Wednesday, November 05, 2008

The "Judicial Strategy"

Via Andrew Sullivan, Megan McArdle on legislating through the courts:

In general, courts are the wrong place to press these sorts of claims. The courts were appropriate for civil rights because blacks were literally denied the right to participate in the legislative democratic process. And on a practical level, they worked because a majority of people in the country were more than happy to force civil rights on an unhappy white southern minority. Unfortunately, too many groups have decided that the success of civil rights can be widely applied to circumvent the electorate on issues where there is no public consensus. Now widespread gay marriage seems quite a bit less likely for the near term than it would have been had we attacked the issue legislatively.

I'm truly tired of this sort of nonsense, peddled especially by the likes of Benjamin Wittes (regarding abortion in his case) and liberals and libertarians of his ilk. First of all, McArdle makes it sound as if gay marriage is only legitimate where it has been publicly mandated. This simply isn't true; gay marriage was established in Massachusetts in 2004, and remains in effect today despite the fact that the State legislature has taken no action to give legal sanction to it. If the electorate was in fact "subverted", then they seem to have acquiesced to it. Nonetheless, the Massachusetts state Supreme Court was ahead of the curve in their ruling; does anyone think that but for that ruling, gay marriage would somehow have become legal by legislative action in the intervening period between 2004 and now?

Second, the progress of gay marriage is not solely decided by those who allegedly make a cynical and completely selfish decision to "circumvent the electorate" by obtaining before courts what they cannot obtain in state legislatures. Believe it or not, many of us who support gay marriage genuinely believe that bans against gay marriage are in violation of protections afforded by both numerous state constitutions and the federal constitution. Being as the rights of those who are barred from legal protections of marriage are being violated by unconstitutional laws, then it only makes sense to go to court to have those rights vindicated. Were the state of Texas to suddenly pass a measure that requires registered Native Americans to take a loyalty oath before voting, would I consider as my only recourse legislative efforts to repeal that law, even if it was broadly supported by the public? Of course not. The immediate response would be to file suit in state or federal court, and rightly so.

Now, that is not to say there isn't an argument among gay rights activists as to whether the legitimacy of gay marriage should be pursued in the courts, or in state legislatures. But this is in response to the fact that the citizens of many states largely sanction discriminatory behavior. Were it possible to have gay marriage recognized by law or public initiative, surely that is the path gay rights activists would take. It is not in the vast majority of states, as anti-gay discrimination is the last remaining acceptable bigotry. There are some gay rights activists who fear the public backlash that accompanies judicial decisions, and there are some who think these judicial decision lead the way for greater acceptance (I happen to think the latter are right.) But this is an argument over the practicality of pursuing gay marriage in the legislature; it has never and never will be inappropriate to have civil rights vindicated by the courts. I honestly don't know why this distinction is so difficult to grasp, or how anyone can bring themselves to blithely argue that it is a mistake to have rights vindicated in courts whose purpose is to do just that.

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