Year: 2013

Steady As She Goes

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Nate Silver’s tea-leaf reading reaches a solid conclusion:

One no longer needs to make optimistic assumptions to conclude that same-sex marriage supporters will probably soon constitute a national majority. Instead, it’s the steadiness of the trend that makes same-sex marriage virtually unique among all major public policy issues, and which might give its supporters more confidence that the numbers will continue to break their way regardless of what the Supreme Court decides.

The Argument For Minimalism

Here’s a succinct and simple case from Cass Sunstein for SCOTUS going small:

In its 1971 decision in Reed v. Reed — its first serious effort to engage the problem of sex discrimination — the court took the path of minimalism. Striking down an odd Iowa law that gave a preference to men over women as administrators of estates, the court declined to issue a broad pronouncement that would immediately threaten all discrimination on the basis of sex.

Instead it began a long series of case-by-case rulings — accompanying, but not pre-empting, democratic judgments — that ultimately produced strong safeguards against such discrimination.

With respect to same-sex marriage, the court might be able to adopt a similar approach. For example, the Justice Department has sketched some ways for the court to rule relatively narrowly, striking down the laws in question while avoiding the broadest pronouncement about marriage equality.

Moderation Triumphs

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If Tom Goldstein is correct, then I’m celebrating:

Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

In other words:

(Photo: Jewel Samad/AFP/Getty.)

Not Just Civil Rights; Civil Responsibilities

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More than a decade or so ago, in the Weekly Standard, David Frum warned that if we gay activists kept up the campaign for marriage equality, he would favor putting more police power behind enforcing sodomy laws. Today, he stood in front of the Supreme Court and gave a speech. Money quote:

Marriage is a source of great joy. But – and I speak as one who’ll celebrate a 25th anniversary this summer – it’s also a solemn undertaking: an undertaking to care for another person, to nurse that person when ill, to sustain her or him in time of trouble, to raise children together, to provide for those children, to mourn when it comes time to mourn.

No agency of government can ever begin to do for anyone what loving spouses do for each other. The stronger our families are, of every kind of family, the less government we’ll need.

Today your families gather before this house of the law to claim the right to live as others do, without shame and without fear. The mind of a nation is changing. It’s an awesome thing to see – and to be part of. Your words – your actions -and your example have power. And will overcome.

And with David’s help – along with increasing numbers of principled conservatives – we will. And in many ways already have.

SCOTUS Tweet Reax

This means that California will now join the other states in granting marriage equality: a vast step forward.

Quote For The Day III

“The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs,” – Hannah Arendt, Dissent, 1959.

The WSJ On Marriage

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If you watched Charlie Rose last night, you’ll know that my position on the cases in front of the court today and tomorrow is not a hope for a sudden 50-state Loving vs Virginia-style resolution. If I had my druthers, the perfect outcome would be dismissing the challenge to the ruling striking down Prop 8 on “standing” grounds, thereby allowing civil marriages to continue in California, striking down that part of DOMA which forbids the federal government from recognizing a state’s valid legal marriage licenses, on federalism grounds, and on heightened scrutiny grounds, striking down the “separate-but-equal” segregation of civil unions which are substantively identical to civil marriage.

The end result would be 17 states with marriage equality recognized by the feds, and the debate could then continue democratically as it should state by state. This is close to where the Journal comes out, with some critical differences. Here are my dissents. First off, the word “liberal,” as in:

Liberals do not merely contend that laws based on sexual orientation lack any “rational basis.” They also claim the only motivation for such laws is prejudice against gays. They therefore want the Court to designate homosexuals as a legally protected group like minorities or women and apply to Proposition 8 the highest levels of constitutional protection, called strict or heightened scrutiny.

Is Ted Olson now a liberal? Is Ken Mehlman a liberal? The argument that government discrimination against a tiny, long-persecuted minority could be viewed as worthy of heightened scrutiny is not restricted to liberals. And marriage equality was kick-started in part by gay conservatives. Just as some leftists have tried to air-brush the role of gay conservatives out of this movement (check out the far left smear artist here) so now some straight conservatives are too. They are both lying – for purposes of propaganda, left and right.

Second, since when do conservatives believe that the federal government should dictate to states what marriages should be?

The answer to that, of course, is 1996, when conservatives abandoned any pretense of being federalist and the Christianist right, aided and abetted by the most substantively anti-gay president in history, Bill Clinton, passed DOMA. Here’s the WSJ’s argument for the federal government stomping on states’ rights in 1996:

Doma doesn’t usurp state prerogatives or outlaw experimentation, or else those nine states could not have legalized gay marriage since Doma passed. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.

Some scholars of federalism claim Doma was meant to express a policy judgment about gay marriage that is not supported by the federal government’s enumerated powers. But Doma embodies federalism at its best by keeping the channels of democracy open. Section 2 says one state does not have to accept another state’s definition under the Constitution’s full faith and credit clause, preserving each sovereign’s right to decide for itself.

How many times does one have to repeat this before it sinks in? The full faith and credit clause does not now and never has required one state to recognize another state’s marriages. Even today, there are very different standards – age, consanguinity, etc – that make marriages different in various states. For centuries, the federal government tolerated diversity in the states with respect to inter-racial marriage, and simply respected those inter-racial marriages that were legal in their respective states. That is federalism. The breach was not Hawaii’s aborted attempt to provide gay couples with equal protection – but DOMA itself, which says the federal government should recognize only those state marriages it approves of. This was the unprecedented move – the anti-conservative move, the first ever attempt of the federal Congress to distinguish between various states’ marriage licenses.

Overturning DOMA is to overturn radicalism not conservatism, and restore the traditional balance between the federal government and the states on civil marriage. The feds have no role in this apart from recognizing whatever a state wants to do. Period. DOMA was a mixture of panic, misinformation, political opportunism (Rove, Bush, Morris and Clinton) and yet another betrayal of conservatism by the fundamentalist wing of the GOP. Repealing it is the conservative thing to do.

(Photo: Supporters of same-sex marriage gather in front of the US Supreme Court on March 26, 2013. By Jewel Samad/AFP/Getty Images. )

The Benefits Of Marriage

Ezra rounds-up various charts from a report on the consequences of delayed marriage. Among them:

Union Dissolution Chart

Frum spells out other advantages of marriage:

Children born to single parents face much longer odds in life than children born to married parents. (A new study by ThirdWay.org suggests that the harms are especially intense for boys, less so for girls.) “Odds” are not rules, of course. There are always exceptions.

On average, however, children born to married mothers and fathers are more likely to finish college, more likely to avoid prison and more likely to form marriages themselves than children born to single parents. And precisely because the harms of single parenthood tend to be self-replicating, the breakdown of marriage threatens to harden into a caste divide, with some families launched into cycles of downward mobility because of the unstable relationships of parents or grandparents or great-grandparents.

Which helps us see the other group of people directly affected by what is being argued in the Supreme Court as I blog this: children. Do not the children of gay couples deserve not to be stigmatized by having their parents deemed inferior to their heterosexual peers under the law? And does not civil marriage itself operate as a core mechanism for the stability and longevity of relationships? Why would we not all want to support gay couples as well as straight ones? Marriage is always work. But it matters.

Quote For The Day II

“Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty,” – Martin Luther King Jr, 50 years and ten days ago.