Friday, November 07, 2008


Every morning since Tuesday (I know, that's only three mornings, but I'm an impatient person) my first thought has been of the body blow the gay community took on election day. I'd like to move past the loss, accept it, and get on with the next step, whatever that is.

Herein lies the problem. What is the next step? Andrew Sullivan believes the best path is to forget the courts and do the hard work of convincing Americans that extending marriage equality is the right thing to do and to therefore achieve equality at the ballot box or in state legislatures. Bringing suits, he believes, will only result in backlash and bad feelings.

He has a point. I'd imagine a not-insignificant portion of Californians voted "yes" on 8 not because they didn't believe in marriage equality, but simply to teach the California Supreme Court a lesson about overturning the will of the people. If the suits that were filed the day after the election end up making their way to the US Supreme Court and the cause of equality prevails there (as it ought to, given the 14th Amendment) will we have won a legal battle but lost a larger, more important war? Americans may grudgingly accept same-sex marriage as a matter of law, but will equality always be stained by the fact that it was imposed upon the country by appointed judges and not elected officials or the American people themselves?

But what if African-Americans had waited until a majority of people felt they deserved equal access to education or the right to marry outside their race? How many more years would it have taken? Would they still be waiting for full equality? Although some extensions of civil rights (women's suffrage is the most important that comes to mind) have come through legislatures, many more had to be decreed and "forced" on the American people.

Of course, no court, no legislature -- not even a majority vote of the people -- can create acceptance. Loving v. Virginia gave interracial couples the right to marry, but I'm certain many still feel a twinge when they see a black man with a white woman. The law can be changed in a moment, but only time (and knowledge) will alter hearts and minds.

For me, the main problem with Sullivan's suggestion that we pursue electoral action is that people are very slow to change their minds. In the struggle to convince people that marriage equality is the right thing to do, we come too often to the impenetrable barrier of religious faith. Many millions of people believe there is an invisible superbeing that watches over us all and expects us to strictly follow rules established by books of mysterious provenance, filled with stories that would, if found on other pages, be considered "magic." No matter how rational or logical an argument you present to the more dogmatic among them, no matter how much evidence you provide, they can always fall back on "God says so" and that will -- for them -- settle any argument.

If Yes on 8 supporters had to back up their points with convincing evidence -- as they would in a court of law -- they'd have a very hard time prevailing. That's why Proposition 22 was declared unconstitutional -- because there is no rational reason to treat gay people differently under the law, even when it comes to civil marriage.

Unfortunately, voters don't have to be given rational reasons. They can say to themselves, "God wants it this way" and nothing can be done to sway them from that position. In California, if you can get a majority of people to agree with you, you can do almost anything -- at least until it runs up against the US Constitution. It happened with Proposition 2 in Colorado and could happen with Proposition 8 -- the SCOTUS could overturn it.

I'd rather have voters or the legislature extend equality, but to be honest, I'll take it any way I can get it.


Amanda said...

People that don't like the fact that this came down from the courts have forgotten what the role of the judicial branch is. The judicial branch is not there to vote with the voice of the people - it is there to stand up for the voice of the minority. Court decisions are often unpopular. People who say that courts have "overstepped their bounds" are simply saying that the judicial system, as currently defined in our country, should be abolished or changed. Courts have the rights to legislate from the bench, so called. That's their role in government. There are checks and balances, so that the legislative branch can go against them.

Now I'm not a political science sort of person, but I get really irritated when people say branches of government are acting contrary to their position when in reality they are actually performing their duties. Government is not meant to confirm what the mass of people believe, but to make sure the rights of people are upheld. Sometimes those rights are not popular. All I can say to this is too bad. Live with it. They're still rights.

Tom said...

I'm with you, girlfriend! "Activist judge" really means "a judge whose decision you disagree with."

Amanda said...

That's exactly right!! Do I agree with everything the court does? No, of course not. But that's their job. Not mine.