aTypical Joe: a gay New Yorker living in the rural South
Sunday, September 11, 2005
Same sex marriage and abortion (again)
I pretty much accept Cass Sunstein’s position that Roe v Wade was “a big blunder from the constitutional standpoint.” And, thanks in large part to Nathan Newman, I’ve come to see the value of affecting change through the legislature and question whether we should count so heavily, as liberals sometimes do, on the courts to protect minority rights. But this week’s news from California demonstrates that even a legislative victory is not accepted; instead they call for referenda.
So we’ve got to work them all.
Conservatives apparently appreciate the role that Roe played in their political rise to power. Here’s Sunstein on the consequences of the Roe victory:
The court’s decision probably helped defeat the Equal Rights Amendment. It was a big blow to the feminist movement in the United States partly because it demobilized women and mobilized--in fact, helped create the Moral Majority. It polarized the country and gave tremendous energy to those who think abortion is a form of murder while eliminating the energy, for a time at least, for those who believe that the right to choose is a part of the--of what’s necessary to ensure equality on the basis of sex in the United States.
So might liberal defeats in the courts turn this around?
I’ve noted before that Americans wanting to keep abortion legal and restricted is very much like the gay marriage dynamic: The American public doesn’t want marriage but they do want to afford legal rights to same sex couples that are virtually equivalent to marriage.
The American public polls against same sex marriage, but toss in civil unions and the majority’s in favor. The majority of the American public favors legal recognition of same sex relationships by a similar majority to that which favors Roe.
It follows that if the court goes too far with abortion restrictions, and continues to deny same sex couples legal recognition of their relationships, it will build for us a coalition of liberals and moderates that had little reason to galvanize before.
Whether or not it’s wise to take a case to the Supreme Court seems to me beside the point; it’s going to happen. All those cases already percolating up, courts time and again holding that it’s legally wrong, a Supreme Court case is inevitable.
The court’s composition doesn’t hold a lot of promise for an outcome I’ll like. Still, I choose to look forward to an angry coalition response, and a fair-minded American public that knows and likes gay couples, as the bright side.
Recently I recalled quoting favorably a 1991 analysis of all public opinion polls having to do with national policy preferences. It found that the public tends to make appropriate, sensible, rational, coherent and consistent choices.
I read that to mean that the broad American public will ultimately, sooner rather than later, make the right choice for my partner and me, and all those others like us.
A friend of Doug’s left in 2 cars with 3 kids, 2 cats and 3 dogs. I’ve been reading of the fate of other’s pets for a while; I find it unimaginable to be forced to leave without my dogs, who were my companions throughout 9/11 (Doug was away).
In one example reported last week by The Associated Press, a police officer took a dog from one little boy waiting to get on a bus in New Orleans. “Snowball! Snowball!” the boy cried until he vomited. The policeman told a reporter he didn’t know what would happen to the dog.
At the hospital, a doctor euthanized some animals at the request of their owners, who feared they would be abandoned and starve to death. He set up a small gas chamber out of a plastic-wrapped dog kennel.
Louisiana State Treasurer John Kennedy, who was helping with relief efforts Saturday, said some evacuees refused to leave without their pets.
“One woman told me ‘I’ve lost my house, my job, my car and I am not turning my dog loose to starve,’” Kennedy said.
Kennedy said he persuaded refugees to get on the bus by telling them he would have the animals taken to an exhibition center.
The Society for the Prevention of Cruelty to Animals picked up two cats and 15 dogs, including one Kennedy found tied up beneath the overpass next to an unopened can of dog food with a sign that read “Please take care of my dog, his name is Chucky.”
A woman we know here who runs the local shelter went to New Orleans to help save the animals. Her husband died while she was away.
Cass Sunstein says that for the Supreme Court to take a big stand on discrimination on the basis of sexual orientation would polarize the country.
I think we’re already polarized.
I want a case to come before the Supreme Court.
But the win I want is a Sunsteinian incremental one, and precisely the one the Federal Marriage Amendment is designed to circumvent: that each state must recognize a legal marriage performed in any other state.
I’d be happy with that. It doesn’t force any state to perform gay marriages, only to recognize and enforce this legal contract like any other. (Massachusetts doesn’t have a residency requirement for marriage, but I don’t much care if they pass one.)
I’d be happy too, to have the Federal Marriage Amendment debated in every state legislature throughout the land. The Massachusetts experience suggests that 38 state legislatures won’t ratify it. Amendment proponents know that, so the amendment sits dead in the water. It’s a rhetorical bat to fire up the base; nothing more.
But, of course, if a case does come before the Supreme Court, my side’s likely to lose. For that contingency I’m working on another post…
This in the state where people find Georgia Equality’s benign “We Are Your Neighbors” billboard campaign “disgusting.”
Sunstein on Roe, Brown and same sex marriage
Cass Sunstein was a guest on Fresh Air last week. I am a Sunstein fan, so listened with interest. Here he comments on Roe v Wade as constitutional law:
Roe against Wade was a big blunder from the constitutional standpoint. The reason was that the court took some pretty small precedents and blew them up to create a very general right to choose abortion. Now many people like that as a matter of policy, and maybe it’s right as a matter of policy, but the court used the Constitution much too expansively, much too quickly, and cast contempt on millions of Americans who believe in good faith that abortion is a murder of a human being. So this was really an abuse of the court’s constitutional authority.
I put the follow up, Sunstein’s comments on what the courts should have done, in the extended entry. For here, now, then how about Brown v Board of Ed?
Now Brown is an interesting contrast. It is true that Brown, getting rid of American-style apartheid, was a very bold and big deal, but Brown was anything--was not anything like Roe. Brown was the result of a slow and long sequence of decisions. By the time of 1954, the ground was carefully laid for getting rid of apartheid in the United States. The court had dealt time and again with so-called separate but equal schools, and said time and again, `This separate is not equal. That separate is not equal.’ By the time of Brown, separate but equal was all but dead. The court could have built up a more general privacy right, maybe, but going slowly. If it was going to do that, that would have been the way to do it.
Ok, so how about same sex marriage?
If the court took a big stand on discrimination on the basis of sexual orientation now, it might polarize the country terribly and cause all sorts of bad consequences.
Most of my friends don’t want marriage brought before the courts, more out of concern over the compostition of the court than over polarization, and marriage rights organizations are conflicted. But I’d turn Sunstein’s argument on its head, and say go for it.