Monday, July 12, 2010

What about the backlash?

There are a sea of op-ed pieces wondering what will happen with the Prop8 case, which-ever way it goes, and lots of hand-wringing. Lots of people think it will be worse if we win....and at some level, they hope we won't. They reason it will be safer and better if the inevitable march of time brings us equality without the divisive fight.

Consider a recent op-ed in the Washington Post where Jonathan Rauch, a married gay man, hopes that the Prop8 case fails. His reasoning is that a win would be so divisive, that "judicial restraint" really demands a slower course.
A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”....nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.

Over at Prop8 Trial Tracker, they take on Rauch's argument.
The mandatory school segregation that was overturned in Brown and the interracial marriage bans that were overturned in Loving were the product of democratically-elected legislatures, and one could credibly argue that they were the expression of the will of the voters....
In fact, when it comes to LGBT rights, the Supreme Court has already ruled that the Constitution trumps the voters. In 1996, the Supreme Court, led by Anthony Kennedy, handed down the Romer v. Evans decision, overturning a constitutional amendment approved by Colorado voters in 1992 that prevented Colorado from doing anything to protect or advance LGBT rights. Kennedy slammed Amendment 2 as being “unprecedented” and clearly motivated by animus toward LGBT people – one of the main reasons why that very issue has become so important in the Prop 8 trial.

This all goes back to a core principle of the US Constitution. Contrary to what Rauch seems to believe, the Constitution’s authors did not envision a democracy that was all-powerful. The Constitution’s very purpose was to both define as well as limit what government – and therefore, what the voters – could do. It absolutely did not suggest that the “will of the voters” was absolute or even of primary importance. Instead the Constitution produced strict limits on what both the government and the voters could do in the interest of protecting basic rights.

The Keen News Service also contemplates a backlash.
Scott Keeter, director of survey research at the Pew Research Center, said Pew’s previous polling data predicts “backlash.” Those polls, and others, have historically shown LGBT victories in court lead to an increase in public opposition to same-sex marriage. It happened after the U.S. Supreme Court struck down state sodomy laws (in June 2003). It happened after the Massachusetts Supreme Judicial Court ruled gay couples had a constitutional right to marriage equality (in November 2003). And even before Walker issues his decision, said Keeter, polls indicate the public opinion climate “remains chilly” for same-sex marriage.
And, of course, if a victory in the initial case is followed by a reversal either by the 9th circuit or SCOTUS, along with the animus of such a backlash, what then? Jonathan Capehart fears the results:
Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.
Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.
This of course was the logic that led EQCA to challenge prop H8 under the state Constitution, on narrow legal grounds, while ignoring a federal challenge. This is why so many GLBT-rights groups were opposed to AFER pushing the federal case, although once AFER decided to do it, they got behind the effort. Everyone is still terrified that being rejected at the SCOTUS level will lead to a major setback, and we won't live to see the recovery.

The amazing case that Olson and Boies put on was deliberately hidden by the courts, so that the public couldn't be made aware of the evidence of prejudice The people who hate us (and many of them do) continue to cover their faces behind pious platitudes. Yes, I'm looking at you, twice-divorced Governor of Hawai'i.

I'm scared too that whichever way this decision goes, it will be bad for us.

But as Prop8Trial Tracker concludes,
Our movement must be ready for whatever Judge Walker rules, and whatever the Supreme Court ultimately rules. And part of being ready is building the movement and shaping the climate to favor a win. It’s how the Civil Rights Movement overcame the “go slow” advocates of “judicial restraint” in the 1950s and 1960s, and it’s what the LGBT rights movement needs to do here in the 2010s.

And remember the words from Martin Luther King's letter from a Birmingham jail:

My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.....

I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.


Grant said...

It would help if we had a better educated electorate. If more people had a better understanding of how this stuff works...

Prop 8's Pugno couldn't make the ludicrous argument that what's on trial is the people's right to vote without being laughed at.

People wouldn't be so concerned with the "activism" of "unelected" judges.

People wouldn't speak of the "imposition" of the rights of one on another, as if liberty and justice for all were a burden for some.


It's times like these that I wonder in the back of my mind if some test for voting wouldn't be that bad an idea...kidding of course on that part at least. :-)

JCF said...

Even if SCOTUS decides the wrong (H8-ful) way, I think the longest such a decision could last, is HALF the time of Bowers v. Hardwick (1986-2003, if that's any comfort).

MLKJr: "The arc is long, but the universe bends toward justice." In the case of LGBT equality, King's aphorism is demonstrable. IT, believe it!

[That said, I'm glad Prop h8 repeal isn't on the ballot this year. 2012 is another story!]