Comments on: Hey, gang! Let’s put on a culture war!

By: Matt Weiner

Matt Weiner — Sat, 28 Feb 2004 23:32:42 +0000

should read: bans on gay marriage violate various state constitutions.

By: Matt Weiner

Matt Weiner — Sat, 28 Feb 2004 23:30:58 +0000

Robert—The “hopping mad” comment wasn’t intended to get you to think that such laws would violate the Constitution, just that they would be an outrage—even if the blue-eyed faced no other legal discrimination. Also, I realized that I’ve been confusing the issue. The argument isn’t that gay marriage violates the U.S. constitution—just that it violates various state constitutions. AFAICT, the federal constitutional issues involve full faith and credit. Ralph—It is ahistorical to treat the Democratic Party of 1964 as fully continuous with the Democratic Party of today, without considering regional differences and the defection of the Dixiecrats to the Republicans; also to identify the actions of the party’s national leadership with that of some of its members in 1964. Jason McCullough and raj were right the first time on this. As for the FMA, I’m not sure what you’re saying. Sure, there are Republicans who are progressive on the issue, and good for you. I don’t think I ever said that there weren’t—just that the party as a whole isn’t progressive, and the national leadership isn’t. It looks like the majority of votes against the FMA will be coming from Democrats rather than Republicans (38-5 by the current Oxblog tally). Even if Frist could deliver a united GOP caucus, it would be doomed. So it’s fair to say that Democrats rather than progressive Republicans (worthy as you are) are the decisive force in this case.

By: Ralph E. Luker

Ralph E. Luker — Fri, 27 Feb 2004 21:55:32 +0000

Matt, Last time I checked, there is no “S” designating a political party. No, I do not jest in re the FMA. If Frist cannot deliver a united Republican vote in the Senate, FMA is doa. He can’t even deliver his fellow Tennessee Republican. Your way of reasoning doesn’t allow for the possibility of there being progressive Republicans. You’ll just have to understand if I claim the right to be.

By: Robert Lyman

Robert Lyman — Fri, 27 Feb 2004 16:55:49 +0000

I would be hopping mad and I trust you would too no matter your eye color. Well, of course I’d be hopping mad. That isn’t the same as saying I’d think such laws violated the Constitution (although under current doctrine, such a “facial racial classification”—blue eyes are strongly tied to race—would certainly be struck down). A brief aside on “having no time for originalism”: everyone has time for originalism. The most radical justices—Thurgood Marshall, Breyer, Ginsberg—were and are delighted to deploy originalist arguments when they support ther favored outcome. No matter how much people disdain it, an originalist argument remains the most persuasive for many purposes.

By: Matt Weiner

Matt Weiner — Fri, 27 Feb 2004 15:53:55 +0000

Ralph, the evidence I’d like is a regional breakdown of how Democratic congresspeople voted. The Southern Democrat/other Democrat split is real—I worked for Howard Rosenthal and Keith Poole one summer, adapting for the Mac a program to display their analyses of congressional voting dramatically, and the first thing they told me was that Democrats from southern states should be displayed as S rather than D. As Ted said, the national Democratic leadership—presidents Kennedy and Johnson—got behind civil rights; even in the face of opposition within their party. The national GOP leadership, on the other hand, decided to oppose it—the ink on the Devil’s contract here being Nixon’s 1968 Southern Strategy, deliberately playing to Southern racism. As a result, most of the racist Democrats over time shifted to the GOP. Hence, perhaps Ted should say that this GOP decision is also responsible for the good will the Democratic Party has earned over this issue—but of course it wouldn’t have been possible if Kennedy and Johnson hadn’t decided to get in front of the national party. As for gay rights—surely you’re joking. The Oxblog list is here, and the best indication that the FMA hasn’t a ghost of the chance isn’t the five Republicans against—it’s the thirty-four Democrats against (I think I counted Jeffords but not Bayh). In fact, the thirty-four Democrats would be sufficient to deny it a two-thirds margin. The case is not analogous to black civil rights, because the national Democratic Party wouldn’t have to take on a faction of their own party in order to get behind the issue. The only Democrat who Chafetz has as “for” is Zell Miller, and he’s de facto left the party anyway. The GOP has 28 for and 5 against, not to mention George Bush for. There’s not much question as to which party is backing this amendment.

By: Matt Weiner

Matt Weiner — Fri, 27 Feb 2004 15:27:04 +0000

Robert, I can respect that position. I don’t share your constitutional (ha ha) aversion to lawsuits, I don’t really think that the reasoning on civil-rights lawsuits is weak (I’m not a lawyer, but lots of lawyers I respect seem to disagree with you, and I have no time for originalism or literalism so let’s not go there)—but I can see how, having those opinions which I see as wrong but not unreasonable, you can think that race discrimination justified an exception but anti-gay discrimination didn’t. Now, I think you’re understating the seriousness of anti-gay discrimination. It can still be physically unsafe to be gay—remember Matthew Shepard? And the positive right argument doesn’t carry much weight with me—if the gov’t declared that blue-eyed people could go through commitment ceremonies, etc., but couldn’t have the legal benefits of marriage, I would be hopping mad and I trust you would too no matter your eye color. But given your anti-judicial activist commitments, that shouldn’t carry much weight with you either.

By: Matt Weiner

Matt Weiner — Fri, 27 Feb 2004 00:25:04 +0000

Ralph, I have no time for a substantive response right now, but the RNC chairman/governor of Mississippi is Haley Barbour.

By: Thomas

Thomas — Thu, 26 Feb 2004 17:06:51 +0000

Robert is right to point out that, following Lawrence, there is no liberty interest involved here. 40 years ago there were certain liberties that went along with a marital relationship—including the liberty to have sex. That liberty is now fully protected by the constitution outside of marriage. So the best way to think of marriage, it seems to me, is as a spending program where the government has a particular aim and seeks to further it. The difference in the background legal context is one difference between the current situation and the case of Loving. Another is that the 14th amendment actually bars racial discrimination. rea simply mistakes an analysis of the proposed amendment for the text of the amendment. While it is true that the proposed amendment would prevent an equal protection challenge from being successful in the context of gay marriage, that is something quite different from saying that no equal protection clause challenge could be brought against marriage laws. ted, it is very big of you to allow your political opponents, who never win these social battles in court, to take these social battles to court. it might seem more attractive to these opponents if, well, they actually had a chance to win these cases, but, well, you are all for formal equality—you won’t stop them from bringing them. as for the constitutionality of the DOMA, I’d note a couple of things: The underlying legal context has shifted since the act was passed, and the Supreme Court and the various state courts have shown themselves much more willing to assert rights for gays and lesbians (leaving aside whether the shift is correct as a matter of law). There have always been some doubts about the constitutionality of the DOMA. Those doubts were less important 8 years ago, obviously, when the chance of testing the act may have seemed remote.

By: Robert Lyman

Robert Lyman — Thu, 26 Feb 2004 14:46:23 +0000

Matt, my point about Loving is that it is very weak from a legal perspective--but that it was embedded in a society-wide matrix of injustice so pervasive that it justified the weak legal reasoning used to decide it. The same is true of Brown and, indeed, most of the civil-rights cases. Absent that widespread injustice, resort to the courts seems like a simple end-run around democratic decision-making. Gay marriage differs from many similar suits seeking to invalidate laws in that the legal arguments for it are, shall we say, spectacularly unconvincing, even if the moral and policy case is quite strong. I also think Joe M has pointed out something important here: marriage isn't a "negative" right, in the sense that free speech is. No one is trying to forbid gay people from living together or having "weddings" or whatever. Rather, they are saying that homosexual couples should not get the positive benefits conferred by marriage. I think Joe is right that marriage exists to promote positive social ends, and the government is free to deny it to people who do not advance those ends (say, infertile couples), or indeed to abolish it altogether. I certainly would not support such policies, but I think the advocates of gay marriage have confused the right to do what you want with the "right" to have the government officially recognize what you're doing. I think the Supreme Court would disagree with me, though.

By: Ralph Luker

Ralph Luker — Thu, 26 Feb 2004 05:52:16 +0000

Matt, I’m not sure what evidence you want or who the former RNC chairman/elected governor is that you are talking about. I cited the vote on the Civil Rights Act of 1964. But take the Voting Rights Act of 1965: in the Senate, Republicans voted in favor of it by 30-2; Democrats by only 47-17. In the House of Representatives, 82% of Republicans voted in favor of it, a far higher percentage than Democratic congressman. Beyond that, there is the whole issue of the crmovement’s utter reliance on Eisenhower-appointed federal judges in the South. They were, as a group, far more supportive of the crmovement than were appointees of either Truman or Kennedy. The complicating issue, of course, is Barry Goldwater’s nomination for President in 1964. He was one of only 6 Republicans in the Senate to have voted against the Civil Rights Act of 1964 and, consequently, he managed to win only deep South states, which Republicans had virtually never carried before, and his home state of Arizona. On the primary issue on this thread, take a look at Josh Chafetz’s list of Senators likely to vote for and against the FMA at Oxblog. Sure, Republicans line up in favor of it. But the five Republicans already announced against it are the best evidence that the FMA hasn’t a ghost of a chance of winning a two-thirds vote in the Senate.

By: Matt Weiner

Matt Weiner — Thu, 26 Feb 2004 01:37:14 +0000

Rob, the point about Loving v. Virginia was not that it lends support to gay marriage, it’s that it was a challenge through the courts rather than an attempt to convince the VA state legislature that a white man and a black woman (IIRC) should be allowed to marry. Under your strictures, they would’ve had to wait—how long? Ted has made my point, anyway. I’m not planning to read Stanley Kurtz for four reasons: (1) I don’t have time to dredge through the NRO site. (2) As Ted said, I’ve found these arguments spectacularly unpersuasive, and I’d need to know what’s so great about this (3) Stanley Kurtz is insane (google “Stanley Kurtz” plus “fucking madman” to see what I mean) (4) You also seemed to think iysam’s argument was worth considering. It was bilge. Sorry. Ralph—You haven’t provided a smidgen of evidence to counter Jason McCullough’s point. The national Democratic leadership got behind civil rights in the 60s, and the national Republican leadership got on the wrong side—to the extent that the former head of the RNC just won a governorship after ostentatiously refusing to distance himself from the CCC. So, what are you talking about exactly?

By: Joe M.

Joe M. — Wed, 25 Feb 2004 22:48:00 +0000

Right now, the law offers a bundle of rights to straight people, while refusing to offer them to gay people. It’s a basic question of fairness to me. This is question-begging. Consider a parallel: “Right now, the law offers a bundle of rights to married people, while refusing to offer them to cousins. It’s a basic question of fairness to me. I love my cousin and should be able to sign him up on my employer’s health insurance policy, have him visit me in the hospital, and have the government give me a “Cousinhood” certificate.” Well, the obvious response is, “Fine, you love your cousin. That’s great. But if you want to establish that it is ‘unfair’ that the government doesn’t offer ‘Cousinhood’ certificates, you have to prove that cousinhood and marriage are really the same sort of thing.” Same here. If you want to force the government to issue special certificates to homosexual relationships, you have to begin by proving that homosexual relationships are the same sort of thing. That’s a more difficult question. Yes, a homosexual couple loves each other. But is that the reason the government recognizes marriage? If so, there are a lot of other relationships that involve love of some sort and that the government would have to recognize. Yes, a homosexual couple has sex with each other. But is that the reason government recognizes marriage? If so, why doesn’t the government recognize “Boyfriend/Girlfriend” relationships? “Mistress” relationships? The mere fact that people like having sex is no reason for the government to issue a certificate. So what is it? How are homosexual couples the same as heterosexual couples in any way that demands government recognition? And more fundamentally, why should the government recognize ANY couple-relationships, any more than it officially recognizes “friendship”? I’d like to see some evidence that people are really thinking deeply about these issues, rather than relying on simple-minded and reflexive invocations of “equality” and “discrimination” and “fairness.”

By: Ralph Luker

Ralph Luker — Wed, 25 Feb 2004 18:11:56 +0000

Sorry. I meant to say “… defeating the FMA …”

By: Ralph Luker

Ralph Luker — Wed, 25 Feb 2004 18:06:05 +0000

raj revises history; I remind him of it. If you think that defeating the DMA won’t require the help of progressive Republicans, keep beating the binary drum.

By: TomK

TomK — Wed, 25 Feb 2004 17:24:38 +0000

For a bunch of academics you guys are sure bad about digging up facts on this debate. For questions like "Are children raised by homosexual couples worse off then heterosexual couples?" we can conduct research that looks at the question, and then get an answer. From the 1996 court case on gay marriage in Baehr vs. Miike: As discussed hereinabove, Defendant has failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage. All studies confirm this. Lyman says: "However you want to spin it, a man marrying a woman is different from a man marrying a man. Interracial marriage has an ancient history; gay marriage has NO history" I suggest you check out Same-Sex Unions in Premodern Europe by Yale historian John Boswell.