Punting on Marriage Equality Won’t Prevent Culture Wars; It’ll Undermine the Supreme Court’s Credibility

Political commentators, at least on the left and center, seem relatively convinced that the past two days of marriage equality hearings in the Supreme Court won’t result in an opinion extending same-sex marriage rights to all people in the United States. They might be right, but I’m not sure why so many left-of-center folks seem to be warning the Court not to move too quickly on marriage equality. I get why the socially conservative right is doing it — it’s a threat, essentially. “Do a think we don’t like and we will FREAK OUT!” And they will surely throw a mild temper-tantrum if the fundamental right of marriage is found to include same-sex couples. But “Oh jeez, the religious right might act like toddlers again” is not a very good reason to delay granting a group of citizens basic constitutional rights. Also: Contrary to what has somehow become an accepted truth, Roe v. Wade did not ignite the culture wars. Abortion was controversial well before Roe, and while abortion rights were secured in a small handful of states (four, I believe), they weren’t going to move ahead in many more because of conservative, religious push-back. The idea that a Roe-free U.S. would somehow have led to the broad securement of abortion rights without controversy is flat-out wrong. As is the idea that marginalized groups of people should have to wait for the tides of public opinion to turn before they get rights. Which is what this piece in the Nation is about:

Part of the function of our court system is to step in and protect the rights of minorities from the punitive impulses of the majority. Punting on the most salient civil rights issue of the day won’t make the Court look reasonable; it’ll make it look cowardly. Most Americans believe that the role of the Supreme Court isn’t to make law but to correctly interpret existing law within the scope of black-letter statutes and legal precedent. Most Americans also recognize that discrimination is wrong and “separate but equal” isn’t really equal; they also expect the Supreme Court to be at the forefront of knocking down unjust laws, ahistorical as that view may be. Americans would not view dodging the national issue with a narrow ruling—only addressing federal benefits in the DOMA case, deciding petitioners don’t have standing in the Prop 8 case—as a rational Judgment of Solomon; they would see it as a cop-out at best, and even a transgression against the Court’s most fundamental and valuable purpose.

For all the fear-mongering that the marriage cases could be the new Roe, it’s worth noting that they could also be the new Plessy v. Ferguson. That case upheld racial discrimination under a “separate but equal” framework, and remains a dark stain on the Court’s history, and America’s. There’s not just a danger in doing too much too soon; there’s a much greater danger in doing too little, too late.

After all, this isn’t just an academic question or a matter of political strategy. It’s a civil rights issue that impacts real people, today. Here, the comparison to Roe is apt: For all the push-back and the political fights and the rallying of a conservative GOP base, a country without Roe would almost surely not be a better place for women.

Abortion is far from universally available and accessible, but without Roe on the books, women in vast swaths of the United States would likely have no legal right to abortion; even women in more moderate and liberal states would face a patchwork of laws, subject to shifting political power and mores. Just look at the abortion battles raging on a state level today—anti-choice forces work overtime to scale back abortion rights in every state in the nation. Without Roe, the religious right wouldn’t shrug its shoulders and admit defeat when state legislatures voted to secure abortion rights in 1980 or 1995 or 2013 any more than it did in 1970. And as in the pre-Roe era, the result would be that women, depending on their economic status and location, would have a “choice” between expensive and difficult travel to secure an abortion; a dangerous illegal abortion; or no abortion at all and the attendant financial, emotional and personal consequences of being legally compelled to carry a pregnancy to term when you desperately need not to.

While no Roe may save some politicians and political commentators the annoyance of having to focus on the abortion issue during presidential elections and Supreme Court appointments, as one of the people whose rights would be on the no-Roe chopping block, I’ll take political inconvenience over legal intrusions into my most basic human rights.

The Supreme Court has opted to avoid controversy and leave civil rights issues to the states before. It’s been a lesson in disaster. Waiting for public opinion to change before affirming the fundamental constitutional rights of a minority group makes a mockery of the entire concept of fundamental constitutional rights. And when it comes to marriage equality, public opinion already has shifted, with a majority of Americans favoring same-sex marriage rights. If the Supreme Court requires a super-majority of the public to support a constitutional right before they’ll affirm it as such, why do we need a Supreme Court that evaluates constitutional rights?

Commentators and observers seem more or less convinced that the Court will take the least controversial path here, invalidating only the clause of DOMA currently at issue and claiming lack of standing to get out of making a real decision on Prop 8. I hope they’re wrong. I hope we have a Supreme Court willing to directly address the highest-profile manifestation of legal inequality today, striking down DOMA and Prop 8 and declaring, again, that marriage is a fundamental right—and that same-sex couples can’t be excluded from it.

A more tepid decision wouldn’t just hurt same-sex couples—although make no mistake, a failure to affirm nation-wide same-sex marriage rights will in fact hurt LGBT people, their families and their loved ones, serving as a reminder from the highest court in the land that maintaining stark inequality is an acceptable trade-off for not rocking the boat. But it’ll also hurt the Court. Cowardice doesn’t beget deference or respect, and a court that won’t strike down a clearly unconstitutional law is a court that isn’t doing its job.

All nine Justices know that the marriage cases are ones for the history books. Tonight, they’re likely thinking about what side of history they’re about to come down on. They should ask themselves: Does history look kindly upon those who, when presented with important challenges, took the path of least resistance?

Read the whole thing here.


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About Jill

Jill began blogging for Feministe in 2005. She has since written as a weekly columnist for the Guardian newspaper and in April 2014 she was appointed as senior political writer for Cosmopolitan magazine.
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96 Responses to Punting on Marriage Equality Won’t Prevent Culture Wars; It’ll Undermine the Supreme Court’s Credibility

  1. Emolee says:

    Waiting for public opinion to change before affirming the fundamental constitutional rights of a minority group makes a mockery of the entire concept of fundamental constitutional rights.

    THIS. When the schools were integrated, they had to call in the National Guard. Granting civil rights to people in minority groups often causes an uproar among bigots. That is no reason to deny granting them.

  2. Ryan says:

    I just want to post a link to RBG’s Madison lecture, since that seems to be in large part what Jill’s article is in reference to. Though I’d heard of it, I hadn’t taken the time to go back and read it until seeing Toobin’s NYer profile of her this month.

  3. Well, you see, the baseline for every cultural change is how it benefits straight white guys. Abortion benefits straight white guys, even the ones who don’t want to admit it does (fewer unwanted and unplanned children, family planning in the event of pregnancies that would strain resources, oh and maybe society doesn’t want women dying from risky childbirth or unsafe abortions because think of all the babies we’d lose). That it liberates women from a lot of horrible situations is a bug, not a feature.

    Gay marriage? Nope, it doesn’t actually better Ur Straight (White?) Guy’s life in any way. So they can all sit and wring their hands and beat their breasts about how this decision is so HAAAAAARD and how they can’t DECIIIIIIIIIIDE.

    • A4 says:

      You know, straight white guys are no more a monolith than any other broad identity based class. Some straight white guys would benefit greatly from gay marriage by being able to celebrate their gay friends and family and their relationships with a legally recognized marriage celebration. Other straight white men would benefit from gay marriage by having their parent’s relationship legally recognized by the government. Other straight white men who work in marriage related industries would benefit from gay marriage by having increased business.

      I don’t think pretending an oppressor class is a monolith is any more constructive than acting like an oppressed class is.

      • I don’t think pretending an oppressor class is a monolith is any more constructive than acting like an oppressed class is.

        I don’t think that they’re a monolith. Obviously I’m not suggesting that every straight white guy ever opposes gay marriage. I’m using the term “straight white guy” in the same way that POC speaking of race use “white people” or feminists use “men” – to designate an oppressor class, not to imply that every last one of them is a horrible mean person. But thank you for the “what about the GOOD (straight white) menz”ing this discussion.

        I mean, no, seriously. You find me another group which has as much power in any industrialised country. Resistance to gay marriage is largely top-down, just like resistance to reproductive freedom was (and more recently is again) – it relies on power structures and laws, not social sanctions and individual actions. And until that changes, until same-sex marriage is legally sanctioned but socially frowned upon (rather like same-sex sex is today), you’re damn right I’m going to point to the class that’s in power – straight white guys – as being the problem. It’s because they, you know, ARE.

      • A4 says:

        I didn’t say anything about the “good” ones. My point wasn’t one regarding the preservation of the value and reputation of straight white men as good people ™, my point was about how your broad characterization of the benefit of supreme court decisions to straight white men as a determinant of the court’s decision is an argument that is not complete, not coherent, and lacks nuance. One of the ways in which it lacks nuance is it’s incomplete consideration of the possible experiences of straight white men with regard to gay marriage.

        YOU were the one who decided to center the discussion of a supreme court decision around the experience and viewpoints of straight white men, and now you react to the careful examination of that experience, where you placed the discussion, to be unacceptable? That makes no sense.

      • your broad characterization of the benefit of supreme court decisions to straight white men as a determinant of the court’s decision

        I believe my point was specifically related to cultural change. You can tell, because my actual words were “the baseline for every cultural change”. And I was speaking to Jill’s point re: the Left’s waffling over “culture wars”, not the supreme court’s decision. For the rest, Douglas says everything I want to.

      • DouglasG says:

        Your first and third examples are almost washes. In the first case, the ceremony may be all well and good in theory… until it conflicts with Team X’s playoff game. And in the third case, the net gain to SWM in the wedding-related business will be offset by the need to flee for those who only went into a wedding-related business specifically because it was discriminatory in the first place.

        Even your second example has a potential offsetter. You forget those who want to swoop in after the death of a distant relation who has not spoken to anyone in the family for decades, overturn the deceased’s will in favour of zir same-sex partner, and carry off the estate, ideally kicking the partner out on the street if at all possible.

        I shall allow that SWM are not monolithic, but agree with the great majority of Ms Kitsune’s response to you. I’d only add that, in my experience (hers may well differ), straight white women aren’t all that far ahead of straight white men. I don’t say this to try to counter the point about the power structure and its top-down nature, but more to try to bring this back to being primarily about giving Straight at least 80-85% of the pie chart in what’s driving the opposition. That’s just a rough guess, not an exact calculation.

      • I’d only add that, in my experience (hers may well differ), straight white women aren’t all that far ahead of straight white men. I don’t say this to try to counter the point about the power structure and its top-down nature, but more to try to bring this back to being primarily about giving Straight at least 80-85% of the pie chart in what’s driving the opposition.

        Absolutely. In my experience, straight is a way better indicator than race (naturally). It’s just that even white women don’t generally have the kind of institutionalised power, not just in the supreme court, but in general society (which is what I was talking about) to affect top-down changes to anyone’s lives.

      • Lolagirl says:

        my point was about how your broad characterization of the benefit of supreme court decisions to straight white men as a determinant of the court’s decision is an argument that is not complete, not coherent, and lacks nuance.

        I…don’t get what you think you’re arguing here.

        Because seriously, how can you refute the reality of how USian culture has been dominated by and operated in ways that benefit white hereto men above all others. The founding fathers? All hetero white men, who made sure that they put a system in place (both legally and socially) that would consolidate the power of white, hetero men and insure their continued stronghold on that power. Those in power to govern in this country continued on that system. Women, people of any color, all were excluded, and only quite recently were given the freedom to do the quotidien things that white, hetero men had long been able to take for granted. You know, like owning their own bodies, and their own personal and private property, or vote, marry the people they want to marry, or use the same water fountains or bathrooms or other places of public accomodation that white, hetero men did.

        Do you seriously need a history lesson here, or are you being disingenuous for the lulz of it?

        Sure, there are plenty of white, hetero men who are evolved enough these days to understand why marriage equality is a good thing for all. But the old guard still trying desperately to hold onto their social, political and economic power? Not so much, and still pretty much exclusively comprised of white, hetero men.

      • Sure, there are plenty of white, hetero men who are evolved enough these days to understand why marriage equality is a good thing for all. But the old guard still trying desperately to hold onto their social, political and economic power? Not so much, and still pretty much exclusively comprised of white, hetero men.

        Clearly, the solution is to put them all in the wedding industry. Because no one in the wedding industry would ever refuse a gay couple service. Right?????? That never happens, right??????

      • hellkell says:

        Sorry “OW you straight white dudes are stepping on my foot” isn’t nuanced enough for you. Not everything is about you.

      • Henry says:

        Thank you A4. There’s a huge difference between saying society benefits an entire group (white straight males) and was so structured by members of that group, and making generalizations about the entire group. I, and many of us, don’t want the benefits created by these people for me, and actively work to eliminate them and the oppression they cause – that must count for something.

      • making generalizations about the entire group

        Oh? Saying that straight white guys are generally holding power and that laws are structured to protect their interests? What generalisation was that? I was under the impression that that was, you know, reality.

        Because, I mean, I COULD make an actual generalisation and say something like “the uniformity of the white guys (mostly straight ones) who are having hurt fee-fees about having their power pointed out here indicates that all straight white guys just go around with hurt fee-fees screaming persecution every time someone says they have power”. But that’s patently untrue, because of the number of straight/white guys who’ve managed to learn that institutionalised power is not about them and are not bawwwing at me about my comment. It’s a shame you’re not among them. I look forward to your enlightenment.

      • Henry says:

        We’d just appreciate some f-ing acknowledgement. You could easily have this discourse by saying gay marriage doesn’t better the lives of conservative straight white guys. Gay marriage certainly betters my life as a liberal straight “white” guy. My friends down the block can finally get married and get all the benefits owed them after having a kid, buying a house and living with each other for 10 friggin years, and I care about my friends.

      • We’d just appreciate some f-ing acknowledgement.

        Here you go.

      • Henry says:

        not good enough. :P please bake one that says supports equal rights for all humans.

      • But what about the ANIMALS, Henry?!?!?!

        (Dude, I’m serious, though, I’m singling out structures of power, not individuals. I’d have to be a tremendous hypocrite to do otherwise. And while I have super-special powers of rage, I don’t do random tarrings of groups.)

    • aveskde says:

      Well, you see, the baseline for every cultural change is how it benefits straight white guys.

      This strikes me as both factually incorrect (the landmark civil rights rulings and legislation of the ’60s completely contradicts this) but also fatally simplistic.

      Instead of scapegoating a group of people based on ancillary features, it’s much better to look at it in terms of politics. That is to say, we have many different competing political factions in the country, and each faction is self-interested in terms of power and clout.

      For example, in the same-sex marriage issue, the religious right (which itself has many factions) has a personal interest in maintaining its followers and ability to have control over American society. Same-sex marriage is not the raison d’etre of the religious right, it’s just an arbitrary political issue taken up because it used to appeal so much to our prejudices and thus allowed a political group seeking power to maintain a base of voters. In this sense, anti-same-sex marriage is merely an issue to try and create and hold power for a political faction that is losing relevance in our society.

      It doesn’t matter that the religious right is generally white, or male, or even straight. It just matters that they are a faction trying to hold onto power against their continuing obsolescence.

      • snorkellingfish says:

        So, what, we’re not meant to notice that straight white guys have the majority of power and they’ve traditionally used that to advantage themselves and fuck the rest of us over? We’re not meant to notice that, even now, a lot of those straight white guys who are purportedly on our side are still questioning why this matters so much and why we can’t just wait and do it the way they want us to?

        I mean, this discussion isn’t even about the reactions of those hard right conservatives that you say we should really blame. It’s about the reactions of the left wing people who claim to support us right up to the point where they decide some other principle about the right way of doing things is more important.

        You’ve come into a discussion of queer rights, accused us of “scapegoating” straight people and then gone into some bullshit about how sexuality doesn’t matter. Do you not get how it might be offensive that you seem more worried about some angry gays side-eyeing straight liberal dudes for ignorinh how much our rights matter than you are about the straight liberal dudes’ decision to put the feelings of conservative bigots above our rights? Cos god forbid we don’t ignore how existing structures of social power affect politics.

      • It doesn’t matter that the religious right is generally white, or male, or even straight.

        Yes, I’m sure it’s a total coincidence. *slow clap*

      • EG says:

        Well, it’s not like Christianity has conferred any undue power on straight white dudes or anything, historically speaking. The Religious Right is just a random conglomeration of disembodied ideologies that have nothing to do with racism, homophobia, and misogyny.

      • aveskde says:

        Yes, I’m sure it’s a total coincidence. *slow clap*

        It actually is a fluke of history. Ideology does not know race, gender or sexual orientation. The religious right can be any race, color, or sexuality.

        For example, in the Middle East, their “religious right” is the Taliban, clergy, and so on. They also aren’t white.

        Did I mention that in the rural communities, also in Africa, the women are accomplices to human rights violations? In these cases, the women force their daughters to be “circumcised” for tradition.

        Anyhow, I’m getting off topic. The point I’m making is that race and gender, sexual orientation, etc. can all change within an ideology. The only things that race, gender, etc. help to confer are “in” versus “out” groups but even that is flexible.

      • Ideology does not know race, gender or sexual orientation.

        Yes, totally. This is why the Gay Republic of Gaylandia were once the dominant force in the world.

        Oh, and bringing up FGM? Very nice, neat little trump card you have there. It’s almost like you don’t know what the words “social sanctions” mean, or “gendered coercion”, or “internalised sexism”.

        But you know what those mean, right? I mean, you do know all about ideology.

      • aveskde says:

        Yes, totally. This is why the Gay Republic of Gaylandia were once the dominant force in the world.

        Well, for example, Imperalism and extreme nationalism have brewed in empires across continents. Japan, China, North Korea, and then you have the European and Ottoman empires.

        It’s true that sexuality isn’t really at the forefront of world domination, but culture and populations are infinitely flexible. Who knows what the next two thousand years will bring, besides more needless war?

        Oh, and bringing up FGM? Very nice, neat little trump card you have there. It’s almost like you don’t know what the words “social sanctions” mean, or “gendered coercion”, or “internalised sexism”.

        It’s an observation. I know for a fact that if any feminists here tried to convince the women across the seas of their grievous folly, those women would not agree. They would perform the mutilation out of tradition.

        Let’s take it on a related tangent? Tradition is a powerful force. How many mothers circumcise their infant sons out of the sake of tradition? How many feminists minimize the harm of that form of institutional abuse of the infant’s rights?

        But you know what those mean, right? I mean, you do know all about ideology.

        No, I don’t know all about ideology. That’s why I visit websites like this. To expose myself to different ideologies that I might understand them through the words of their followers.

      • EG says:

        I know for a fact that if any feminists here tried to convince the women across the seas of their grievous folly, those women would not agree.

        You do know that there are women from those very communities who are actively fighting the hegemony of FGM, right?

      • EG says:

        How many mothers circumcise their infant sons out of the sake of tradition?

        In the US? Not very many. Jews make up less than 2% of the population. No good numbers on Muslims, according to Wikipedia, but the state with the highest concentration is Michigan, with 1.2%. So I’d say that most circumcisions in the US (about 79% of infant boys) are done because that’s the default at hospitals, not out of any overwhelming sense of tradition, but because of a deliberate medical campaign in the late 19th and early 20th centuries. Interestingly, the single most important factor seems to be whether or not the father is circumcised, which doesn’t seem like much of a tradition to me. But don’t let that stop you from mommy-blaming.

      • Well, for example, Imperalism and extreme nationalism have brewed in empires across continents. Japan, China, North Korea, and then you have the European and Ottoman empires.

        No, no, you don’t get to say that ideology knows no sexual orientation and then slide off into talking about race. Bad commenter; no cookie! You said straightness is ancillary to oppression of gay people. Prove it.

      • Instead of scapegoating a group of people based on ancillary features

        Okay, I just had to come back to say: you think straightness has nothing to do with opposition to LGBT rights? You think straightness/whiteness/(perceived)maleness has nothing to do with access to power and cultural change? You think those are ANCILLARY?

        I…really?

      • Donna L says:

        Hey, it’s really all just about politics, you know? It could be anything; they just happened to pick same-sex marriage!

      • aveskde says:

        Okay, I just had to come back to say: you think straightness has nothing to do with opposition to LGBT rights?

        Correct. The only thing I think “straightness” does is confer a lack of empathy, just as homosexuals find it hard to empathize with straight people, because both groups cannot relate on a personal level with each others’ experiences (in terms of attraction) but this is often overcome with dialogue.

        You think straightness/whiteness/(perceived)maleness has nothing to do with access to power and cultural change? You think those are ANCILLARY?

        Correct. I think of them as attributes that just describe a tendency of power holders in our current society.

        Power shifts hands all the time. In a century, your great great grand-children might talk about the power struggle against “brown women” or some other group who sets itself up as the dominant culture.

        That’s what I’m talking about when I say it’s ancillary. I’m saying that whiteness, straightness, being male are not intrinsically power-holding. They just describe the attributes of a class of people who presently tend to enjoy more power now, in our immediate situation.

      • Li says:

        Correct. The only thing I think “straightness” does is confer a lack of empathy, just as homosexuals find it hard to empathize with straight people, because both groups cannot relate on a personal level with each others’ experiences (in terms of attraction) but this is often overcome with dialogue.

        AHAHAHAHAHAHAHAHA *tear*

        Oh boy, we need some Judith Butler up in here right away.

      • Li says:

        But no seriously whiteness and straightness are constructed with reference to racialised/sexualised outgroups and therefore innately identities rooted in dominance.

      • aveskde says:

        But no seriously whiteness and straightness are constructed with reference to racialised/sexualised outgroups and therefore innately identities rooted in dominance.

        As I understand your argument, you are saying that one term is relative to another. I agree. This is the nature of language and reasoning to contruct categories opposite to one another.

        However, it is not true that they are in themselves dominant. Social systems produce dominance, not words. If you had a society that was a majority bisexual, homosexuals and heterosexuals would be the minority and thus subject to the whims of the majority. Same with white people, or culture (ignoring that in the countries where white minorities have power, it is due to an historical legacy of conquest and imperialism, which is a whole other can of worms).

        In order to make your logical reasoning work, you would have to assume that white people and heterosexuals are intrinsically dominant. You would also have to assume that homosexuals, bisexuals, etc. and all the other races are intrinsically passive.

      • igglanova says:

        I’m saying that whiteness, straightness, being male are not intrinsically power-holding. They just describe the attributes of a class of people who presently tend to enjoy more power now, in our immediate situation.

        I don’t think anyone here objects to this blandly obvious statement. We take umbrage to ignorant shit like this:

        It doesn’t matter that the religious right is generally white, or male, or even straight. It just matters that they are a faction trying to hold onto power against their continuing obsolescence.

        Of course it matters that a powerful group is ‘generally white, or male, or straight’. Failure to notice this, or address it in our analysis, means discarding crucially important data for no good reason. Any resulting discourse will be so unspecific as to be virtually useless.

      • aveskde says:

        Of course it matters that a powerful group is ‘generally white, or male, or straight’. Failure to notice this, or address it in our analysis, means discarding crucially important data for no good reason. Any resulting discourse will be so unspecific as to be virtually useless.

        Why does it matter, outside of describing the group’s ancillary characteristics?

        Put another way, if we took a plane to Afghanistan, and met the Taliban, would it matter that they are generally tan-skinned, male? If we looked at the Black Panthers, would it matter that they are generally black? The color of skin, the gender, the sexual orientation don’t describe the ideologies that the people believe in. At best, they give indication about who the ideology may appeal to, and who the ideology is friendly towards (especially concerning xenophobic ideologies).

        Let me show you an example of where looking at these features breaks down. Let’s say you’re using your “straight, white male” enemy group as a framing point. What do you have to say about Roman Catholic Latinos? Their beliefs tend to share a lot with the religious right in America, concerning homosexuality, abortion, etc. How about Muslims? Also, before the obvious reference to a male influence, or patriarchy is mentioned, it’s important to note that these two groups have women that are against many feminist ideological and philosophical positions.

        Does my position seem more clear now? If you examine the ideology, and the politics, it becomes more clear, I think.

      • Power shifts hands all the time.

        Yes, thank you, I’m sure we couldn’t have guessed. It’s not like any of us are from countries where power has shifted from colonial whites to the indigenous population or anything.

        …So what you’re saying is, because in a hypothetical world brown women might be the dominant group, and because FGM in Africa, it’s totally irrelevant that straight white guys have power in America. And we should totally not look at their “ancillary features”. They’re just a faceless, unidentifiable ideological blob.

        Wow, you’re fucking stupid.

        Also, everything Igglanova said.

      • However, it is not true that they are in themselves dominant.

        Of course they’re not intrinsically dominant. Unfortunately, since we are speaking of a little place called “reality”, they ARE currently dominant. Quit derailing what everyone’s saying.

      • igglanova says:

        Put another way, if we took a plane to Afghanistan, and met the Taliban, would it matter that they are generally tan-skinned, male? If we looked at the Black Panthers, would it matter that they are generally black?

        Yes.

      • EG says:

        If we looked at the Black Panthers, would it matter that they are generally black?

        It sure as fuck mattered to the Black Panthers, but what did they know, I guess.

        The color of skin, the gender, the sexual orientation don’t describe the ideologies that the people believe in.

        They absolutely do describe where they sit in the power hierarchy and thus the ideologies that they are likely to have a vested interest in. Social being determines consciousness, as Marx said. And given, as Li writes, that these identities are constructed around narratives of hierarchical disenfranchisement, “whiteness” as we understand it is absolutely an artifact of racism.

        However, it is not true that they are in themselves dominant. Social systems produce dominance, not words. If you had a society that was a majority bisexual, homosexuals and heterosexuals would be the minority and thus subject to the whims of the majority.

        Yeah, and as my grandma used to say, if your bubbe had balls, she’s be your zeyde. So what?

        Social systems produce words, categories, identities. If we had a society that was majority bisexual, our entire way of thinking about sexuality and how it relates to identity would be different, and we would have different ideologies and frames of reference. But we don’t.

      • aveskde says:

        It sure as fuck mattered to the Black Panthers, but what did they know, I guess.

        But like the Klan, and other racial nationalist groups, there is an ideology behind it all. Being black, or white, isn’t the end of it all.

        They absolutely do describe where they sit in the power hierarchy and thus the ideologies that they are likely to have a vested interest in.

        Well, let me try the argument this way: where do the vast number of poor, white, straight men belong in that power hierarchy? How about, someone who is mixed race? Do they have half the power of the hierarchy, the white half?

        I totally agree that people form in-groups and out-groups based on what they percieve as “friend” and “other” but I think you attribute too much to “white” and “straight” and “male.” Some power hierarchies form because people of a common race work together, but they also have an ideology that forms, and this eventually drives it more than just skin color.

        How about, for example, the gangs in a city? The members of rival gangs will share skin color, place of birth, nationality, gender. But it isn’t enough to have that, you must identify as part of the group. There is something more than just gender and skin color at work here.

        And given, as Li writes, that these identities are constructed around narratives of hierarchical disenfranchisement, “whiteness” as we understand it is absolutely an artifact of racism.

        I am strongly skeptical of that narritive. I agree that historically, laws existed which systematically categorized races, however I believe that culture is much more fluid than you give it credit for. I believe several generations is enough to change the perception in our culture about these words.

        Social systems produce words, categories, identities. If we had a society that was majority bisexual, our entire way of thinking about sexuality and how it relates to identity would be different, and we would have different ideologies and frames of reference. But we don’t.

        Will your philosophy change to encompass the changes in society when it does? I strongly suspect that human sexuality is much more flexible than we give it credit for. I’ve observed a wave of sexual exploration and new identities this generation. Who’s to say that in a few generations bisexuality, or “mostly heterosexual” won’t be the norm?

      • EG says:

        Will your philosophy change to encompass the changes in society when it does? I strongly suspect that human sexuality is much more flexible than we give it credit for. I’ve observed a wave of sexual exploration and new identities this generation. Who’s to say that in a few generations bisexuality, or “mostly heterosexual” won’t be the norm?

        Let me know when it happens. Otherwise, it’s just so much angels dancing on the head of a pin nonsense, and I don’t care. Further, this has nothing to do with sexual exploration. Behavior is not the same as identity. Sexuality, as I’m sure you know, didn’t even emerge as an identity category until the 19th century. That’s not because people didn’t have sex with partners prior to that–sexual behavior always existed. Identity formation is something else entirely.

        I agree that historically, laws existed which systematically categorized races, however I believe that culture is much more fluid than you give it credit for. I believe several generations is enough to change the perception in our culture about these words.

        Laws have nothing to do with it. And what is this “several generations” business? In the US, we haven’t even had one generation. John Lewis is still alive. These laws existed within his lifetime.

        where do the vast number of poor, white, straight men belong in that power hierarchy? How about, someone who is mixed race? Do they have half the power of the hierarchy, the white half?

        In the US, historically and to a great but lesser degree in the present, mixed-race people have been categorized as black–it’s the “one-drop” rule. To the extent that identity is determined by how you’re treated by the power structure, that is still the case. Poor white straight men enjoy the fruits of being white and straight, but are of course exploited when it comes to the class structure, which can generate a number of reactions, pushing some people to the left and others to the right. This is what intersectional analysis is for.

        These questions are not unprecedented. They’ve all been worked with before.

        But like the Klan, and other racial nationalist groups, there is an ideology behind it all. Being black, or white, isn’t the end of it all.

        First of all, comparing the Panthers to the Klan is so vile and disgusting that at this point, I’m willing to write you off as a troll. Second of all, so what? The ideology isn’t the end of it, either. The Panthers were black, and that wasn’t a coincidence. They had friendly relations with some white leftist groups, like the SDS, but you couldn’t join if you were white but subscribed to their principles.

      • Li says:

        I am strongly skeptical of that narritive. I agree that historically, laws existed which systematically categorized races, however I believe that culture is much more fluid than you give it credit for. I believe several generations is enough to change the perception in our culture about these words.

        Of course it’s fluid. That’s the point. If whiteness is merely ancillary to power, why on earth would it constantly shift to include previously outgrouped immigrant communities as their presence was normalised? You seem to think that identities are separate from ideology. They aren’t. Ideology and identity are deeply entwined; identity categories are ideologically loaded.

      • snorkellingfish says:

        But like the Klan, and other racial nationalist groups, there is an ideology behind it all. Being black, or white, isn’t the end of it all.

        And comparisons like this show why it’s bullshit to pretend that things like race and the structural power given to white people don’t matter. If you pretend race is just an “ancillary characteristic”, you miss the difference between a group trying to enforce a dominant ideology of white supremacy and a group trying to challenge that dominant ideology. The characteristics you’re labelling as “ancillary”? Have a hell of an impact on people’s lives, and it’s wilfully ignorant of you to minimise that.

      • DouglasG says:

        [Correct. The only thing I think “straightness” does is confer a lack of empathy, just as homosexuals find it hard to empathize with straight people, because both groups cannot relate on a personal level with each others’ experiences (in terms of attraction) but this is often overcome with dialogue.]

        I actually wish, not so much that this were true, but that it were an actual, viable option. The gayest person I’ve ever known (and I am resolutely avoiding falling into the trap of working out how to quantify that particular quality) has never had the slightest difficulty empathizing with straight people. If I ever encountered anyone who had sufficiently eluded straight culture, I’d be tempted to give zir a medal for resourcefulness.

      • matlun says:

        Same-sex marriage is not the raison d’etre of the religious right, it’s just an arbitrary political issue taken up because it used to appeal so much to our prejudices and thus allowed a political group seeking power to maintain a base of voters.

        No, this is wrong. You are missing the religion as a factor. They have long been claiming that homosexuality is immoral, against nature, and against God’s laws. This is an honestly held religiously based belief and not some position chosen for tactical reasons.

        Same-sex marriage is society recognizing that homosexual relationships are equally worthy of protection as traditional marriage which fundamentally goes again what they believe in. Of course they will fight it.

      • aveskde says:

        No, this is wrong. You are missing the religion as a factor. They have long been claiming that homosexuality is immoral, against nature, and against God’s laws.

        I would agree with this, except that the scripture they quote from condemns all sorts of things as also immoral. Homosexuality is just part of a long list, but you don’t really see major activity from the religious right trying to criminalize shellfish, masturbation, adultery, fornication, and so on.

        This is an honestly held religiously based belief and not some position chosen for tactical reasons.

        They may honestly believe it is immoral, but they don’t fight for the criminalization of many other behaviors which are categorically outlawed in the bible.

        For example, fortune tellers are a very immoral thing, but you don’t see “sin laws” against fortune tellers popping up.

        It seems to me that homosexuality is tactical because enough people used to agree that it was a bad thing, and hence they could argue from a position from religious authority.

      • matlun says:

        They may honestly believe it is immoral, but they don’t fight for the criminalization of many other behaviors which are categorically outlawed in the bible.

        That the Christian Right have a selective reading of scripture is not in dispute. This is a separate discussion that in no way invalidates my point.

        They honestly believe that homosexuality is deeply wrong. They honestly do not believe that eating shellfish is wrong. They are not arguing for death being the proper punishment for adultery and I do not think many of them honestly think it should be criminal (though there are some).

        What scripture “really” says is a theological question that is pretty irrelevant to the current situation. Their beliefs are what they are.

    • matlun says:

      Well, you see, the baseline for every cultural change is how it benefits straight white guys. Abortion benefits straight white guys, […]

      Gay marriage? Nope, it doesn’t actually better […]

      This argument does not work. It is not as if there is not strong resistance against abortion rights. Especially from the same groups who are most strongly against same sex marriage.

      The resistance is just based in homophobia and religiously based bigotry.

      • . It is not as if there is not strong resistance against abortion rights.

        As I said immediately after, “even the ones who don’t admit it does”. Abortion rights provide empirical and direct benefits to straight white men, which is why the forced-birth movement is positively riddled with people who’ve had abortions or gotten abortions for their partners. See: every politician who rages about TEH BABBYS only to have coerced women into an abortion or two.

      • matlun says:

        Yes. But your thesis seemed (to me) to be that a change is accepted if it is helping white straight males. And you gave two examples – abortion rights (which do, according to you) and same sex marriage (which does not).

        But the resistance to abortion and same sex marriage is very similar. You even have the same players in both debates. The struggle for same sex marriage rights started a bit later, but how the cases are playing out look very similar to me in principle.

  4. AMM says:

    Waiting for public opinion to change before affirming the fundamental constitutional rights of a minority group makes a mockery of the entire concept of fundamental constitutional rights.

    On the other hand, without public support or at least acceptance, a court’s decision ends up simply being ignored, which reduces the public’s respect for the court. There’s a reason judges make such a big deal about even petty forms of disrespect: respect for the courts is the only power that courts have to insure that their rulings will be carried out. The SCOTUS may have ruled in Brown v. Board of Education, but it was the Eisenhower Administration’s and later the Kennedy Administration’s willingness to send in troops to enforce it that made it more than empty words.

    I think it is a bad idea to try to effect social change from above. If the SCOTUS leaves it to the states, it means that supporters of same-sex marriage will have to continue to press for change at the local (well, state) level, and when (no longer “if”) they are successful, those changes will stick in a way that they won’t if they are imposed by the Supreme Court.

    My own pet idea, speaking as a non-lawyer, would be that the SCOTUS should use a “one-two punch” approach. First, DOMA should be struck down as an unwarranted intrusion into the states’ affairs. California should be decided based on California law which, if I’m not mistaken, was the basis for the lower court’s ruling. Then, once the dust has settled, you’ll get suits insisting that same-sex marriages made under the law of state A (which performs them) must be recognized in state B (which doesn’t), due to the full faith and credit clause. At that point, the SCOTUS can use the precedents with opposite-sex marriages and rule that state B has to recognize the marriage.

    I’m sure there’s a legal problem with that approach, since I’m not a lawyer, but I still like it.

    • Emolee says:

      I think it is a bad idea to try to effect social change from above.

      The Court is supposed to interpret the Constitution and other law. Decisions are not (or should not be) about either creating social change or appeasing the masses. Rulings may do those things, but they should not determine the ruling.

      All people should have the right to marry the consenting adult they want to. The sex (or sexual orientation) of the parties should not matter, and making it matter violates the Constitution. That is what should be considered here.

      • TomSims says:

        “The Court is supposed to interpret the Constitution and other law. Decisions are not (or should not be) about either creating social change or appeasing the masses. ”

        Agree 110%

      • Henry says:

        By supporting marriage equality they will be finally interpreting the Constitution properly Tom. The 14th amendment and 5th Amendment are the most under-enforced parts of the U.S. Constitution. I feel I must quote the relevant clauses here:

        “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 14th Amend.

        “No person shall…be deprived of life, liberty, or property, without due process of law.” 5th Amend,

        Therefore State Prop. 8 type laws violate the 14th amendment, and the attempt by Congress to classify non straight married people as unmarried under federal law violates the 5th amendment because it deprives gay people of liberty and property rights (e.g. tax status/retirement social insurance etc.)

        It’s really not that hard and it’s not about what the majority of the population believes/supports or not – that’s mob rule.

      • EG says:

        The Court is supposed to interpret the Constitution and other law. Decisions are not (or should not be) about either creating social change or appeasing the masses.

        I think it’s a mistake to think that textual interpretation can be separated from creating social change or dealing with public opinion. The constitution didn’t change between Plessy vs. Ferguson and Brown vs. the Board of Ed. It’s the same document. How a text is interpreted is always contingent on who is doing the interpreting, their interests and desires, and their relationship with their larger culture. As Angela Carter said, reading is as creative an act as writing.

    • Anon21 says:

      The SCOTUS may have ruled in Brown v. Board of Education, but it was the Eisenhower Administration’s and later the Kennedy Administration’s willingness to send in troops to enforce it that made it more than empty words.

      You think massive resistance is a plausible reaction to a ruling that same-sex marriage is constitutionally required? I’m extremely skeptical. I think there is nowhere near the depth of feeling on the bigot side of the anti-gay issue that you saw among segregationists in the 1950s. I think even people at NOM are aware that they are fighting a rearguard action, and that someday marriage equality will be the law of the land. Hell, Rush Limbaugh has said he’s resigned to that. So the notion that a 50-state ruling would be unenforceable strikes me as pretty unlikely.

      I think it is a bad idea to try to effect social change from above. If the SCOTUS leaves it to the states, it means that supporters of same-sex marriage will have to continue to press for change at the local (well, state) level, and when (no longer “if”) they are successful, those changes will stick in a way that they won’t if they are imposed by the Supreme Court.

      All very well and good, if we assume that gay people aren’t suffering under the current regime of marriage inequality, but they are. I really doubt that many of them are going to be too enthused by your call to wait a few decades for full legal equality, because it’ll just be better and more entrenched if they do it the “right way.”

      Then, once the dust has settled, you’ll get suits insisting that same-sex marriages made under the law of state A (which performs them) must be recognized in state B (which doesn’t), due to the full faith and credit clause. At that point, the SCOTUS can use the precedents with opposite-sex marriages and rule that state B has to recognize the marriage.

      1) This is more-or-less the exact top-down approach you were just criticizing. You do realize that the implication of state B being forced to recognize a same-sex marriage contracted in state A means that anyone who lives in a state without marriage equality can just take a quick trip to the nearest equality state and neatly bypass their state’s law, right? This would effectively be decreeing nationwide marriage equality.

      2) Cases interpreting the Full Faith and Credit Clause squarely foreclose this approach. It is well-recognized that states need not recognize “foreign” (meaning in this case, contracted in a different U.S. state) marriages that are contrary to their public policy.* I think it unlikely that federal courts will want to overrule those precedents to accomplish the result of nationwide marriage equality if they’re too scared to just adopt the Equal Protection argument.

      *This is why DOMA Section 2 was redundant and unnecessary.

      • Anon21 says:

        Augh, I went nuts with my hyphenating. I know that “more or less” shouldn’t be hyphenated in that context, really!

    • Jill says:

      On the other hand, without public support or at least acceptance, a court’s decision ends up simply being ignored, which reduces the public’s respect for the court.

      Sure. But a majority of the American public now supports same-sex marriage rights. So there isn’t a lack of public support here. There is a lack of overwhelming public support, but this isn’t a case where the court would be going against widely-held public opinion.

      There’s also an American mythology about the Court usually being on the right side of history, and leading the charge for fairness. This is really the only chance they’re going to have to do that in the same-sex marriage context.

      So I’m not really seeing a downside.

    • Mariucel says:

      those changes will stick in a way that they won’t if they are imposed by the Supreme Court.

      May I please disagree vehemently. Please look at the discussion of ND’s abortion laws a few posts ago. What happened was that a right wing administration decided to fuck women over and made the laws accordingly. HOWEVER, supreme court rulings have made clear that this new law is unconstitutional to such an extent that some posters here assume the new law can be voided before it takes effect, if I understood them correctly.

      Because NO, laws are not a more thorough change. Laws can change any day, depending on the administration, but even a right wing SCOTUS is more in line with SCOTUS tradition than a right wing administration would be.

    • Willard says:

      Like Jill said, widespread but not overwhelming support, check.
      A POTUS that won’t defend or enforce the law, check.

      We’re already better off than we were back in the day. I want all the religious bigots and apologists wringing their hands about their traditions and sacraments to be cast down, not another decade or so of death by paper-cuts.

  5. Miguel says:

    I’m looking forward to reading Scalia’s dissenting opinion. It should be the funniest, most unhinged writing anyone’s read in a long time.

    • moviemaedchen says:

      Funny perhaps for you. Not so much for me – I don’t find it amusing to hear in just what ways and for just what reasons a privileged bigot sitting on my nation’s highest court thinks I’m inferior to people like him, or comparing his prejudice against me to righteous indignation at murder. I’d rather not have to be reminded of my Otherness and marginalization yet again by someone with the power to deny me basic legal recognition.

      Fuck that.

      • Emolee says:

        Seconded. Although sometimes I take the may as well laugh than cry approach, and I do laugh at the bigots and their bigotry, especially when it is over the top like Scalia. But inside it always hurts.

      • Lolagirl says:

        I hear you. Although from a scholarly standpoint it’s becoming more and more clear over time how Scalia is only further undermining his legacy with some of the dissenting opinions he’s been writing in more recent years. In 40 years or so I think the consensus is going to be that he may have started out with promise but ended up being an all around terrible jurist.

      • aveskde says:

        Funny perhaps for you. Not so much for me – I don’t find it amusing to hear in just what ways and for just what reasons a privileged bigot sitting on my nation’s highest court thinks I’m inferior to people like him, or comparing his prejudice against me to righteous indignation at murder.

        Don’t think of it that way then. Just think of the whincing, cringing, high blood pressure, and general gnashing of teeth of the far right. Assuming that the court rules in favor, think of it as our nation putting men like him in their proper place, that all the money and luck of birth in the world means little when the supreme court of the land decides against you.

      • moviemaedchen says:

        Kindly don’t tell me how to respond to my own marginalization. If the court rules in favor of full federal marriage equality – hell, if the court were to rule 8-1 that Scalia’s a bigoted troglodyte who should be paraded through DC painted purple before being summarily ejected from the country – I still don’t want to have his hateful bullshit spewed at me even for a moment. I would prefer that he fucking not say it in the first place. Barring that, I’d rather not hear it. But given the media in this country I have no doubt that, whatever ruling comes down, they will endlessly repeat whatever shit comes out of his mouth without thinking about the effect this has on real people.

        You are free to respond to it however you like, and if the attitude you describe is how you choose to look at it, fine. I’m glad for you. But don’t tell me that I need to think that way. Even jokingly. I’m just not a fan of goddamn feelings policing and this week particularly I don’t have the spoons for it.

    • gratuitous says:

      Yes, Scalia’s dissent should be a marvel of jurisnonsense.

      As to the larger point of the original post, I think it’s safe to call the repressives’ bluff on marriage equality. They compromised their credibility quite badly during the repeal of “don’t ask, don’t tell,” when all sorts of horrors and judgments were predicted to be visited on our collective national noggin. I figured at the time that it was just big talk, designed to salve the hurt feelings of the losers. I also predicted to myself that within a month of DADT repeal, some culture warrior was going to come out and say that it wasn’t that big a deal after all.

      I was off by about three weeks. I don’t remember who it was, exactly, but some right-wing talking chucklehead did indeed come out and pronounce that DADT just wasn’t a major issue, and it was really no skin off the repressive right’s nose if the armed forces openly recognized a long-standing reality. Which made me want to shake him by the shoulders until his teeth rattled and holler in his monkey face “THEN WHY THE HELL DID YOU MAKE SUCH A BIG FAT HAIRY DEAL ABOUT IT FOR THE LAST DECADE?!?!?!”

      When the Supremes rule DOMA unconstitutional in a couple of months, there will be the predictable wailing and gnashing of teeth in certain quarters, but within 100 hours, somebody among the usual suspects will dismiss the entire issue with an airy wave of the hand and words to the effect of “Oh, it’s no biggie; never was.” Although I will be better prepared for it, I will probably still have the same reaction as I did to the casual dismissal of the repeal of DADT.

      For many of the culture warriors on the right, civil rights is indeed just an academic exercise, a way of keeping score, and a political dalliance.

      • DouglasG says:

        [For many of the culture warriors on the right, civil rights is indeed just an academic exercise, a way of keeping score, and a political dalliance.]

        Very much agreed. There is something I’ve noticed a little different among some culture warriors on the left about how winning “the right way” becomes more important that winning itself.

    • Donna L says:

      There’s nothing “funny” about Scalia’s writing. Nothing. Especially when you and/or people you love are targeted by his “funny” words. Every time he opens his mouth and starts talking about “the homosexuals” and excoriating what he calls “sodomy” (you can hear the contempt as he writes that word), that’s my son he’s talking about. Do you understand now why it isn’t funny? Or do I need to do the Godwin’s thing and analogize Scalia to someone like Goebbels or Hitler ranting about the Jews?

      • I can understand why you don’t think it’s funny. But that doesn’t mean you should make some absolute statement about it being funny or not. Humor is subjective.

        Some queer people actually do find the illogical rants against homosexuality to be quite amusing. And you can extend that line of reasoning to almost any other ranter and their subject. Some oppressed people deal with illogical bigotry through humor.

      • Personally? I find random frothing-rage homophobia from some weirdo internet commenter funny, for instance. When it’s someone with the power to take civil rights away from literally hundreds of thousands of people in a country, I don’t find it remotely funny. I have friends in the US, and friends’ kids, who are gay. I just…see where Donna’s getting this from. Also, I don’t know if Miguel’s queer. If he is, then whatever, but I personally find straight people going “aww, the cutie-pie homophobe” at the words of powerful homophobes to be…less than considerate.

      • Andie says:

        But that doesn’t mean you should make some absolute statement about it being funny or not. Humor is subjective.

        Let me guess, you’re probably a Daniel Tosh fan, too.

      • No Andie, I am not. I don’t even know who that is.

        I do find it interesting that you think you can determine weird, random facts like what TV shows people like based on fairly neutral (and logically sound) statements like “humor is subjective”.

        I’m going to take you for a wild fan of “Matlock” based on your one-sentence response to me.

      • Andie says:

        My snark is too subtle, I guess. The “humor is subjective! My marginalized friends think it’s funny so you can’t say it’s not!” Thing reminds me of people defending Tosh’s rape jokes because ‘humour is subjective.’

        I mean, way to miss Donna’s comment about being targeted by this shit and tone policing her for generalizing.

        For the record, I love Matlock.

      • Well Andie, you can call it tone-policing, but I call it not having one LGBT person act like the spokesperson for all of us. We are not a monolith.

        Donna’s point seems to be that LGBT and/or GSRM people cannot find rabid homophobes amusing. As a GSRM person, I think I have every right to inform people that that is not accurate.

        I think you need to look up “tone-policing” personally. Because as far as I understand it, tone-policing is when you claim that you don’t have to listen to a marginalized person because they aren’t being nice enough.

        If disagreeing with someone is now tone-policing, please inform the mods, because there is tone-policing going on like wild in all of the threads on Feministe.

      • moviemaedchen says:

        Donna, mac, emolee, lolagirl – thanks. The support is appreciated. I guess I can’t find my thick skin this week. Yeah, some individual queer people might deal with it through humor, but that’s a subjective choice on their part, and I intensely dislike the suggestion that that’s somehow a better way of dealing with it. Someone saying ‘I as a queer person find this funny because X,’ fine by me. Someone just announcing ‘oh this will be funny!’ – not so much. At least with the former, beyond it being clearly personal, not policing, there’s no sense of unexamined privilege whacking me in the face.

        Lolagirl – I agree with you that, hopefully at least, in the future people will recognize just what a terrible jurist Scalia is, as well as what a bigot he is. I just wish we didn’t have to go through all this beforehand. It’s not like there isn’t already plenty of evidence to that effect. *ragefroth*

      • The support is appreciated. I guess I can’t find my thick skin this week.

        I hear you. Hugs if you want ’em.

      • moviemaedchen says:

        Hugs are greatly appreciated, mac. Hugs back if you want them too. This stuff is draining.

        Now I will go devour all the chocolate my mother sent me! LOL.

  6. The Last Selina says:

    I think David Cole made some good points in the NYT article.

    A quote from the article:

    The Supreme Court has long ruled that a mere ideological interest in seeing a law enforced is a “generalized grievance” that is not sufficiently personal or concrete to support a constitutional “case or controversy,” the only kind the court has the authority to resolve.

    I think a decision on Prop 8 would fall outside the authority of the Supreme Court and I don’t think that one of the three branches of government declining to take on more authority than it should would be so horrible. *cough*warrantless wiretaps*cough*indefinite detention*cough* I don’t think setting a precedent for more authority is a good idea. Ruling on gay marriage would be great but what happens when it’s another state law? What about Colorado and Washington and their recent decision to legalize recreational marijuana? I want them to be able to let that decision play out. If they can figure out how to regulate under those circumstances, other states will follow suit. I don’t want the federal or judicial branches of the government to interfere. I know you’re going to say but smoking pot is not the same as equal rights. True but anti-marijuana legislation has long been a tool used to oppress black people. Legalizing weed would improve a lot of lives, as well. And in both cases, the states would be motivated from within to make their laws work rather than being imposed on by federal government. Eventually though, some states will have to deal with an imposition from the federal government which I will explain if you are still reading after this paragraph.

    I think same-sex marriage should be compared to interracial marriage rather than Roe or anything else. What happened in that case was at a certain point, most states had overturned any laws banning interracial marriage and the southeastern states were the holdout. Loving v. Virginia made it to the Supreme Court from there. That is exactly what will happen with same-sex marriage if the Supreme Court declines to decide Prop 8. I don’t think that’s a terrible thing. The social acceptance around this issue has been incredibly quick, each state will soon legalize same-sex marriage minus the southeastern ones. At that point the Supreme Court can throw down the hammer and end it. This is where I part ways with the article though:

    Doing so could touch off huge civil resistance in the most conservative states.

    On that, I agree, but I don’t think that is a good reason not to do it as David Cole asserts. In my prediction, that will happen when a case from one of the southern states makes it to the Supreme Court anyway but that is just too damn bad. They’ll have to deal with it. In the mean time, every other state will be setting up their state laws to include same-sex marriages and proving that the world doesn’t come to an end over this issue.

    I can see why people would want the Supreme Court to take the case though, because yeah, just give people their civil rights already.

    • Jill says:

      I think a decision on Prop 8 would fall outside the authority of the Supreme Court and I don’t think that one of the three branches of government declining to take on more authority than it should would be so horrible.

      How in the world do you figure that a decision on Prop 8 falls “outside the authority of the Supreme Court”?

      Also, I’m not sure what you think you’re reading or what “facts” you’re basing any of your comments on, but the Supreme Court already has taken the case of same-sex marriage. And it’s demonstrably untrue that same-sex marriage is progressing across all 50 states. Yes, it’s been voted on in a handful of left-leaning ones, but states across the country have laws limiting marriage to opposite-sex couples. And while public opinion is shifting, I don’t see same-sex marriage being legal by way of the popular vote in a majority of states any time in the near future.

      • matlun says:

        How in the world do you figure that a decision on Prop 8 falls “outside the authority of the Supreme Court”?

        The quoted argument from Cole at least is about standing. In this case centered on whether the defenders of Prop 8 have standing (since the state refused to defend it).

        It was still a strange way to phrase it, though. Clearly deciding whether or not Prop 8 violates the US constitution is within their authority in principle. Whether or not it that will be ruled on in this specific case.

    • Anon21 says:

      If you’re going to take the position that initiative/referendum official proponents cannot defend initiatives in court when state officials decline to do so, you’re only endangering controversial initiatives like the Colorado and Washington marijuana decriminalization laws. If a federal district court decided that the Colorado and Washington laws were preempted by federal drug laws, and then an anti-marijuana DA and Governor declined to appeal that decision, the initiatives would never be reviewable by an appellate court.

      The Court has cut back on standing doctrine enough over the past three decades without also making it impossible for voter-created referenda to be appealed in the face of opposition from elected officials.

    • Henry says:

      The parallel is school desegregation. SCOTUS is not here to punt on issues. The Constitution is here to provide a baseline level of rights below which no state should sink. And your weed laws are just fine, the state police will not arrest you, just the feds.

    • Willard says:

      The federal government is still enforcing the laws it is required to vis a vis distribution of marijuana. Look at the crackdowns and cases it’s bringing in California.

      This whole thing makes very little sense.

  7. The court states that one of their function is to protect the rights of the minorities from the majorities which is what they should really be doing. What will be the sense of all this law if they weren’t going to do their job? Marriage equality doesn’t mean that it would prevent culture wars, it just states the “equality” of both man and woman, which is what I agree.

  8. DAS says:

    The Court is supposed to interpret the Constitution and other law. Decisions are not (or should not be) about either creating social change – Emolee

    I think Warren would have disagreed with you. My understanding of his judicial philosophy is that, in the absence of leadership from Congress or the Executive, it fell to the SCOTUS to instigate the social changes required to ensure a just and health society.

  9. Karl says:

    Raise your hand if you think that the US Supreme Court needs “credibility”.

  10. General PSA: If being told you have privilege by being part of a group that has historically held power in a region feels like being kicked in the ass, take a deep breath, remind yourself that you are not the entirety of that group, your own goodness and cookie-earnings are not the measure by which that group in general is judged by people they’ve been stepping on for centuries, that you are not the direct subject of the discussion, and that the discussion is fundamentally not about you, O Good Specimen.

    No, seriously, it’s not about you.

    Not even a little bit.

    • roro80 says:

      This is a very, very weird comments section. Thanks for fighting the good fight, macavity…

      • Thanks, roro. O_O I didn’t realise that saying “straight white guys get coddled by society” is such a revolutionary statement, but apparently not…

  11. TomSims says:

    A quote from one of my favorites

    “”Is uniformity attainable? Millions of innocent men, women and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced an inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.” — Thomas Jefferson, from “Notes on Virginia”

  12. Henry says:

    People left out of the marriage equality discussion:

    Any groups of people who wish to claim the government granted rights associated with marriage. (no I am not talking about cults where teenagers are brainwashed into marrying and living with the “great leader”) I’m talking about consenting adult relationships with more than one person that function as a married entity.

    • Agreed, though I’ve no idea how that would look.

      Personally, I particularly love the way the right-wingers froth about Gays Getting Married (because it’s never lesbians or bisexuals, just Gays) being a gateway drug to Polygamy, Bestiality, Mass Hysteria!eleventy! when it seems like every other guy in the Bible had two wives…

      • Henry says:

        I have a friend who wears two rings. I have no idea how her relationship works with her husband and her girlfirend other than that all 3 of them are very happy together and very deeply in the closet. I just think if they wanted to get married they should be able to. But the cynic in me does see that if progressives advocated for this same sex marriage would be dead as far as support from the masses. Same sex marriage gets support from the masses because it is presented on the surface by the advocates to be what I will call “hetero-normal” (the poster child couple with a house and kid and dog, except you replace one spouse with someone of the same sex). The easy solution is to get government out of the marriage licensing business altogether, but we’d need to do something to protect children and divorcees, I can point to a country (Israel) where the government tried to leave the various religions in charge of registering marriages, divorces (if allowed), etc. and let secular people live together w/o marrying (or strangely get married abroad – outsourcing government lol) – and it became a horrid mess forcing the national courts to step in piecemeal.

        The whole bestiality comparison sickens me. We’re talking about humans here, not Fido…

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