The biggest shock: Pro-Bush gays

The BBQ Pit
101

Well, OxyMoron’s well-thought-out, analytical post was clearly nonsense, because as we have been repeatedly told, you can’t vote for Bush without being an idiot.

Uh huh.

Seriously: Oxy: superb post, reflecting a lot of thinking going on in line – and some spot-on conclusions. One point that resonated especially well for me was the reliance on the judiciary (and, by extension, the federal constitution) by the left to solve all the nation’s problems.

That’s not the role of the judiciary or the federal constitution. And when you accept such a system, you leave yourself open to the unpleasant results that occur when the judiciary does something with which you don’t agree, and you realize there are no effective appeals or alternatives. It’s easier to vote out bigots than to remove them from lifetime appointments. We should rely on our legislatures, and our voices as mobilized, active American voters.

Great post.

102

Well, you got the “moron” part right anyway…

I’ve already stated in another thread that I will not get involved in any general election-type discussions, so I won’t get into an analysis of why your first two points are completely full of shit on the grounds that my answer would veer too close to general election territory. Instead I shall focus only on the SCOTUS issue.

GWB’s appointing even a single justice to the Court will be a disaster. Even if he only were to replace one conservative with another conservative, that justice will tilt SCOTUS conservative for the next 30 years or more. But GWB isn’t only going to get to appoint one justice. Rehnquist is for all intents and purposes dead. Stevens is in his 80s. O’Connor is ready to retire and now can under a Republican president. GWB is going to get at least three appointments, including the chief justice. Oh, but that’s OK you say, because Lawrence is unassailable. Lawrence is already under attack on at least two fronts. The Limon case in Kansas has the potential to restrict Lawrence. Virginia is still arresting men who “solicit sodomy.” Either of those cases provides an avenue for severely undercutting or reversing Lawrence. O’Connor and Stevens both voted in the 6-3 majority. Replace their votes with Scalia clones and you have 5-4 in favor of stripping more of our rights.

Eventually a marriage case is going to come before the Court. Already in Oklahoma there is a federal suit aimed at that state’s new constitutional amendment. There are already at least three solid votes on the Court against marriage (Rehnquist, Scalia and Thomas). Maintain those three (via Rehnquist’s Scalia-clone replacement) and add two more Scalia clones and we have at best 5-4 against equality of marriage rights. If you think GWB will send up an appointment who hasn’t assured him of a vote against same-sex marriage, you’re a fool.

Your sanguinity over the potential loss of Roe is at best disturbing and at worst an insult to millions of American women.

And speaking of insulting, your line of crap about liberals “running to the courts” just flat-out sucks and is very condescending to the people who were on the ground in the thirteen states that passed amendments this year. It’s also ridiculous to pretend that only “liberals” go to court to assail laws they consider unjust. Even if that were the case, so what? That’s what the courts are there for, to serve as a check on the other branches of government. Rather than attacking people who have been largely shut out of the legislative process for going forward with what in many cases is a last resort, perhaps you should be tasking the people who pass the laws and amendments that leave them no alternative.

103

Oxymoron didn’t attack anyone at all. Just so you’ll know for future reference, attacks go something like this: Well, you got the “moron” part right anyway…

104

Up here, we get this line of argumentation all the time, about how we’re colluding with ‘activist judges’ to enforce our will on the decent people of Canada. Besides what a basic ignorance this betrays about the purpose of our judiciary and our Charter of Rights, it’s also rather silly.

You’d think that, if we had such an activist radical agenda, now that we’ve had our right to marry acknowledged by ten different courts in seven provinces and territories, at least one of those would have turned out to have a responsible, upstanding, conservative judge who would have said something against it by now. Or maybe the federal or provincial attorneys general would be choosing to oppose the lawsuits. Or something.

Oddly enough, we’ve been hearing less and less bitching about these activist judges of late. Shucky darn, I guess unequal marriage really is against the Charter.

105

Uh, no. Because the precedents in the Western world (Greece and Rome and say, Mesopotamia) generally considered women as vectors for property transmission. Therefore, it didn’t matter if the woman ever had kids, but her property was transmitted to the husband.

106

It’s interesting – I had a couple of ancestors who were Revolutionary War veterans. And I have read the Declaration of Independence and the Preamble to the Constitution. And none of them suggest that we fought that war, declared our independence, and adopted the constitution to guarantee a few very limited rights, with the omnipotent government free to grant or refuse other privileges. Me, I’m a married white Christian WASP – I haven’t experienced serious discrimination since high school. But I remember what being different in school was like, all too well. And I am flat out disgusted at people who have convinced themselves that freedoms are not worth defending, simply because their own are not (yet) being trampled on.

“Judicial activism” is nothing more than judges doing their job – “saying what the law is” as applied to particular cases, as John Marshall famously said. If you don’t care for their understanding of what it entails in terms of rights, there are means to deal with that: statutes and amendments.

107

Actually, protecting the minority from the whims of the majority is one of the greatest roles of the judiciary and the federal constituion. The power of the majority resides in Congress and the President, and the power to protect the minority is in the judiciary. A tyrannical majority, which we’ve seen oftentimes in this country, can cause great harms to the minority and their only recourse is to the judiciary.

108

Entirely true. But institutionally, the court is always in a precarious position, and never more so than when it leaps too far in social policy. Remember that the apocryphal question asked of the Pope applies equally to judges - they have no divisions with which to enforce their decisions, and must rely on the two democratic branches instead. There is very little to restrain those branches from simply saying, “Well, make me.” And it’s happened - look to the history of Andrew Jackson and the second Bank of the United States.

Equally dangerous is the reality that at any moment, Congress and the President can limit the Court’s appellate jurisdiction by a simple majority. (The House recently passed a law that would strip the Court of jurisdiction over Pledge of Allegiance cases.) The Court might well respond that Congress can’t strip its jurisdiction over the 14th Amendment, but that’s a battle the Court might well lose.

Given this political and institutional context, there are real limits as to the degree to which the Court can effectively protect minorities, if doing so offends the majority to a great degree. At the time of Brown, a majority of this country outside the South was already moving to accept desegregation. But a majority of this country is most emphatically opposed to the concept of gay marriage, even if willing to accept civil unions. We simply don’t have the cultural backing to expect that a court decision in our favor will be accepted and enforced - other than in Massachusetts. And the “victory” in Massachusetts has resulted in enormous step backwards in much of the country.

So the choice is between bad - accepting that I won’t get all of what I want for quite a while - or worse, not being able to get any of what I want for even longer.

While I find it personally distasteful to have to ask people to respect my rights, once I’ve managed to persuade them I no longer have to worry much. That requires patience.

109

Otto, your personal insults are as obvious as they are tedious. You are capable of better, and I suspect it’s because you’re letting your emotions run away from you that you’re devolving to this level of debate.

Our task in fighting ignorance is to stop feeling and start thinking - stop fearing what might happen and focus on what probably will. Let’s remember that even by the time Lawrence was decided, only 14 states retained sodomy laws, and they were in places that weren’t enormously gay-friendly to being with. So what did Lawrence actually do for the vast majority of gays who don’t choose to remain in Alabama or Mississippi? Not much other than make them feel better about themselves. That’s nice, but not terribly relevant. And the fact that only fourteen states retained sodomy laws means that we’d already won the battle on the ground. Outside of a few places that most of us will want to escape anyway, there really isn’t much support for these laws. Sure, sure, some of Bush’s backers would love to see them come back, but they’re overreaching just as surely as gay marriage advocates overreached.

See, once you’ve won democratically, inertia is on your side. And that really is one of the most powerful forces in the world.

110

I intend to continue posting on this thread, but I think it would be a very good idea if everyone read this first:

http://fromasadamerican.blogspot.com/2004/11/how-you-could-have-had-my-vote.html

It is a brilliant personal essay. I do not agree with all the writer’s views, but I was dazzled by the piece as a whole. It ranks right up there with OxyMoron’s great post.

Also, David Brooks (Nov 6, 2004) has a very pertinent article (“The Values-Vote Myth”) at:

http://www.instapundit.com/

In fact, he convinced me that I was wrong about a critical point in my previous posts.

Both pieces touch on many themes which have been aired in this thread.

111

Here is another good one (“To My Fellow Democrats”):

http://backseatphilosopher.blogspot.com/2004/11/to-my-fellow-democrats.html

112

I saw your sales metaphor in another thread, and being in sales myslef, I have to say it’s about the most overall accurate metaphor (to me) for why the Democratic platform did not succeed.

113

What probably will happen within the next four years is that three slots will open up on the Supreme Court and Bush will fill them with justices modeled on his personal favorite, Scalia. Do you dispute this?

The marriage bans this year were in Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Oklahoma, Ohio, Utah and Oregon. With the exception of Oregon, not enormously gay-friendly places to begin with. So really, what did passing those marriage bans actually do for the vast majority of gays who don’t choose to remain in those states?

The existence of sodomy laws anywhere, especially sodomy laws aimed exclusively at gay people, has the effect of allowing our opponents to paint us as unindicted felons, even in areas in which no sodomy law exists. If not wishing to be thought of or treated as an unindicted felon means that gays just “feel better about themselves” then so be it.

Lawrence also added to the foundation of earlier SCOTUS decisions applying the protections of the Constitution to questions of sexual orientation. That is a recent phenomenon in American jurisprudence and has effects potentially far beyond simply decriminalizing sodomy.

I am confused, though. In your initial post you describe Lawrence as an important decision. Now suddenly you say that striking down sodomy laws wasn’t terribly relevant. I don’t see how it can be both.

But the thing is, half of the states didn’t repeal their sodomy laws. 10 were struck down by courts prior to Lawrence and Lawrence knocked out the rest. Texas had its sodomy law judicially invalidated more than once but kept passing not only new versions but targeted versions. The military still makes sodomy a crime. Yes, good on the states that did repeal their sodomy laws, but please don’t pretend like we had some amazing legislative momentum on our side in the battle against these laws.

I continue to take issue with the notion that properly using the courts to strike down unconstituional laws is not “democratic.” Sure, I would love for legislatures not to pass bad laws in the first place and I certainly try to let my legislators know when a bad law comes up for a vote that I want them to vote against it, but sometimes oddly enough Congress or the state legislature doesn’t listen to me and passes a bad law anyway. Suggesting that the (for lack of a better word) victims of bad laws should not avail themselves of the courts strikes me as a lot more undemocratic.

114

I don’t dispute that Shrub will try to do that at least once. What I dispute is (a) that it will succeed - ergo my discussion of the filibuster rule - and (b) that even if it does succeed, it will result in The End Of Our Rights.

As an immediate matter, not much, - it took away something that we didn’t have. But because many of these bans are now vested in state constitutions, it’s made it very difficult to undo the damage in the future. I’d say that prior to Goodridge, we might’ve won full marriage rights in ten-fifteen years. Now it looks like quite a bit longer.

Well, exactly. It’s certaily true that courts occasionally used sodomy laws for pernicious purposes, especially in child custody. But an average gay man who says that the mere existence of sodomy laws makes him feel like an unindicted felon is one who self-dramatizes.

Yes, and that’s the long-term significance. Short term, not so much.

You’re right, I didn’t express myself clearly. Here’s where I’m arriving: Lawrence is the most important gay-rights decision to come out of the Court. But that’s rather like being the very tallest Pygmy. By the time Lawrence was decided, it was pretty anticlimactic because it affected so few states. Its reasoning might build toward future cases, but that reasoning was actually pretty shaky in many key respects so I don’t count on it.

All correct. We don’t have an amazing legislative momentum, and that’s partly because it seemed a lot easier to rely on the courts - state and federal. Where, as in marriage, we’ve won via courts what a large marjority of the public won’t support, our “victory” proves as hollow and fragile as a blown egg. The sodomy decisions were less of a problem because a majority of the public in most places already agreed that these laws should go.

Well, of course using the courts to strike down laws is undemocratic - most of the reason we have an independent judiciary is that it’s an undemocratic counterweight to the legislature and executive! What you’re saying, it seems to me, is that telling you not turn to the courts is unfair. No argument there. It’s vastly unfair. But you seem to be assuming that just because something is unfair, one must take every step possible to rectify the unfairness as quickly as possible. And I’m saying that in our political system, trying to do so often ends up being counterproductive.

Tonight on Newswatch: Life unfair. Film at 11.

115

Well, I had a big long response typed up for you, OxyMoron, and then my stupid piece of shit browser locked up on me while I was trying to get a site and at the moment I’m way too pissed to try to reconstruct all of it.

It was damned eloquent too.

Key points were:

You’re overestimating the willingness of the Democrats to filibuster a SCOTUS nomination, and even if they were willing and able to sustain one, there’s no way they could sustain mulitple filibusters should it come to that.

I have seen no indication in recent pre-Goodridge history that any state, let alone the nation as a whole, was on a course to grant full SSM rights within the next 15 years. The only concrete progress in that direction, other than in California, was spurred by court decisions.

You are perhaps misunderstanding the full scope of Lawrence. It did not simply invalidate sodomy laws. It (AFAIK for the first time) extended the 14th Amendment’s Due Process clause to matters of sexual orientation.

Your circularity in arguing lesislative momentum vs going to the courts is making my head spin.

The original post was a lot better.

116

Ergh, my sympathies. Have you tried Netscape lately? I switched a few months ago, it’s a lifesaver for these things.

Well, there’s probably not much point in another go-round anyway. My view is that with each such nomination W would be losing political capital, not gaining it.

No concrete progress, other than a remarkable increase in the acceptance of gay people and gay relationships. I’ve seen the difference in the 20 years that I’ve been out. We’re still mid-progress, but if you’d told me when I was 16 in 1984 that we’d have got to where we are now I’d have laughed. And that’s the core of my argument: we’ve got quite a bit more progress to make socially before we’ll be able to win court decisions that have a prayer of surviving backlash. Brown barely made it, and we’re not to an equivalent point yet. I’m not suggesting we need to get the whole way. But courts have a very limited ability to convince the public of anything that the public doesn’t want to be convinced of.

Its rhetoric notwithstanding, I don’t believe a close reading of the majority opinion in Lawrence supports that view, because the fundamental holding concerns substantive due process privacy rights rather than equal protection. Romer comes closer, but even that’s not terribly clear.

But trying to come to agreement on what a remarkably opaque, convoluted decision means is probably beyond the scope of this thread.

Actually, I think you’re the one being circular here - what seems implicit in this statement is that it’s impossible to develop legislative momentum in this area without a court decision on your favor. I don’t think that’s the case at all, and sodomy is a good example. Look to Lawrence’s discussion of the history prior to Bowers - almost half the states were rid of their sodomy laws by then, itself notable progress since 1961,when all states had them. You may not have been aware, but in most of those cases it was by repeal. :eek:

117

gets down on his knees and thanks the gods for Egan v. Canada

118

Guy, give it up. Apparently you have bit into the notion that to be conservative is a zero sum game. I will not educate you here, as surely you are a reasonably intellegent fellow, and have simply buried your head in the sand. Please note my previous thread on the subject. Please leave the country now.

Cheers!
BA

119

Mark Steyn offers some very incisive (and funny) observations on the election and the gay marriage issue:

120

If I had my way, inviting someone to leave the country in the manner you did would be on a par with wishing for their death, and punishable by immediate banning. You have not yet been given authority to decide what your fellow Americans may or may not do.