Highly Refined Debate

Via The Superficial, "Prop 8 - The Musical" starring Jack Black as Jesus. There's more star power than humor, but still worth a watch for a few chuckles. 

More Thoughts on Gay Marriage (3,000th Post!)

Gay marriage may be having a rough go of it lately, but Glenn Greenwald proposes a relatively simple and politically viable change that Congressional Democrats could make in short order that would undo some of the injustice heaped upon married gays; repeal section 3 of the Defense of Marriage Act:

...it is Section 3 which is especially odious and damaging. Opposite-sex couples receive a whole slew of vital marriage-based benefits and entitlements from the Federal Government which DOMA expressly denies to same-sex couples. As but one particularly glaring example, if an American citizen marries a foreign national of the opposite sex (an increasingly common occurrence), then, under U.S. immigration law, the foreign spouse is entitled, more or less automatically, to receive a Green Card and, if desired, U.S. citizenship, so that American citizens can live in the U.S. together with their spouse.

But if an American citizen marries a foreign national of the same sex, then DOMA bars the INS from recognizing the marriage as a basis for granting immigration rights. As a result of DOMA, American citizens are put in the hideous predicament of having to choose either to (a) live apart from their spouse or (b) live outside their own country. The U.S. now stands virtually alone in the Western World in imposing such a cruel dilemma on its citizens (worse still, many U.S. citizens have same-sex spouses from countries where the U.S. citizen cannot live, due to lack of resources or opportunities or because that country also refuses to grant immigration rights to same-sex couples; in those cases, DOMA means that Americans are forced, with no choice, to live apart -- oceans apart -- from their spouse).

Another example of a privilege that same-sex married couples do not enjoy under federal law is the estate tax marital deduction (as well as other federal tax benefits) but there countless federal privileges that opposite-sex married couples enjoy that same-sex married couples do not. All of this could be undone by a wholesale repeal of DOMA, or at least section 3 (Greenwald argues that repeal of section 2-which permits states to not recognize same-sex marriages that are legal in other states- is unnecessary.) Greenwald argues that this change is politically viable, and I agree (though that doens't mean that it won't make the anti-gay marriage forces crazy.) I also think it's a novel way for Obama to signal his support for gay marriage, both morally and practically. It is my sincerest hope that someone who will shortly be in the Obama administration is reading Greenwald and thinking the same thing.

Nat-Wu here. I'd just like to say that at this time, I can't think of any topic more appropriate for our 3,000th post than the biggest civil rights issue of the day, namely the rights of all Americans to live with and love who they want to. Someday the callous laws passed depriving them of their rights will be seen as just silly. TWM hopes to help bring that around.

Suing For the Right to Marry Is Not Just Strategy

Yglesias echoes my thoughts on the backlash meme:

...granting the backlash hypothetically, I never quite understand what the upshot of this sort of analysis is. Say you’re living your life with your partner and you want to get married. But then the local legal authorities tell you that you can’t get married. That seems like unfair discrimination to you, so you inquire with an attorney. The attorney says, yes, your state has never allowed a man to be legally wed to another man, but he agrees with you that it’s unfair. And not just unfair, illegal, a violation of your state constitution’s guarantees of equal rights. So you sue! Then the case comes before a judge and the judge thinks, yeah, the local authorities’ action is a violation of the state constitution’s guarantee of equal rights. Is the judge supposed to rule against you even though he thinks your case has merits, offering as his reasoning “it would be counterproductive to the long-term political strategy of the gay rights movement for me to offer the ruling I believe to be correct”? That doesn’t sound right.

I already said this, but it bears repeating:

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.

You firmly believe that your rights are being violated and that suing in court would give you justice. Now despite this, you are expected to not seek redress in the courts because there is no "public consensus" about your rights and a "strategy" of litigation will provoke a public backlash. How is this sensical, or just, or fair?

Also, I didn't address McArdle's claim that gay marriage litigation doesn't analogize to the litigation that aimed to undo the legal regime of states that disenfranchised blacks, because whereas gays are not being denied the right to participate in democracy, blacks were by having their right to vote stripped away from them. Now it's true that if you're not allowed to vote, the only way you're likely to undo that is to turn to the courts. But even had blacks had the ability to exercise fully the right to vote and all blacks in the south voted in every election, how would they have turned back decades of Jim Crow laws that were acceptable to the racist majority whites? McArdle's reference is more apt than she realizes, though not in the way she intended. Blacks turned to the courts to gain recognition for rights that they plainly were entitled to, but that a majority of voters would not give them. How is this not similar to what gay marriage advocates are doing now when they turn to the courts? How is the civil rights movement not proof that this strategy can succeed? 

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.

Proposition Update

My apologies for not keeping you updated last night on the various propositions of note; I simply had my hands full keeping up with various House and Senate races, and races here in Texas. That being said, here's where we stand this morning:

California:

Proposition 8 (defining marriage as between a man and a woman): Well, despite declarations that the proposition was both failing and passing, it remains too close to call this morning. 95% of precincts are reporting and "yes" leads by four percent but there's reluctance to call it until almost all votes are counted.

Proposition 2 (requires improvements in the treatment of factory farmed animals): this measure passed easily, by a whopping 27%.

Colorado:

Amendment 48: a measure that would defined "personhood" from the moment of conception was utterly destroyed, losing by 50%.

South Dakota:

Initiated Measure 11: a less restrictive version of the abortion ban that failed in 2006, this measure also goes down in flames.

Arkansas:

Proposed Initiative 1: a measure to ban unmarried couples (gays, that is) from adopting or serving as foster parents passes. Arkansas children suffer.

Arizona:

Proposition 102: bans gay marriage; passed.

Florida:

Marriage Protection Amendment: even though gay marriage is already illegal in Florida, this measure changes the constitution just to be on the safe side (you can never be too careful with those gays, I guess.) It passed with 62% of the vote.

So the Christian moralists gain no traction on the issue of abortion, but apparently appeals to discrimination against gays still work. I sincerely hope change in that regard is not too far down the road.

California's Proposition 8 Failing/Arkansas Measure Succeeding

I don't have a thread for this, but know that exit polls are showing that the anti-gay marriage initiative in California is faltering(via Andrew Sullivan.) Unfortunately, it appears that the ballot initiative in Arkansas that would ban unmarried couples (read, gay couples) from adopting or serving as foster parents has passed.

UPDATE: I spoke too soon. It looks like Proposition 8 is likely to pass, thus amending the California constitution to limit marriage to heterosexuals.

UPDATE II: See our newest post for a more comprehensive treatment of various state ballot initiatives.

No on 8

Itzhak Perleman, the greatest violinist of our age, says vote no on California's Proposition 8, which would amend the state constitution to ban gay marriage. One of his daughters is gay, and apparently he would like her to be treated as fully human, like the rest of us. I agree. If you live in California and you don't like Christian moralists telling you who people can and cannot marry, then you owe to all of us to get out and vote this ridiculous proposition down.