The Constitution and equality

Lyle Denniston considers the unusual situation that brought equality to New Jersey and cautions,

The political reality at the moment – and one must stress that the reality might well change – is that full marriage equality will not come into being until the national Constitution recognizes it – either by court interpretation, or by formal amendment. In the near term, it is hard to predict that the end of this reality is in sight. 

That kind of approach can only work in states where politics or court rulings have already established some foundation of equality for gay and lesbian couples, and the number of states that have done that is not a lengthy list. So, in the states where that foundation does not yet exist, marriage equality will only come about through either a bold new court declaration, a change of heart in the state legislature, or a new wave of popular support that can carry the day in a voter referendum. 

There is, of course, one other way: the U.S. Supreme Court could be asked, in the quite-near future, to rule that same-sex couples do have a constitutional right to marriage equality. The Justices may be presented with that fundamental question sooner than some have expected. When that test does arise, as it will, what has been happening in the states may well help to shape the Justices’ reaction, but there is no guarantee of the outcome.

Who really defends the Constitution?

Following upon on Chris Christie's veto of marriage equality in New Jersey, and the remarkable idea in contravention to the Constitution that a minority should have its rights voted on by the majority: Andrew Sullivan points out how the minority opposed to marriage equality keeps changing the rules, and can't even manage to be consistent in their "pro-Constitution" views. (My emphasis)

They moved the goalposts on us. When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable - and undemocratic! - as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny. But this is what a legislative debate can do that no referendum can, and it's why the founders established a republic not a pure democracy:

...But the way in which a tiny 2- 3 percent minority seeking basic civil equality has been forced now to be subject to state referendums, even after winning legislative victories, strikes me as revealing. It's basically an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government, a core achievement of Anglo-American democracy, that can help enhance reason of the accountable against the sometimes raw prejudice of the majority.

Christie is a man whose candor I admire in many ways. But this was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution.

Equal protection

Some things to remember:  the Constitution protects the rights of minorities.  That is why we cannot vote to outlaw inter-racial marriage, to segregate schools, to prevent Mormons from marrying, or to forbid Jews to own property.  And what the courts have said is that gay people have those same rights.

Americans overall are equally split on whether same sex couples should marry.  Ironically, a strong majority of Roman Catholics approve of marriage. (data here)

And just remember, in 1968, after laws against inter-racial marriage were overturned, over 70% of Americans DISAGREED.    Imagine the outcome if they had voted on it?

Why is it that Conservatives who so favor the Constitution, forget all about it when it comes to equal protection? It doesn't say, equal protection only for straight white Christian men.

Marriage opponents want to ban Constitution

Part of the argument in the appeal of the Prop8 case was that the judges should not substitute their opinions for the views of 7 million Californians. Somehow, they seem to believe that if the majority of voters approve of something, it's untouchable.

I often wonder what part of the Constitution these folks read, because they clearly have missed some of the foundations of our republic.

By their logic, a majority of voters in any state could outlaw Jews from holding office, re-instate separate water fountains, or deny women the right to vote.

At some point in our history, a majority of Americans in one jurisdiction or another have approved of each of these. The pro-Prop8 voters in CA are no different.

"But being gay is different!" sputter the Prop8 supporters. Of course it are: is disadvantaged group is different in some way, it's why they are picked out as different. Civil rights are defined as "the rights of citizens to political and social freedom and equality." It was a civil rights battle when women fought for the vote. It was a civil rights battle when the rules against Asian immigration restriction were challenged. It was a civil rights battle to eliminate Jim Crow. And this is another civil rights battle.

The Constitution exists in part to protect the rights of the minority from the tyranny of the majority. The Courts are the final, independent arbiter of those rights and can only be so if they are free of threats.

The supporters of Prop8 may wish that their votes supersede my rights. But to do so would be to fundamentally change the foundation of our country. It would eliminate the protections associated with an independent judiciary.

Indeed, NOM and others are engaged on an attack on the judiciary--it was the foundation of their punitive campaign in Iowa, where they recalled three of the state supreme court justices in a retention campaign. This does not change anything about the pro-marriage decision in Iowa. It's just a punitive reaction and anger from a mob with the modern equivalent of pitchforks.

If NOM had their way, they would open the doors to outlawing religion. While they fulminate that that is the "agenda" of the gays, in fact what they are doing is far more dangerous to their own interests than anything our side plans. indeed, our side has taken steps to protect free speech and religious expression. Their side wants to destroy them.

The anti-equality side has become a particularly dangerous anti-Constitution campaign. That's why they are listed as hate groups. The only hope is that the more extreme they become, the more the folks in the middle realize who the extremists are--and choose instead to support the rule of law, and love.