Captain’s Quarters has a brilliant piece on the Massachusetts Supreme Court ruling that the state must accept full marriage rights for homosexuals. This decision only applies to the state of Massachusetts, and the Defense of Marriage act ensures that it cannot be used as precedent for other states, but it’s still a worrying decision.
I’m generally okay with the idea of civil unions for homosexuals. I think the way in which the law generally discriminates against homosexuals in issues like insurance and inheretance law is not a legally acceptable bias. I believe that people should have the option to insure and give inheretance to anyone they want, be it a family member or a partner. I do have religious and moral reservations about homosexuality, but those are my own. I do not believe that there is a legal foundation for discrimination against gays and lesbians.
That being said, this decision is still a mistake. Gay rights will never be accepted by judicial fiat. It is not the position of the judiciary to grant new rights, it is the position of the judiciary to interpret the law within the framework of existing rights. The granting of new rights is a function of the political process. This is an intentional part of the design of the Constitution. The reason why it is so difficult to pass a constitutional amendment is so that issues that will effect all Americans must have some kind of consensus behind them before they become the binding law of the land.
Creating rights through the judicial process sabotages this deliberate system. It ensures that the few can radically alter the lives of the many, and flies in the face of democratic principles. A decision fiat attempts to alter the political landscape without a consensus, which is invariably a destructive process. The 20 year battle over abortion is largely due to the fact that the Supreme Court created a new right out of whole cloth rather than letting the issue be settled on a state-by-state basis.
It’s in no one’s interest to have such a situation develop with gay marriage. If gay marriage is forced down the people’s throats by a judge, it is quite possible that the result will be a Constitutional ban on gay marriage. If that were to happen, the gains made by gay rights groups so far would be erased.
The essence of conservatism is the philosophy that gradual and measured change is infinitely better and stronger than sudden revolution. If the Massachusetts court thinks that the issue of gay rights can be solved from the judicial bench rather than the political process, they are tragically mistaken. This should be a choice of the people, and it is better to try and change popular attitudes to alter the law than to alter the law to change popular attitudes.
Creating rights through the judicial process sabotages this deliberate system.
It worked just fine for interracial marriage. Sometimes you can’t just wait for the American people to come to the right decision – you have to cram it down their throats while you wait for the Old Believers to die. In fact that’s pretty much been the history of civil rights in a lot of parts of this country.
The fact is, while 52% or so of Americans don’t support gay marriage, over 60% or so of Americans support a proposition that grants exactly the same rights if you don’t tell them it’sabout marriage. The American people don’t want to deny gay people rights. They want them to have the same rights as married people – they’re just spooked by the term “gay marriage” for some reason.
In 20-30 years, the majority of people who oppose gay marriage will be dead. But why should gay people have to wait so long?
Also I don’t think the Defense of Marriage Act will hold. It would seem to me that the “full faith and credit” clause of the Constitution renders it unenforcable.
The problem is that either gays and lesbians can wait 20-30 years or they can have 20-30 years of bitter legal and legislative battles over gay rights in which they’re more likely to see significant setbacks than significant gains.
I’m sympathetic with the idea that it’s unfair for gays to have to wait for rights that they should not be legally denied. However, if gays are to see widespread acceptance they cannot be seen as forcing their agenda on a hostile populace.
Blacks gained full civil rights only at a time when the overwhelming support of the people were behind them – and only because they had leaders who preached a message that wasn’t aimed only at blacks, but at all Americans. MLK’s “I Have A Dream” speech isn’t a speech that appeals to the interests of blacks, but to basic human themes. So far gays have created an image that they are essentially a radical subculture with a hedonist view of life. As Andrew Sullivan has argued, this is not the path to societal acceptance.
It’s difficult to argue that someone should be forced to wait for societal change in order to have their rights accepted. However, if gays want to avoid being marginalized and radicalized, they have to be willing to see incremental gains first.
It’s difficult to argue that someone should be forced to wait for societal change in order to have their rights accepted. However, if gays want to avoid being marginalized and radicalized, they have to be willing to see incremental gains first.
I don’t understand how you think that change is going to occur without gay people fighting for their rights. What, they’re just supposed to sit ont heir hands and wait for the public to come around?
No, they should be seeking to get the kind of incremental gains where they can – such as fighting for more open inherentance rules, adoption rules, and the like rather than forcing all the issues at once.
No, they should be seeking to get the kind of incremental gains where they can – such as fighting for more open inherentance rules, adoption rules, and the like rather than forcing all the issues at once.
Your argument hinges on blaming the victim. You’re trying to blame gays for the backlash that conservative Christians are going to level at them.
I don’t see a logical reason why gay people aren’t entitled to use whatever legal means are at their disposal to gain the civil rights that are theirs. If there’s a backlash, lay the blame where it belongs – conservative Christians who think they have a God-given right to tell other people how to live their lives.
“However, if gays are to see widespread acceptance they cannot be seen as forcing their agenda on a hostile populace.”
Yeah, silly gays, wanting to serve equally in the military, or avoid workplace discrimination, or have the medical rights granted to the majority, not wanting to sit in the back of the bus, or…
…no, wait, my bad. I confused “gay” with “African-American” for a second there. It’s tough to sort out the victims of discrimination–they all look alike to my straight white ass.
And I don’t think DOMA will survive the courts, not because the courts want to impose their will on the people, but because it flagrantly disavows the Constitutional rights of the people as enshrined in the “full faith and credit” clause. They want to amend the Constitution, they should amend the Constitution, seeing as how anything less is, um…you know, unconstitutional.