[W]hen courts usurp the role of the people, they inject cynicism and bitterness into America's body politic. In his dissent in Casey v. Planned Parenthood (1992), Supreme Court Justice Antonin Scalia put it this way: "[B]y foreclosing all democratic outlet for the deep passions this issue [legalized abortion] arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."
Plainly this is what we have seen with abortion. With the latest intervention by the California Supreme Court, it is beginning to look the same for same-sex marriage. How much healthier our politics would be if those so convinced of the rightness of their views would have equal faith in the decency of their fellow Americans -- and their openness to being persuaded by clear, fair and honest argument.
What I say: I don't know whether the California Supremes will go for the legal arguments now being made to overturn Prop 8 on constitutional grounds. But I do think if the court overrides the election results, our opponents will feel deeply upset, cheated, as if we have pulled a fast one on them.
In the long run, it would be much better for all concerned if we won our equality and civil rights in a fair fight at the ballot box. I'm not saying the courts should never be involved, they certainly should when appropriate. But right now in California, I think we should plan for 2010 and do the hard work necessary to win the votes of the people.
We'd expect the other side to do the same, wouldn't we? So what are we afraid of?
4 comments:
Respectfully, Russ, I do not think such things will ever be secured by the vote of the people. You can do all you want to win hearts and minds, and you'll still have enough of the people who will not be converted.
The courts will be the final arbiters.
Well, that's the question before us now, isn't it? I understand your point of view; it can be argued both ways. Certainly in the segregated South of my childhood, it would have been a long, long time indeed before voters ever gave blacks equality and civil rights. And in some parts, I'd hate to see it put to a real vote even now.
On the other hand, go back and look at the history of the women's suffrage movement: they battled for votes time and time again in all the state legislatures over a period of several decades, and were eventually successful in getting a constitutional amendment passed.
So it's not true to say votes for equality can never be had; but it does take longer. In the case of California, we are almost there; we needed only 3 percent of the vote to change sides and prop 8 would have been defeated.
And my main point is the psychological one: in CA now, overturning a direct vote of the people would incur great bitterness and rancor on the other side. Better for us in the long run to win at the ballot box, as the quoted piece said, in a fair and honest fight. Americans respect the underdog who gets beaten bloody but comes back and delivers the knockout punch.
We are close enough to do it next time in CA if we work for it; time and the generational change are on our side. That's my view, anyway.
In politics, everything that can be done, sometimes shouldn't be done One can win a brief victory while losing, or unnecessarily prolonging, the war. When Gavin Newsome violated his oath of office to uphold the law and began marrying gay couples, many progressive folks were ecstatic. But it resulted in disaster. Because no prior consensus had been built, and no political alliances forged, his actions galvanized the opposition. They have been on the warpath ever since.
I hear you. If prop 8 had gone down to defeat, though, we'd all be saying how bold and visionary Newsome was. When to be cautious, when to be bold?
The gay community is galvanized now; they weren't before. I think that's why it's been hard to build consensus and alliances, as you say; why is it so hard for gay people to get organized, and STAY organized?
Our own internalized homophobia, ya think? Or just too busy, too boring?
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