I’m still wading through the text of the Perry decision, but this post sums up my feelings on the legal strategy of gay marriage advocates:
The optics are uniquely bad — a federal judge imperiously tossing out a public referendum enacted by citizens of one of the bluest states in America on the shoulders of a multi-racial coalition. If the goal of gay-rights activists is to make same-sex marriage palatable to the public, then embittering opponents by torpedoing a hard-fought democratic victory seems like … an odd way to go about it. The response to that will be that equality can’t wait, just as it couldn’t wait vis-a-vis school desegregation in the 1950s. Except that (a) no one, including gay-marriage supporters, seriously believes that the harm here is as egregious as the harm to blacks under Jim Crow, and (b) there was no assurance of a legislative solution to racial injustice in the 1950s the way there currently is for gay marriage. A strong majority already favors civil unions; as I noted earlier, opposition to same-sex marriage is in decline and down to 53 percent. When polled, young adults are invariably heavily in favor, guaranteeing that the legal posture on this issue will shift further over the next decade. The real effect of this decision, assuming it’s upheld on appeal, will be to let gay-marriage opponents claim that they were cheated in a debate that they were losing and bound to lose anyway. That’s what’s called a pyrrhic victory. Too bad.
If courts shouldn’t be used to overthrow unconstitutional laws – whether those laws are made by a legislature or by public referendum – they why do courts have that jurisdiction in the first place? The recent Supreme Court case on gun laws threw out a lot of gun restrictions passed legislatively, presumably with voter support, and there isn’t some giant kerfuffle about people have “cheated” or defied democracy on that one.Report
@Katherine, Well, there was such a kerfuffel, it’s just that the group complaining about it has close to exactly zero overlap with the group complaining about this decision.Report
@Katherine,
I’m with Katherine here. Just because a majority people want something doesn’t make it right. People make bad laws all the time, the purpose of the courts are to be check on that. That people don’t like that, is to my mind, irrelevant.Report
@Tyler,
The problem Will identifies is not one of justice, but of timing and tactics in achieving a form of justice that will last.
I’ve read the whole decision now. I find it very persuasive, well-reasoned, and necessary given the facts as presented in the case. I’m not always comfortable with either marriage as a status or with suspect classes, but both of these seem to have been forced on the court by legal necessity, so I’ll let them go.
The real question is whether this was the right time to bring a lawsuit — by which I mean only: Given the suit’s timing, is the outcome likely to last? I fear that it won’t.Report
It’s only a Pyrrhic victory if it results in a Constitutional Amendment, no?Report
@Jaybird, Well, it could also be a Pyrrhic victory if the ruling hardens anti-gay sentiment.Report
@Will, I don’t know but it seems to me that sentiment has been slowly but surely improving over the last couple of decades.
If this isn’t going to result in a Constitutional Amendment, it’s little more than a bump.
Big “if”, I know.Report
It’s like a pyrrhic victory, only the winners of it are apparently destined to win in the long term too.Report
As a conservative I think I’m moving pretty quickly past trying to fight off SSM, which seems inevitable in one way or another, towards fighting a rear-guard action (no pun intended) to protect the conservative legacy regarding this struggle. The Right has been unfairly maligned for 40 years regarding our position during the Civil Rights Movement, mostly because a few disgruntled Dixeicrats found a home in the GOP after desegregation. Opposition to gay marriage has transcended political labels, race, religion, etc. The problem is that if the Left has it their way this entire debate will be distilled down to, “A bigoted minority of Republicans were the only ones who fought gay marriage and see how silly they look now when it’s been the law of the land for 20 years.” Luckily there is a long list of state bans on gay marriage to point to as evidence that opposition was the majority opinion.Report
@Mike at The Big Stick, To “protect the conservative legacy,” you want to point out the GOP had company in being bigoted? That’s a defense???Report
@Gold Star for Robot Boy, I don’t believe it’s bigoted and I think you probably read that in my comment.Report
@Mike at The Big Stick,
Why isn’t it bigoted? The content of the belief or approach determines this not the intention.Report
@ThatPirateGuy, If I say it’s wrong to put cheese on chinese food, is that bigoted or simply a difference of opinion?Report
@Mike at The Big Stick,
Difference of opinion.
If you say it is wrong for Chinese people to be have the right to eat cheese it is bigotry.
Spot the difference?Report
@Mike at The Big Stick, If the only reason a person can give is, “Because that’s gross” then sure, it’s bigotry. I think, despite the poor showing by the defense in this case, that the anti-SSM position was far more nuanced than that. Opponents voiced very real concerns about the stability of families, how this affects children, whether or not this opens the door to polygamy, etc. Now they may have been wrong on all accounts, but opposition based on a legitimate concern is not bigotry.Report
@Mike at The Big Stick, “I think, despite the poor showing by the defense in this case, that the anti-SSM position was far more nuanced than that.”
Please don’t try to distance yourself from the defense as it was presented – this was the best shot the anti-SSM side had to make its case in a factual, secular, non-emotional manner, with the consequence being victory or defeat in the nation’s most populous state. But they folded. Simply couldn’t do it; not within those boundaries, anyway.
For all intents and purposes, we have seen the true anti-SSM defense – and it was badly lacking.Report
@Mike at The Big Stick,
Every single one of those arguments is exactly the bigotry that we are talking about.Report
@Mike at The Big Stick, Is it bigotry to believe that a 20 year-old shouldn’t drink but a 21 year-old should?Report
@Mike at The Big Stick,
Make a 20-year-old wait a year, and he/she will be 21.
Make a gay couple wait a year, and they’ll be…?Report
@Mike at The Big Stick, That doesn’t explain the logic behind drawing that arbitrary line.Report
@Mike at The Big Stick,
Your biggest problem will be the quotes. Just like it is now with the civil rights movement. That and the whole republicans kept making it a part of the party platform.Report
@Mike at The Big Stick, it’s nice to know you’ve got your priorities straight. As in, not what’s right or wrong, but what’s going to look good for American conservatism in 40 years’ time. Oh, and by the way, if conservatives feel they’ve been unfairly smeared as bigots, they might want to do something about the bigots in their ranks right now, rather than whine that they’ve been smeared in the past.Report
@DWP, The whole point is that opposition to gay marriage has been a conservative-only movement. You say we have bigots in our ranks but what about the black community that also supported Prop 8? Do they also have to purge the bigots?Report
@Mike at The Big Stick, Correction: …opposition to gay marriage has NOT been a conservative-only movementReport
@Mike at The Big Stick,
Prop 8 vote by political ideology:
Liberal: 22% for / 78% against
Moderate: 47% for / 53% against
Conservative: 85% for / 15% againstReport
@Bo, 70% of blacks voted in favor of Prop 8.Report
@Mike at The Big Stick,
Lots of black people are bigots towards gay people. So are lots of white people.
The common thread is religion. Lots of religious people are bigoted toward gay people because their religion taught them to be that way. All of the other arguments are smoke screens to hide the religious part.Report
@Mike at The Big Stick, I was just figuring that there was no need to swing at the obvious strawman of opposition to SSM being “conservative only” when there exists useful information on how conservative it is. The answer turns out to be extremely. I guess the counter that black people (30%) were only twice as likely as conservatives (15%) to oppose Prop 8 ‘proves’ something about conservative tolerance but I’m not sure what.Report
@Mike at The Big Stick, As a conservative too, I am sorry that you feel so apathetic (or however you would like to term it) regarding this situation. I’m also sorry that you view it as you do, because it doesn’t seem a very “conservative” opinion to me. Supporters of Prop 8 are not bigots per se. Some may be, but others, such as myself, support it for the simple reason that marriage is not an institution the definition of which can be changed to include anything but heterosexual bonds. If it is changed to include homosexual relations then it can be changed to include anything else such as polygamous relations, or relations between people and animals or people and inanimate objects. Marriage is one thing and needs to remain that way.Report
@historystudent, I think you need to re-read my comment. I was specifically saying that I fear SSM opponents on the Right will be called bigots unfairly. I don’t think most of the opposition has been bigoted. It has been based on logical concerns, some of which are starting to be addressed and some of which I would like to see more time pass on before I would consider them closed.Report
@Mike at The Big Stick, Okay, Mike. I guess I was more stuck on your first sentence than you were.
Proponents of SSM want to distil the argument against into one about bigotry. It is up to those who oppose SSM to make sure they don’t have their way and instead, as you say, steer the debate to the “logical concerns”. I’m glad we agree on that.Report
Isn’t it possible that it’s a Pyrrhic victory until it goes to the Supreme Court, where it gets overturned, but then that turns out to be a…. well, I guess the opposite equivalent would be a “Voorhean Defeat” (after the killer in the Friday the 13th movies who never dies)? I think a big part of Prop. 8 passing was that gay rights groups didn’t really expect it to pass, and sort of lacked the necessary vehemence vis-a-vis the anti-SSM crowd; but I have a strong feeling that the ‘enthusiasm gap’ has now been closed. Moreover, for people who are on the fence about this, I suspect that seeing the vehemence of gays to win this right might push them to a ‘no’ vote when another anti-SSM proposition comes along.Report