Marriage and Culture

[rowyn]

I read a rather mediocre opinion piece in the Wall Street Journal, on the subject of gay marriage. The author favored the Supreme Court staying quiet on the question and letting states decide one-by-one instead. The one interesting argument in the essay was 'legislation resolves issues: judicial rulings bury them'.

The main thing that makes this interesting is Roe vs Wade, which protected the right to abortion forty years ago -- but the country remains split even now, and a surprisingly even split at that, over whether or not abortion should be forbidden/restricted.

It feels to me like, one way or another, gay marriage is going to be accepted and legal in most if not all of the US within the next 10-20 years. Despite some early legislative opposition, the tide seems to have turned now, and I think that turn is permanent, just like the turn in favor of mixed-race marriages in an earlier era. This is the right side of history, however people may feel about it now. I am very happy about it, myself.

That Roe vs Wade analogy does make me wonder if the method by which it becomes legal will make a difference in the long run. Probably not -- I don't think it made a difference with anti-miscegenation laws, which were also overturned by courts. But it's an odd idea to contemplate, that letting a question be settled at the ballot box might promote a more lasting transformation in civil society. Or that judicial rulings might prevent the same. It has a certain resonance as an idea, a feeling of truth, though I don't know that there's any evidence it is.

Comments

[tuftears.livejournal.com]

I agree to some extent, it's not the justice department's job to CREATE laws, it's the justice department's job to INTERPRET laws. But I don't agree that it should be a state-by-state ruling, I think if there is a national consensus, there can be (not necessarily should be) a national law on the subject.

The problem is that a national law isn't going to pass in today's highly polarized Congress.

[rowyn]

Generally, the states have been left alone to make their laws on marriage -- the laws against mixed-race marriage were made and repealed on a state-by-state basis, for instance. But it is messy.

Allowing gay marriage is getting to be a pretty popular position, so it wouldn't surprise me if Congress in four years could agree on it. Which is awesome given that it hasn't been even 20 years since Clinton signed DOMA to make it explicitly forbidden.

[tuftears.livejournal.com]

Yeah, it wouldn't surprise me if Congress shifted radically after the 2014 elections.

[rowyn]

I don't even know that it'll need to be a shift in the members of Congress -- quite a few politicians have reversed positions on this already. Including the president! I may be too optimistic, though.

[terrycloth.livejournal.com]

Legislation doesn't really settle anything -- there've been too many examples of people passing legislation and then it being reversed or ignored recently for me to feel encouraged if a law passes that I agree with.

Whereas the whole point of the supreme court is for someone to get the last word.

I'm not sure that gay marriage is really a constitutional issue, but I guess if you want it to actually be something people feel safe doing without worrying that in the next election or the next primary it'll be completely overturned because public opinion shifted, that's the only way.

So, yeah. I guess I feel exactly the opposite.

[rowyn]

Yeah, from a legal standpoint, a Supreme Court ruling is a lot closer to final.

[alltoseek.livejournal.com]

The separate-but-equal and Jim Crow laws were essentially turned over by judicial ruling. I think the judicial rulings are important to ensure that the minority in government actually abide by the laws; that the ideal justice that the people intend by the laws, are actually followed.

Actually, neither legal nor political action actually resolves issues. It's always one smaller body of people imposing their will on everyone, with the claim that they represent a larger group of people.

[rowyn]

The separate-but-equal and Jim Crow laws were essentially turned over by judicial ruling.

This is a good point. Anti-miscegenation laws were also overturned by a Supreme Court ruling, although looks like there were only 16 states that still had them at the time. I think the Roe vs Wade situation is unique and not indicative of a large pattern.

[alinsa.livejournal.com]

I'd actually written up a big response, but then I thought better of it and killed it. Then I decided I was going to sit it out. And now, I decided I'd just write something sort of in-between [which I ended up failing at]. But anyhow, perhaps against my better judgement, here we are. ;)

Some notes upfront:

1) At the federal level, as long as the federal government refuses to acknowledge same-sex marriages even from states where they're valid, same-sex couples are at a massive disadvantage, financially and otherwise. Same-sex spouses are not considered next of kin, don't qualify for social security benefits, don't have standing to file various types of lawsuits (like a wrongful death suit), have to pay large taxes on things like inheritance, and other such. This is affecting legally married same-sex couples right now.

2) At the state level, as long as a state can choose whether or not to honor another state's marriages, very dangerous situations exists -- there have been cases where couples were attending some function or on vacation out of their home state, had an accident, and one partner died alone in the hospital because their partner, to which they were legally married, was not considered family and was not allowed to make decisions for their partner, or even see them before they died. There's many other examples of problems this causes, but that's a particularly notable one (and has happened more than once).

3) The purpose of much of the Bill of Rights (and the Constitution as a whole) is to protect the minority from the tyranny of the majority -- after all, it's not the popular ideas and opinions that need protecting. And that protection, by necessity, needs the judicial branch.

...

I agree with the general idea: that changes which come around through more social and "democratic" means could potentially be "stickier" changes than those that come primarily from legal rulings. But keep in mind that even when the nation as a whole decided interracial marriage was ok, it still took acts of the supreme court to actually get every state to recognize the legality of this type of arrangement. Same thing with desegregation.

I guess to some degree, my reaction is to reframe the question. I think the question you're actually asking, effectively, is: at what point is it appropriate for the government to step in and protect a minority from the masses? Is it ok for a minority to be treated unequally in the short term, if it means that they'll be more accepted in the long term? (You could also add a "at what point does an arbitrary group of people become a protected minority," but I think my original swing at reframing the question probably captures the gist of your thoughts better).

And in way of response to that reframed question, which I tried to make as neutral as I could, I substitute in a minority group and situation to give you the non-neutral, but probably more directly discussable: Is it ok for the faculty of a school to stand by and watch the fat kid get beat up, if it means that in ten years, maybe fat kids won't get beat up in school? Please note that I'm not trying to make a strawman argument here where people will go "duh, of course we shouldn't" ... I personally thought "me, of course, I think it would be totally wrong to let the fat kid get beat up" ... and by the time I was done writing out the question, I was no longer sure how I would actually answer it.

(I choose the fat kid analogy because I think it's important to note that same-sex marriage isn't just an idealistic discussion, but people are actually getting hurt by the current situation.)

(the rest in next comment, due to comment limits)

[alinsa.livejournal.com]

(remainder)

Finally, I don't think Roe v. Wade is actually a fair comparison to the same-sex marriage issue. The problem I have with the abortion cases in general, is that the nature of the issue means that you actually have two conflicting rights, that of the mother and that of the child, and for one to prevail the other has no choice but to have their rights removed. And indeed much of the abortion debate does revolve around "at what point does a child-in-progress gain rights?" (though it's framed in media as "at what point does life begin?" but I think it's the same underlying question). And when you're in a situation where every case is a matter of "someone loses their rights," I just don't see how that can ever be settled. All the debate over when life starts, if a mother gives up her rights by having sex, etc, just boils down to "who loses their rights, and when (or do they ever get them at all)?"

And I think that's a fundamentally different situation than something like same-sex marriage, where even if same-sex couples get new rights, opposite-sex couples don't lose any.

So... that didn't end up a short response (I blame Rowyn. Sorry, Rowyn!). Strangely, though, it ended up as a completely different long response than the one I'd written originally -- and as a better one that actually looked more directly at the underlying suggestion/question. Go figure.

[rowyn]

Yes, I think you're right. The laws promoting segregation or prohibiting interracial marriage are a much better analogue to gay marriage than the abortion issue, and court rulings don't appear to have substantially impaired social acceptance of the former. So, not really thinking the "how" of legalization much affects long-term social acceptance.