Tag: proposition 8
Are the Courts Progressive?
by Josh K-sky on Aug.09, 2010, under Politics
There’s a temptation for liberals, especially when confronted with demagogic initiatives like California’s Prop 187 and Prop 8 and Arizona’s SB1070 to look to the courts and the function of judicial review as the locus of minority protection in U.S. democracy. In its ugliest form, this takes the form of an anti-populist snobbery: “thank god we have the courts to protect us from yahoos.”
An old Scott Lemieux post provides a good summary of why, although this may be the case from time to time, progressive outcomes are rarely due to judicial review. Long excerpt below the fold.
A Change Is Gonna Come
by Josh K-sky on Aug.07, 2010, under Politics
[M]arriage has always been understood, with very few exceptions, as the union of a man and a woman. This is true across time, across cultures, across religious traditions, etc. Does it really seem likely that this remarkable consensus is nothing but a nasty desire of one group to flaunt its privileged position over a minority? Is it really feasible that the world’s cultures all consulted about how to put down gay people and came up with marriage as the solution?
William Duncan, director of the Marriage Law Foundation, in National Review‘s The Corner
It is a rather amazing fact that, of the very many dimensions along which the genital activity of one person can be differentiated from that of another (dimensions that include preference for certain acts, certain zones or sensations, certain physical types, a certain frequency, certain symbolic investments, certain relations of age or power, a certain species, a certain number of participants, etc. etc. etc.), precisely one, the gender of object choice, emerged from the turn of the century, and has remained, as the dimension denoted by the now ubiquitous category of “sexual orientation.” The is not a development that would have been foreseen from the viewpoint of the fin de siècle itself[...].
Eve Kosofsky Sedgwick, Epistemology of the Closet
42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.
a. Tr 531:25-533:24 (Chauncey: The categories of heterosexual and homosexual emerged in the late nineteenth century, although there were people at all time periods in American history whose primary erotic and emotional attractions were to people of the same sex.);
Judge Vaughn Walker in Perry vs. Schwarzenegger
This is a court ruling, not an academic seminar at Berkeley.
Kathryn Jean Lopez at The Corner
One of the most impressive and least discussed aspect of the ruling that has overturned Proposition 8 is its sense of history. The standard right-wing dismissal of gay marriage is that marriage has for millennia been an institution that joins a man and a woman, and that same-sex marriage hasn’t even been on the agenda of gay rights groups for very long. Even sympathetic critics see the place of marriage on the gay agenda as emerging “as if out of nowhere over just the past few years”, and not without reason.
The excerpt I pulled from the ruling is slightly misleading; for all the attention Perry vs. Schwarzenegger gives to the historical contingency of homosexuality, it gives much more to the evolving qualities of marriage. Racial restrictions and divorce laws loosen over time. Historian Nancy Cott testified about the laws of coverture and the ways in which “the wife was covered, in effect, by her husband’s legal and economic identity.”
“Chauncey” cited above refers to George Chauncey, who authored the amicus Historian’s Brief in Lawrence vs. Texas. There’s been much discussion about how the legal framework of Walker’s decision is aimed directly at Justice Kennedy, seen as the swing Supreme Court vote. Less has been made about the importance of the historical grounding to Kennedy; as Rick Perlstein wrote in an article about Chauncey, “the heart of Justice Anthony Kennedy’s new legal doctrine in the 6–3 decision [of Lawrence vs. Texas], ranging over some dozen paragraphs, is a virtual recapitulation of the Historian’s Brief arguments.”
It would be hard for the Supreme Court to allow a radical challenge to an eternal truth, and right-wing rhetoric like the reductio ad absurdum in the William Duncan quote depends on this. But the case has been carefully made that a century-long shift has led to an incontrovertible conclusion. The challenge no longer looks like a radical upset, but as a mostly typical (and slightly queer) American pattern of expansion of justice and liberty.
Zip Up Your Skirt and Get In The Ring
by Josh K-sky on Jun.19, 2010, under Politics
Dahlia Lithwick is a little too subtle when she asks the question “What happens to our civic life when we’re all too scared to participate?”
In the wake of Prop 8′s passage, activists publicized the names of individual donors to Yes on 8 and encouraged boycotts. To find tactics she calls “inexcusable and genuinely threatening”, Lithwick links to an editorial by the San Francisco Chronicle’s editorial page editor, who writes:
Protesters have shouted insults at people headed to worship; temples and churches have been defaced. “Blacklists” of donors who contributed to Yes on 8 are circulating on the Internet, and even small-time donors are being confronted. A Palo Alto dentist lost two patients as a result of his $1,000 donation. The artistic director of the California Musical Theatre resigned to spare the organization from a fast-developing boycott. Scott Eckern, the artistic director of the Sacramento theater group and a Mormon, had given $1,000 to Yes on 8.
Not quite Mississippi Burning. Let’s break it down: “People headed to worship” presumably means in the Mormon church, which raised $40 million to pass Prop 8. It makes me happy to know that people are shouting insults at them. Existing laws prohibit defacing temples and churches; I bravely submit that they should be enforced. If I found out that the money I was spending on my dentist was going to defeat marriage rights, I would find a new dentist and I would thank the person who told me.
I personally feel ambivalent about using a boycott of an organization to drive an individual with repellent views from his job. I might question it as a tactic. But there’s no question that people have the right to not direct their funds where they will be used to hurt them politically. I think the Prop 8 donors who cry scared are genuinely surprised that they don’t have a right to be liked. I think they’re surprised that people take it personally when they prevent them from marrying.
I think they’re scared in part by their own empathy — the yawp of rage that sounded after Prop 8 won made them feel, for the first time, just how bad gay people felt at being told they couldn’t marry. Knowing for a moment that anger, it scared them to know that someone else had it towards them.
Justice Scalia, mirabile dictu, gets it right. Lithwick:
While he acknowledged that threats of violence and hate mail can be scary and should be addressed by other legal means, Justice Antonin Scalia dismissed Bopp’s concern that one’s political opponents are just a mouse-click away from hunting you down as “touchy-feely, oh-so-sensitive.” An exasperated Scalia warned at oral argument that “you can’t run a democracy this way, with everybody being afraid of having his political positions known.”
The United States has a robust avenue for anonymous political participation. Besides your blog. I speak of the vaunted secret ballot. If you want to anonymously support a cause, do so on election day. Otherwise, if you put your money where your mouth is, be prepared that others may do so as well.