Friday, May 18, 2012

Marriage and Equality

(I've not yet proof-read/edited the entry below, so be prepared for any grammatical errors. Tags will be added later, when I have the time/inclination to whittle tags down to the essentials.)

This is something of a follow-up to my last entry on the subject, in light of President Obama's (phony) evolution to support for what the cultural left now frames in terms of "marriage equality" (and the cultural right frames in terms of "redefining marriage"). In my last entry, I observed that the cultural Right, which has essentially staked its intellectual reputation on this issue, is out of arguments. The last, pathetic resort of these right-wingers is demagoguery about the "definition of marriage," which may well play in vast swaths of the Bible Belt which would - if they had their way - go back to criminalizing "sodomy." But the anti-"marriage equality"/"redefining marriage" side is losing - badly - in the courts, where reasoned arguments matter and irrelevant BS is disregarded. When Ted Olson, the lawyer representing the couples marginalized by California's Proposition 8, put the (conservative!) case for equal-protection in Newsweek more than two years ago, the debate - rationally speaking - was pretty much ended. On the rational merits, the opponents have been left to flail about helplessly.

So where does it go from here? I have in mind what the majority opinion from the U.S. Supreme Court might look like. Now, I admit that I am coming at this as an amateur at jurisprudence and substantive law. I am a layperson on these matters who can at least name some key Supreme Court cases. A (if not the) key precedent on the same-sex (")marriage(") issue is Lawrence v. Texas of 2003, and a key feature of our nation's Constitution coming to bear on the issue is a judicially-acceptable interpretation of the Equal Protection Clause of the Fourteenth Amendment. Now, the majority opinion I have in mind (again, I note I am an amateur layperson so my formulation may be inexact in legal terms) would go something like this: The Court will want to come to the "best compromise" on the issue, hedging so as not to piss off either side too much, and to do so without running too obviously into accusations of "cultural engineering" or "legislating from the bench" or "judicial activism" or other such euphemisms that either side of the political spectrum tends to engage in when it disapproves of a Supreme Court ruling, depending on the issue. In this case, the Court will not want to be seen as "redefining marriage," but at the same time needs to affirm what common decency affirms on the issue: a substantive equal protection of rights under the laws of the states. Noted same-sex (")marriage(") advocate Andrew Sullivan would object to a "separate-but-equal" solution, though we do have judicial precedent for such a thing (which, in the case of Brown v. Board of Education (1954), didn't last all that long). [EDIT: I have since been corrected that this case was one overturning a previous decision upholding the "separate but equal" solution.] The "separate-but-equal" solution in this case is the requirement, on Fourteenth Amendment grounds, that same-sex couples have all the same rights and protections under the law as man-woman couples, but that these equal substantive rights do not require that same-sex couples be able to get married under state law. The commonsensical "middle ground" solution that has occurred on a state-by-state basis is civil unions (though apparently, on a state-by-state basis, there still are substantive differences between marriages and civil unions, which render them unacceptable even under the "separate but equal" solution). If the Supreme Court were to go for the "best compromise," it would simply be this: states must have equal rights whether in the form of marriages or civil unions, and that form is left up to the individual states.

One particularly appealing feature of such a compromise is that the last, pathetic resort of the equality-opponents loses even its demagogic force, except perhaps in the very culturally backward states. This compromise does not "redefine marriage" at the federal level, leaving the definition of marriage up to the states. So on what basis, in the political atmosphere of 2010s America, would the equality-opponents have to object? They get to keep their semantic preferences, but they don't get to continue marginalizing same-sex couples under the guise of "protecting the definition of marriage."

I don't, however, think that it's really a matter of semantics in the more bigoted regions of our country. If it were, then those regions would have already allowed, at the minimum, civil unions for same-sex couples, but they don't. That leaves bad faith, malice, ignorance, stupidity, obfuscation of the relevant issues, misrepresentation of the real agenda, or other such ugly things as the explanation for this. (And President Obama should still be held to account for his past political pandering to such ugliness; I don't buy his "evolving on the issue" bullshit for a second, and Andrew Sullivan is out in la-la land if he thinks Obama is praiseworthy for (what is in fact) shifting with the political winds. He's a f'ing politician with no identifiable core save for strategic-tactical Alinskyism/Machiavellianism. This Sullivan admiringly characterizes as his "meep-meep" quality. Stick with Greenwald if you want bullshit- and la-la-land-free analysis of this president's actions. (Sullivan protests, but he's way too easy on the president regardless - definitely so if he doesn't call him out for being a core-less political calculator.))