Tag Archives: Gay Marriage

Due Deference

Over at the League, Mark Thompson (an actual lawyer!) and I published a pretty interesting dialogue on judicial legitimacy, cultural change, and originalism in the wake of the Iowa gay marriage ruling:

The courts have a certain amount of judicial capital – i.e. public trust in the courts as an institution. This gives them the credibility to enforce unpopular laws (releasing guilty criminals on technicalities, for example). Court capital, however, is extremely sensitive to public perception, and if it is completely depleted, popularly elected branches of government will take advantage of this erosion of public trust by compromising judicial independence – through court-stripping, enacting judicial term limits, slashing the courts’ budget etc. etc.- thereby undermining the judiciary’s ability to enforce constitutional law.

As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.

Check out the whole thing here.


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Neutral Zones

Here’s an intemperate comment from Peter Hitchens:

“If I never again had to read or write a word about homosexuals, I would be very happy. I really don’t want to know what other people do in their bedrooms. But these days they really, really want us all to know. And, more important, they insist that we approve. No longer are we allowed to keep our thoughts to ourselves, while being polite and kind . . .”

Which brings to mind Chris Dierkes’  interesting post on religion and metaphysical neutrality. To Hitchens, letting gays be and never speaking another word on the matter is a perfectly neutral position. To Andrew Sullivan, real neutrality demands gay couples’ inclusion in heterosexual institutions (ie marriage). Who’s right? I’m not really sure, but I think this spat says something about the elusiveness of a truly neutral political arrangement. People who don’t share Andrew Sullivan’s assumptions about governance aren’t going to be convinced to support gay marriage because it’s “fair.” They’re going to be convinced when you make a case for gay marriage that emphasizes positive social goods.

I think this is why conservative critics of gay marriage are more concerned with social breakdown than social equality. If you’re convinced that the other side’s definition of fairness is not – despite all their protestations to the contrary – value-neutral, procedural appeals are always going to fall upon deaf ears.

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Shorter Al Sharpton

My ethical framework is the only legitimate arbiter of church-based political activism.

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Speaking of Andrew Sullivan, his latest on gay marriage is quite good:

I have nothing against the voluntary and peaceful activities of any religious group, and regard these organizations as some of the greatest strengths of America. The idea that gay people somehow want to persecute these churches, that we’re out to get you, and hurt you and punish you is preposterous. The notion that there are rampaging mobs of gay people beating up on Christians is also unhinged. To take one flash-point between a radical Dominionist group deliberately trying to rub salt in the wounds of Castro Street bar patrons after closing hours – in which no one was hurt – as the harbinger of some kind of mass gay pogrom against Christians is daffy. To equate a few drunks gays with Bull Connor is deranged and offensive. There are elements on both sides who do not represent the core. That core can coexist with mutual respect in the context of legal and civil equality.

It occurs to me that this sort of arrangement would require a great deal of restraint from both sides. No more frivolous lawsuits forcing eHarmony to open its doors to gay users. No more purportedly conservative bills that foist a one-size-fits-all definition of matrimony on the states. Can our political consensus embrace an ethic of restraint? Some hardened traditionalists have resigned themselves to the prospect of gay marriage – what they’re really worried about is preserving a sphere of autonomy to protect their deeply-held religious beliefs. I don’t think this is at all unreasonable, but it requires us to allow the other side a little breathing room.

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Apocalypse Now

Wendy Sullivan thinks society’s impending collapse is self-evident. This isn’t an uncommon sentiment among social conservatives, but I think it’s worth noting that things are never quite as bad as they seem. Here, for example, is a good summary of a Contentions article from a few years back on so-called “leading social indicators” – crime, divorce, and abortion rates, among others – and their prognosis for American society. Money quote:

But a strange thing has happened. Just when it seemed as if the storm clouds were about to burst, they began to part. And now, a decade and a half after these dire warnings, improvements are visible in the vast majority of social indicators; in some areas, like crime and welfare, the progress has the dimensions of a sea change.

According to the National Crime Victimisation Survey (NCVS), the rates of both violent and property crime fell sharply between 1993 and 2005, reaching their lowest levels since 1973 (the first year for which data is available). Teenage drug use, which moved relentlessly upward throughout the 1990s, declined thereafter by an impressive 23 per cent. In welfare, since the high-water mark of 1994, the national caseload has declined by over 60 per cent. Abortion, too, is down. After reaching a high of over 1.6m in 1990, the number of abortions each year in the US has dropped to fewer than 1.3m, a level not seen since the supreme court’s 1973 decision to legalise the practice. The divorce rate, meanwhile, is at its lowest level since 1970. The high school dropout rate, under 10 per cent, is at a 30-year low, and the mean SAT score was 8 points higher in 2005 than in 1993.

The authors are also unable to identify a causal link between the erosion of traditional two-parent families and broader social problems:

Murray may well have been correct about the importance of illegitimacy. But he—and not he alone—seems to have been incorrect that it would drive everything else. Over the past 15 years, on balance, the American family has indeed grown weaker—but almost every other social indicator has improved. Murray’s dictum could still be borne out; in time, the explosion of illegitimacy might undo the signs of healthy cultural revival we have charted. Or it may be that the broad improvement in cultural attitudes will in time cast its benefits upon the family as well, helping to curb the seemingly inexorable growth of illegitimacy.

This gets at something I tried to grapple with during the same-sex marriage debate a few days back. Due deference to tradition and culture is one thing, but society is both incredibly fluid and surprisingly resilient. Instead of fighting organic social change, conservatives should find ways to accomodate themselves to new circumstances. For some, this means embracing a “Benedict Option” and withdrawing from society altogether, but most should be able to adopt a workable modus vivendi within an increasingly diverse, tolerant community.

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Thoughts on Gay Marriage

I briefly skimmed the Ladyblog’s debate over gay marriage, and I wasn’t impressed with the “con” side of the argument. Here’s Mollie Hemingway:

What happened with the California Supreme Court ruling this year was a redefinition of marriage as an institution. Government, it is worth remembering, didn’t create marriage. Marriage is a universal public institution that has been defined for thousands of years as a sexual union between a husband and wife. It’s based around the ideas that babies are created via intercourse, that procreation is necessary for the survival of society and that babies need fathers as well as mothers.

Marriage — for whatever reason or variety of reasons — has been the means throughout the world for insuring that fathers stick around to raise their children and support mothers while they are growing their babies — both in utero and through childhood.

Variations from this ideal of marriage with children happen but they are just that — variations. Previous revisions to the institution of marriage have led to drastic increases in the rate of divorce, illegitimacy, and cohabitation. Legal definitions, it seems, matter.

Marriage’s institutional history is a bit more fluid than conservatives make it out to be, but I understand her central objection. Traditionally, marriage has been a social mechanism for encouraging procreation, good child-rearing, and familial stability. However – and this is an insight that originates with Rod Dreher, an opponent of same-sex marriage – the meaning of the institution has changed dramatically in recent decades. Romance, likability, and personal affinity are replacing (or have already replaced) child-care, continuity, and procreation as the biggest reasons people get married. If personal affection is now the institution’s central rationale, there’s no reason not to extend marriage benefits to committed gay couples.

As a matter of democratic legitimacy, I think it’s a bad idea for the courts to create marriage rights for gay couples out of thin air. I also think that the gay rights movement is better off working through ballot initiatives and the legislature rather than the courts (if you’re interested in the legal theory behind this approach, check out “The Hollow Hope: Can Courts Bring About Social Change?”). But these are pragmatic suggestions for a movement whose time has come. The massive pro-gay rights backlash brewing in California is a sign of the times. When gay marriage finally becomes a “fact on the ground,” it will be as a result of an organic cultural shift within American society. If you think this change is a bad thing, you’ll need to do a lot more than campaign against extending marital benefits to gay couples. Banning romance novels and re-popularizing arranged marriages are probably good places to start . . .

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