A friend ensured that I had saw the New York Times story about Theodore Olson, a former U.S. Solicitor General, who is now one of the lawyers for a gay couple challenging California’s ban on gay marriages. Olson served in both the Reagan and George W. Bush. Olson is hardly a liberal. He is something of a libertarian, believing in small government and individual rights. Consequently, he believes that gay marriage bans stigmatize gays and treat them as second-class citizens, denying them their civil rights without any justification. Olson hopes that the case will eventually reach the United States Supreme Court and believes that the case will become as game changing as was Roe v. Wade. (Jo Becker, “Theodore Olson's Road to Championing Same-Sex Marriage,” New York Times, August 19, 2009)
I fully agree with Olson’s views on gay marriage. Nevertheless, I have mixed feelings about settling the issue of gay marriage through a series of court battles. I think if the abortion issue had been decided legislatively rather than judicially, we would have far less polarizing debate about abortion today. Speedy is not always optimal. The harder, multiple slogs to legalize abortion through votes in fifty state legislatures and Congress would certainly have taken longer than did the adjudication of Roe v. Wade. However, I think that we would have firmly established the legality of abortion and developed more of a consensus in support of that view. That has certainly proved to be true in European nations that legislatively legalized abortion.
Similarly, a Supreme Court decision about gay marriage might bypass the state and national legislatures, but could have the unintended consequence of prolonging debate over the issue and hardening opposition. I have seen huge strides towards full inclusion for GLBT people over the last two decades; another two decades, and I believe that sexual orientation will no longer be an issue for the vast majority of Americans and that gay marriage will be universally accepted across the United States. I am far less sanguine about that outlook if the Supreme Court pre-empts our messy, slow, and multiple political processes.
This is not to pin the price of progress on the backs of those currently treated as second-class citizens. Instead, advocates of gay marriage from all walks of life need to stand tall and be counted in supported of equal rights for all of God's children.
10 comments:
I worry about it from the other direction. If SCOTUS finds that GLBTs have no constitutional right to marry, it will take decades to undo.
It will be Plessy v. Ferguson all over again.
That's one of the major reasons a lot of people don't trust Olson (over and beyond his political history). They are afraid he's really doing something that will derail full equality for the foreseeable future. I'm not much on conspiracy theory myself, but I think Olson's ego is pretty damned huge if he thinks he's going to convince Scalia, Thomas, Alito, and Roberts that GLBTs have a right to marry. That hinges everything on Kennedy---and I wouldn't want to make that bet.
Pax,
Doxy
You’re right about the danger of the Supreme Court deciding against gay marriage. Whether as a society or a Church, we are too eager to make policy decisions and enforce them across the board. Real change demands that people change. Hence, the failure of blacks to sustain the civil rights that came with emancipation of the slaves. The law had to change. But that was only the tip of the iceberg. The real change did not begin until the twentieth century civil rights movement. Sits-ins, marches, and other non-violent demonstrations in support of equal rights for gays have more potential, I think, to bring lasting and more substantial change than does a Court decision.
leaving civil rights (or even the decision as to what should or should not be a civil right) to be decided legislatively means they will never be fully settled.
just because the roe v. wade decision was poorly reasoned does not mean difficult civil rights decisions should be left to the legislature.
From my perspective, far more important than poor legal reasoning was that the Court preempted the political processes and debates that would have resulted in a far broader base of support for abortion. The Courts definitely need to protect our civil rights. The proper expansion of those rights, however, is better left to the legislature rather than the judiciary.
As a feminist who has been very active in the pro-choice movement, I have very mixed feelings about this.
If we had waited for state legislatures to recognize the right to abortion, there would still be vast swathes of the nation where abortion is illegal. (That it is practically unavailable--and constantly under attack by state legislators--in many of those same areas is a real issue.)
It will be the same way with same-sex marriage. It will be legal in some states and not in others. Given that marriage confers so many FEDERAL benefits (taxes, pensions, etc.) this issue probably IS a matter for SCOTUS---I would just have preferred to wait until we could get another progressive on the court before bringing it to them.
You've put your finger on the crux of both sides of the dilemma: the fast route of the judiciary that brings very real, substantial problems with it vs. the slower legislative route that tends to minimize the number of complications. I wish there were a third option. This dilemma was also part of my discerning a call to the ministry, as I believe that changing people achieves more than simply changing the law (although both are essential).
Here is an idea thinking out of the box. Let's not do any marriages any more. Let's call them Unions. If the Union of two people is still viable after 5 years, then it can be renamed a marriage with all the benefits. With the poor success rate of today's marriages, we have ruined the basic concepts of marriage. So to haggle about who gets to be united and live together, with benefits, does not get us anywhere.
If the Union is still viable after 5 years, then there is a commitment to each other. Just think about the ramifications instead of all the divorces and legal wrangling.
Interesting idea, Ted. Unfortunately, unions would still involve many legal issues, e.g., healthcare decisions when the injured/diseased party cannot provide informed consent, joint financial arrangements, and custody of any minor children. Prohibiting couples from having children, making joint purchases, or involvement in each other’s healthcare for five years (focusing only on those three issues) seems a non-starter. From a religious perspective, Christian churches bless relationships with the intent that the relationship is permanent, not a test-run to see how things go. Yet I sympathize with the concerns that lie behind your suggestion. I do wish that people were slower to enter into marriage. Even when the best option, divorce is never an altogether good thing.
Health care issues are what living wills, wills and health care documentation could be used in this case. Separate accounts and finances could be easily worked out and custody of children would be either documented or through the legal system.
There is no prohibition about having kids but maybe they will be more careful knowing it will be 5 years before there is joint custody. Of course the woman has to make that decision, just like it is now.
A difficult solution, yes, but doable if we actually care about future generations. The gay issue and other situations will drag on in the courts forever and no viable solution will be forwarded.
Courts in many jurisdictions no longer presume that a child's mother automatically receives custody; the situation with a same sex couple is obviously different as well. As you note, legal documents exist to resolve many of these issues, but as a lawyer once told me, contracts are meant to be broken. In other words, I'm not sanguine that this would reduce legal wrangling or expenses.
Post a Comment