’t pay for sex. You can’t use narcotics without a prescription. Etc. We’ve got all sorts of regulations which are predicated on the moral sentiments of the community. If we can do that elsewhere, why can’t we do that here? Particularly for something as essentially ethical as the nature of human relationships?Report

      • North in reply to Ryan Davidson says:

        @Ryan Davidson, Yes and each of those policies have a long line of experts and rational people behind them ready and willing to testify to why they are good policies and worthy of keeping. When Judge Walker called for similar experts to stand up and make the substantive case for banning gay marriage… … … crickets.Report

      • @Ryan Davidson,

        As far as the courts are concerned, you can’t do that here because doing so is discriminatory against a suspect class, the gay and lesbian community, which per the 14th amendment requires a rational basis test to be upheld.

        Honestly, though, that’s a cop-out, and your question deserves a better response. While I do think that the sweep of this case in particular will be less than you believe it to be, it’s true that it is the culmination, or in any case part of a growing sentiment, in the direction you’re pointing to, and not simply in the realm of law. Those things that were once a matter of public morality, whose discouragement was effected through both law and custom, have entered the private sphere where law is not permitted to go and where it is improper for custom to go. What I’m trying to figure out is why this is so threatening to so many of my fellow countrymen, why this development has you wondering if you can live in a society comfortably. I realize my conduct over the past few days has not exactly been conducive to polite discussion, but please believe me when I say that, at least here, I really am trying to figure out what it is that I’m missing. Isn’t it a great thing when people have more choices? When the path to flourishing becomes a bit less narrow? When those of us just a bit skew to normal find a niche and manage to carve out something from society? Reading over those questions, they seem disingenuous, a rhetorical flourish, but I mean them earnestly, not simply as a way to paint you into a corner of defending lesser freedom.

        What I do know is that rolling back the realms subject to moral condemnation and the interference of custom and law has allowed more and different kinds of people to become fully functioning and happy people. What’s threatening about that?Report

        • Ryan Davidson in reply to James Vonder Haar says:

          @James Vonder Haar, what you’re missing is the fact that a lot of people, including myself, are operating with a moral framework that isn’t as malleable as yours seems to be. “Rolling back the realms subject to moral condemnation” just isn’t something I, or most people that operate with something resembling orthodox Christian morality, can do. If something is wrong, it’s wrong, and that’s about the end of it. “Fully functioning and happy” is something that comes with a pre-loaded definition and isn’t something we get to decide for ourselves.

          That’s right: I’m saying that it’s sometimes bad when people have more choices.

          I fully realize that this sets me completely at odds with the dominant culture, but I make no apologies for that.Report

      • Kevin in reply to Ryan Davidson says:

        @Ryan Davidson, Not a single item mentioned here discriminates. It is just as illegal for a gay man to pay for sex as a straight man. It is just as illegal for a black man to use and sell crack cocaine as a white man. There is no basis for equal protection review since no community, class, etc. is treated differently under these regimes.Report

  4. North says:

    Lisa, if the same sex marriage movement or the gay rights movement were some form of centralized mafia or single outfit I’d agree. But it isn’t. For good or ill it’s a huge cobbled together bunch of advocacy groups and people with the time or interest to pursue stuff like this. It only really took a small handful of people to launch the challenge. Was it a strategically bad idea, I’d say it’s entirely possible so, but there’s not a way to prevent it. Not even the SSM supporting groups could have prevented this bunch from launching their lawsuit. They could have withheld support and amicus briefs once it was under way but why on earth would they risk that and accept a negative ruling?

    And while I agree that the best course is advocacy and legislation I can’t help but bridle a bit at your definition of soon. I have an eleven year dedicated relationship that I had formalized in Canadia last year. In the US? Meaningless. I don’t want to talk about the lawyer fees we’ve had to shell out to construct out of private contracts an imitation of civil marriage. Soon? Maybe in terms of the grand sweep of the nations history. But to a person the road seems so long. So very long.Report

  5. Mike Farmer says:

    Tyranny of the majority is something that will destroy America. On this issue, I’m for taking the question altogether out of the hands of government, but if you are going to depend on goverment to make rules regarding marriage they can’t be rules unfair to a minority, and we damn sure don’t need government making laws based on what they think is moral. As long as coercion is not involved, government should really have no say in it, although they have a say in just about everything.Report