Queerty is better as a member

Log in | Register
  SLOW DOWN

America Isn’t Ready For A Supreme Court Ruling Legalizing Same-Sex Marriage?

In 1956, political scientist Robert Dahl warned that pluralistic democracy cannot easily handle issues that both intensely and evenly divide the polity. Indeed, such issues threaten the viability of our system, because they polarize contending groups and engender politics-exiting bitterness among group members who are defeated. Examples of such high-stakes issues in our history are slavery, immigration, prohibition, apartheid, and abortion.

Add same-sex marriage as an issue that now divides the country both intensely and evenly—and is therefore an issue that ought not be resolved one way or the other until public preferences become more settled. This is a reason why the Defense of Marriage Act (1996) and the proposed Federal Marriage Amendment (2003-04) were unwise, for they sought, prematurely, to declare victory for supporters of traditional marriage before public opinion had settled firmly in their favor. It is also a reason why the Supreme Court ought not declare a national constitutional right supporting same-sex marriage, for that would, prematurely, declare victory for supporters of marriage equality before public opinion has settled in their favor.

…the legal case for such a constitutional right is an excellent one. But the legal case for a constitutional right for different-race couples to marry was an excellent one in the wake of Brown v. Board of Education (1954)—but it took the Supreme Court half a generation to recognize such a right, in Loving v. Virginia (1967). In 1954, three-fifths of the states barred such marriages; by 1967, only southern states did so. Only after the stakes were lowered was it politically prudent for the Court to announce a national resolution.

- Yale Law professor, William Eskridge, explaining why the Supreme Court should “tread lightly if it considers the merits of a constitutional right to same sex marriage.”

By:           Daniel Villarreal
On:           Aug 16, 2011
Tagged: , , , ,

  • 43 Comments
    • Scott Rose
      Scott Rose

      Didn’t Maggie Gallagher go to Yale? And isn’t Michele Bachmann’s brother, Dr. Paul Amble a Yale psychiatrist, who won’t tell the public whether he supports equality, or even say yes or no to the allegations that he engages in “reparative therapy”? The Supreme Court would not, as the quote above has it, “declare a national constitutional right supporting same sex marriage.” It is rather that a challenge to the constitutionality of a ban on same sex marriage would come before the court, and the court would decide whether the ban was constitutional. If the court decided that the ban was not constitutional, the ban would be struck down; the constitution would stay the same. Only people who at root are against same sex marriage would define that as “declaring a national constitutional right.” Get somebody besides a Yale professor to comment on this, and let’s see what happens. Yale fooey Maggie Gallagher.

      Aug 16, 2011 at 10:23 am · @ReplyReply to this comment ·
    • Mike in Asheville
      Mike in Asheville

      Doing what is right is rarely what is popular.

      Fortunately, grass-root activism does not feign in the face of allowing a wrong to continue. Prof. Yale neglects to make mention of the ills caused to the oppressed of 50 years of government imposed segregation and discrimination. What a different world we would be living in today had the SCOTUS taken the principled action of imposing the due requirements of the 14th Amendment back when the Plessy v. Ferguson was heard in the 1890s.

      Is Prof. Yale truly suggesting that the mass of racial victims of discrimination at the hands of segregation and the false notion that separate can be equal should have continued bearing the burden of government imposed segregation and discrimination because the oppressors didn’t want to change their evil ways?

      Is Prof. Yale arguing that gays and lesbians should simply continue to accept second class citizenship because there are too many freaked-out-by-fear homophobes who just can’t get the notion that equality means equality for g+l too?

      Fuck that. And Prof. Yale, grow some balls.

      Aug 16, 2011 at 10:24 am · @ReplyReply to this comment ·
    • Cam
      Cam

      So when you cut through all the bullshit he needs to insert to keep up his “I work at Yale and I publish” goal, what he basically is saying is that the Supreme Court should be only bound by public opinion and not the Constitution or civil rights when it comes to making it’s decisions.

      I would like to point out to this professor that the founders set up our govt. to avoid that EXACT THING in the courts.

      The House, with their two year election cycle were supposed to be VERY close to the electorate. The Senate with their six year cycle were supposed to be somewhat distanced from the electorate in order to make tough decisions but still answerable. And the court, with their lifetime appointments were not supposed to base decisions on popular opinion, but on their interpretation.

      I’m hoping that this guy isn’t a professor of Constitutional Law, if he is, then perhaps US News and World Report should rethink their ranking of Yale Law if this is the type of instruction the students are getting.

      Aug 16, 2011 at 10:24 am · @ReplyReply to this comment ·
    • Fodolodo
      Fodolodo

      I was very disappointed in this Eskridge piece.

      First, the article seems remarkably comfortable recommending that the judiciary decline to vindicate what the article acknowledges as the constitutional rights of all the same-sex couples who don’t live in states with same-sex marriage, merely because that vindication would be unpopular. (“Yes, constitutionally and morally, you have the same right to marry as different-sex couples, but it would be too politically inconvenient for us to recognize that at the moment”?)

      Second, the article doesn’t recognize that same-sex marriage is fundamentally different from abortion in that, by every indication, public opinion on same-sex marriage is moving swiftly in one direction; it more resembles interracial marriage, where widespread prejudice gradually faded, than abortion, where a deeply controversial moral issue not reducible to prejudice on either side has lingered on for decades and is likely to do so for the foreseeable future. A Supreme Court opinion legalizing same-sex marriage nationwide would get a torrent of criticism at first, but would eventually (and not all that long from now) gain general public acceptance. Has William Eskridge noticed that it’s 2011?

      It’s probably unfair of me, but I find it especially infuriating that this argument is being made by a prominent law professor whose past scholarship made important contributions to the constitutional and policy case for same-sex marriage. Arguments like this one are weapons in the arsenal of the opposition, especially when made by people with a long history of gay rights advocacy.

      Aug 16, 2011 at 10:30 am · @ReplyReply to this comment ·
    • timncguy
      timncguy

      Eskridge proves that you can always find a statistic to use to prove the point you want to make. In this case the professor cites the “number of states that bar interracial marriage” as his statistic of choice. He points out that the number of states with these bars was dramatically lower when the Supreme Court made a decision.

      Of course, you could also look at general public opinion on the issue. And, in the case of interracial marriage, public opinion was AGAINST it when the Supreme Court made their decision despite the lower number of states where it was legally banned.

      Contract that to today’s statistics showing that public opinion now APPROVES of marriage equality. So, by that statistic, it is a good time for the Supreme Court to make a decision in favor of equality.

      Aug 16, 2011 at 10:35 am · @ReplyReply to this comment ·
    • Pete n SFO
      Pete n SFO

      This man is just another a middle-class, white guy, who has likely lived basically in privilege his whole life. Yes, he’s gay, but so what?

      When all of those ‘controversial’ issues are laid out, is the lesson that people can’t handle change… or should it be, how dimwitted we are that obvious, overdue, changes ruffle feathers at all?

      I promise you, even today, there are probably people that believe slavery has its purpose, as does apartheid, keeping races separate in marriage, & that a woman shouldn’t be able to control her own body. So, why are we not asking why America seems unable to learn lessons, even from itself? Explain that to the gay family & their children brave enough to live their lives outside of the relative comfort afforded by living in cities, but denied protection under law daily.

      Please don’t enable the SCOTUS by showing any support for this position. Let’s re-frame the question. It is not, does America support Gay Marriage, but rather do Americans support their own Constitution, which guarantees Equality under Law.

      Aug 16, 2011 at 10:36 am · @ReplyReply to this comment ·
    • Pete n SFO
      Pete n SFO

      btw… Ruth Bader Ginsberg has floated basically the same position as Prof Eskringe. fyi.

      Aug 16, 2011 at 10:41 am · @ReplyReply to this comment ·
    • K in VA
      K in VA

      Something like 70% of the country still thought interracial marriage was a bad thing in 1967 when the Supreme Court issued their Loving decision. Had the Court waited for national consensus, the Mildreds and Richards in some states would still be waiting.

      Conversely, multiple reliable polls show national support for same-sex marriage. So what are we waiting for? Are we expected to wait until Maggie volunteers to be flower girl for us all?

      Methinks Eskridge hasn’t read a newspaper or looked at a poll since about 1996.

      Aug 16, 2011 at 10:42 am · @ReplyReply to this comment ·
    • Abirdwillingtobeitself
      Abirdwillingtobeitself

      @Cam: An Ivy League education is generally overrated, since getting it is about who you know. These days, everyone is going to college anyway, which has tarnished the value of any sort of college education. The worst thing about the number of people who go to college is that stupid people begin to conflate a good education with a high IQ.

      Aug 16, 2011 at 10:47 am · @ReplyReply to this comment ·
    • ewe
      ewe

      Even the Bummer has yet to evolve. He has said as much. What can be expected from everyone else when the leader of this country is waffling? The Bummer is also an ivy leauger. Surprise surprise.

      Aug 16, 2011 at 11:16 am · @ReplyReply to this comment ·
    • Bunny Snuggles
      Bunny Snuggles

      This is High School thinking. The US Bill of Rights and the US Constitution be damned according to Eskridge’s timid legal rationalizations. If you are popular you get equal rights, if not…well, just wait until you are. Such mega-bullshit convolutions from one of our very own Uncle Toms!

      The US Supreme Court makes VERY unpopular decisions all of the time. The recent “Citizens United” case (allowing corporations to spend unlimited funds in order to buy elections) would not pass a “people’s referendum”. The article in question is garbage. Besides, the most opposition the GLBT community has comes from haters in the geriatric demographic. They’ll be deceased soon enough…and good riddance. Let them spend the last few years of their hateful lives wallowing in both their own bigotry and excrement in nursing homes while we enjoy our freedom. Our victory in the Supreme Court would be a nice Bon Voyage gift to send them on their way to Hell.

      Aug 16, 2011 at 11:19 am · @ReplyReply to this comment ·
    • jcknck
      jcknck

      This guy makes a very intelligent point. He has an open mind, while most of the country, both for and against marriage equality, are too close-minded to see where other people are coming from. It doesn’t help our cause to put up these barriers and create these divisions. This is what he is saying. We need to reach a substantial majority before we can vilify our enemies.

      Aug 16, 2011 at 11:22 am · @ReplyReply to this comment ·
    • Mike in Asheville
      Mike in Asheville

      @timncguy: Indeed: “There are lies, damn lies, and statistics!” President Harry Truman.

      Aug 16, 2011 at 11:23 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      Every member of the current SCOTUS is pulled from the federal bench, and every one obtained their law degrees from either Yale or Harvard. You could hardly find a group of nine people with a more homogenous background and more shallow work experience. This has never happened before.

      And this is why — collectively — the current court sucks soooo much.

      I ask my little niece to give every person an equal number of cookies, she can do it. She doesn’t decide which person merits less cookie, or give more cookie to the people who are most popular. Equal isn’t a difficult concept for a five-year-old.

      Terribly complicated for a Yale law professor, evidently.

      Aug 16, 2011 at 11:27 am · @ReplyReply to this comment ·
    • Little Kiwi
      Little Kiwi

      why can’t America look to it’s not-so-distant past and realize that it’s almost perpetually behind the times, socially?

      Slow to give up slavery. Slow to end segregation. Slow to end interracial marriage laws. and on and on.

      The USA is currently two decades behind Canada, in terms of LGBT Equality in policy and law. That’s unacceptable.

      The US should be utterly embarrassed.

      Aug 16, 2011 at 11:28 am · @ReplyReply to this comment ·
    • o
      o

      The fact is that the Court has never been about making the “politically prudent” decision, so I find this Yale professor’s reasoning species, and I have nothing more than a regionally accredited college-level education. The Supreme Court was created to counterbalance the other two branches of government, which were ultimately controlled by the people because the politicians in the other branches needed votes. This is what was written about it in the Federalist Papers, and that’s how the institution has always functioned. Why do you think justices are appointed (not elected), and appointed for life?

      Aug 16, 2011 at 11:37 am · @ReplyReply to this comment ·
    • o
      o

      Too bad spell check doesn’t pick up errors like species, when I meant specious.

      Aug 16, 2011 at 11:39 am · @ReplyReply to this comment ·
    • Henry
      Henry

      @o: You got that information about the Supreme Court from college, right? That’s all college gives anyone, information. And contacts. It doesn’t teach you how to think, because that can’t be taught. Just ask Eskridge.

      Aug 16, 2011 at 11:44 am · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      @jcknck: Re: “an intelligent point”

      I reluctantly have to agree. Much as I think justice, rights and equality matter more than public opinion, those things don’t exist in a vacuum, and right or wrong, they are to some extent at the mercy of public opinion.

      Consider: If the court acts in a way that provokes the public to take action that effectively vetoes the court’s ruling, what have we really gained? Witness the passage of multiple amendments at the state level to define marriage in the wake of the Hawaii marriage suit and the initial fight over marriage in Vermont that birthed the civil unions compromise. One could argue that those amendments are the end result of pressing the issue before public opinion had caught up.

      Do we want to risk a Federal Marriage Amendment by putting this before the court too soon? Of course, the deeper question is, how do we know what “too soon” is? I actually believe it’s too late for a Federal Marriage Amendment to happen as a response to the Supreme Court ruling in our favor. But I’d hate to be proven wrong on that score.

      The question then becomes, would the court rule in our favor? I’m inclined to say ‘no’. Even though public opinion is turning our way, it matters that we have a majority of the states still banning legal marriage recognition via amendments to their constitutions or by statute. It matters a great deal; this is a concrete way for the court to measure where public opinion stands. The court is known to be skittish about acting on what it considers social issues, and will not take an action that it deems too disruptive – even if it’s the right thing to do in the name of protecting rights, administering justice and providing equality.

      Make no mistake: I firmly believe marriage equality is the right thing for the court to do. I am simply concerned about the timing. It’s very easy to question “if not now, then when?” What constitutes the ‘right’ time? I think that time will come when we have finally repealed the majority of the states’ marriage amendments. We have a long way to go, indeed.

      This is why I’m concerned about the Prop 8 case. I think it’s a huge risk, and one that I fear will be rewarded by the court ruling against, setting a precedent that will be harder to overcome and thus actually serve to delay the achievement of equality.

      I hope I’m wrong, but I very much fear I am not.

      Aug 16, 2011 at 11:53 am · @ReplyReply to this comment ·
    • Daez
      Daez

      @Henry: No, but you would mistaken if you didn’t believe that an infusion of knowledge and information doesn’t make it easier for people to think rationally about topics.

      The break down currently is this (and pretty much always ends up being this). 4 liberals 4 conservatives 1 moderate. So, if marriage came up at all it would almost absolutely be 4 yes 4 no and one maybe. It all depends on how the maybe rules at the time.

      Just because the court isn’t supposed to be political doesn’t mean it isn’t. Just because judges serve for life doesn’t mean they aren’t appointed through the process of politics.

      Aug 16, 2011 at 12:00 pm · @ReplyReply to this comment ·
    • Henry
      Henry

      @Daez: An “infusion” of knowledge and information? Knowledge means having information… stupid.

      Aug 16, 2011 at 12:06 pm · @ReplyReply to this comment ·
    • christopher di spirito
      christopher di spirito

      This sentence is the gist of the piece:

      Finally, the briefs filed by the Proposition 8 proponents have been strikingly unable to tie the exclusion of same-sex couples to any neutral state interest.

      So the conclusion is, denying same-sex couple access to marriage is unconstitutional and serves no purpose other than to engage in legal discrimination.

      Aug 16, 2011 at 12:11 pm · @ReplyReply to this comment ·
    • o
      o

      Studying something like logic at college is very useful for learning how to keep minorities in their place. You need to study the logical rules in a formal setting to know how to mislead people. The reason is because everyone understands the logical rules, without study, and they only forget what they know when someone with a degree says they’re wrong. Daez’s comment about how the law is “supposed to work,” which is meant to sow confusion, is a good illustration of how this process works.

      Aug 16, 2011 at 12:13 pm · @ReplyReply to this comment ·
    • Fodolodo
      Fodolodo

      @Elloreigh: There’s a very big difference between “We won’t get a big win from the Supreme Court, because the Court won’t want to go against the vast majority of states” (which is probably true) and “We shouldn’t get a big win from the Supreme Court, because the Court should wait until there is a clear national consensus for same-sex marriage” (which is what Eskridge is saying.)

      As for the Federal Marriage Amendment, it wouldn’t be ratified by three-fourths of the states even in the aftermath of a ruling legalizing same-sex marriage nationwide. It probably wouldn’t even get through Congress. Passing a constitutional amendment is very difficult.

      Aug 16, 2011 at 12:18 pm · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      @Fodolodo: Agreed that there’s a difference between ‘would not’ and ‘should not’. I think it’s important to look into why Eskridge is saying ‘should not’, rather than having a knee-jerk reaction that labels it as mere homophobia (as a few people have done in commenting on the article).

      Eskridge spells out the reason for ‘should not’ – that the public hasn’t arrived there yet with regard to full marriage equality. I don’t read this as meaning that he believes public opinion matters more than justice & equality. I read it as saying that there is a danger in moving too far, too fast. That danger goes beyond mere backlash – he’s talking about a threat to “the viability of our [legal] system”, and gives examples of similar polarizing issues. Does he overstate the danger? Perhaps. Then again, we did fight a civil war at one point in our history (though there’s more to that conflict than just divided opinion about slavery).

      This is where I disagree with Eskridge – I don’t think the nation is going to split apart or that the system will lose its viability if the Supreme Court rules favorably in the Prop 8 case. If Roe v. Wade couldn’t accomplish that, neither will Perry v. Schwarzenegger. I would argue that the marriage issue is less divisive than the abortion issue at this point. There is ongoing movement on the marriage issue. I see none taking place on the issue of abortion. Bottom line: It’s going to take more than a court ruling on marriage to push this country over the edge. I don’t think it’s the proverbial last straw that those blustering against it would like to scare us into believing.

      Aug 16, 2011 at 12:58 pm · @ReplyReply to this comment ·
    • Brian
      Brian

      First off, William Eskridge isn’t just a random law professor. He is a well-respected legal thinker and literally wrote the book on LGBT rights; his Sexual Orientation and the Law textbook is one of the most commonly used books in law school classes on LGBT issues. He has contributed more to the LGBT movement than a bunch of bloggers, much less commenters on blogs.
      Second, Prof. Eskridge raises an issue that has been discussed at length since the Court’s decision in Roe v. Wade. Most scholars believe that the Supreme Court short circuited an evolving consensus on abortion rights, fired up the anti-choice movement and created the politicization of the federal judiciary and various abortion litmus tests that continue 40 years later. Abortion rights are no more settled now than they were in 1973. The justices know this. They now that the institutional power and prestige of the Court has suffered as a result.
      Compare that to sodomy law reform. In 1986 the Supreme Court declined to extend the right to privacy to cover gay sex in the case Bowers v. Hardwick. At that time 24 states and the District of Columbia still sodomy laws on the books. (As recently as 1961 all 50 states had sodomy laws.) By the time Lawrence v. Texas was decided in 2003, overruling Bowers, the number was down to 13. In the intervening years several state legislatures repealed their statutes and several state supreme courts (including Montana, Georgia, Tennessee and Kentucky) invalidated the statutes under their state constitutions. There was an overwhelming consensus that sodomy laws should be abolished and the Supreme Court picked up on that and followed the states’ lead. There has not been the same criticism of the Supreme Court over the Lawrence decision that there has been for Roe v. Wade because the consensus had been reached.
      We need to let the same happen for marriage equality. The fact is on a state-by-state basis, we’re winning. Four states adopted civil unions this year and one state adopted marriage equality. When more states have adopted marriage rights, then the time will come for a Supreme Court case.

      Aug 16, 2011 at 12:58 pm · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      @Brian: Good points, Brian. Perhaps I was too extreme in my interpretation of what Eskridge was saying in my last post.

      Aug 16, 2011 at 1:03 pm · @ReplyReply to this comment ·
    • Fodolodo
      Fodolodo

      @Elloreigh: I certainly don’t think William Eskridge is a homophobe. By the rest of your post, I think we’re pretty much in agreement.

      @Brian: Not every case is like Roe v. Wade. It’s been almost forty years since Roe v. Wade, and the abortion issue is still intensely controversial. Does anyone think the same will be true of a ruling striking down same-sex marriage bans nationwide? In the persistence of opposition, the intensity of opposition, and the difficulty of the issue itself, abortion is not comparable to same-sex marriage.

      Aug 16, 2011 at 1:33 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      @jcknck: said…

      “This guy makes a very intelligent point. He has an open mind, while most of the country, both for and against marriage equality, are too close-minded to see where other people are coming from. It doesn’t help our cause to put up these barriers and create these divisions. This is what he is saying.”
      _________________________________-

      1. No, actually his point isn’t intelligent. His point is that the court should only rule based on popular consensus, which is EXACTLY the opposite of why it was set up and why the founders gave Supreme Court justices lifetime appointments. So this guy didn’t just miss the mark, he is advocating for the EXACT THING THE FOUNDERS SET UP THE COURT NOT TO DO.

      2. What he feels will help or hurt our cause is irrelevant. Did the entire nation become colorblind and welcoming to black people when the schools were integrated and when Loving v. VA. was decided? No. But does that mean that the court should have waited? Until when?

      In the year 2000 around 40% of Alabama still wanted interracial marriage illegal. It is idiotic to say that the court should never decide an issue until there is a popular consensus. If they were going to do that, they would be no different than Congress. And that is not why they are there.

      Do they not teach civics or U.S. history in schools anymore???

      Aug 16, 2011 at 4:54 pm · @ReplyReply to this comment ·
    • Steve
      Steve

      @Cam wrote, “Do they not teach civics or U.S. history in schools anymore???”

      No, they don’t. Civics and History are not included in the testing mandated by the “No Child Left Behind”. Therefore, those subjects are not taught.

      Many people think they know what the Constitution says, but have never actually read it. Most who have read the Constitution, have never read a Supreme Court decision.

      Aug 16, 2011 at 6:33 pm · @ReplyReply to this comment ·
    • Mike in Asheville
      Mike in Asheville

      @Steve: Interesting analysis about all those so-called “real Americans” who, you and I know, have never bothered to read the Constitution.

      I would add to that: how about all those self-labeled “true believing Christians” none of whom, except for a tiny handful, have read the Bible, cover to cover.

      Aug 16, 2011 at 7:10 pm · @ReplyReply to this comment ·
    • Pete n SFO
      Pete n SFO

      @Brian: I just can’t place why your condescending contribution is so irritating… is it because you seem to be saying that without legal degrees ordinary folk are unable to understand a smarty like Eskringe? Or maybe because you happily type your derision for bloggers ON A BLOG, or maybe it’s the self-selecting nature of your arguments focusing on abortion (least relative to gays) instead of civil-rights equivalents (most relative to sexual orientation).

      To me, the internet allows the ability to see points of view that I might not ever otherwise have seen… unfortunately, your own is not among them. There’s no shortage of people that raise themselves up, by putting others down.

      To be critical of the opinions of this Professor, no matter what you think of him, is just fine. Not everyone has the luxury set of credentials that he does, that does not make others less qualified to know right from wrong. The professor ought to use his position to challenge the inadequacies of the current court system, not implicitly endorse its shortcomings.

      And not for nothing, when L v TX was decided, Scalia announced it as the beginning of the end. How right he was.

      Aug 16, 2011 at 8:18 pm · @ReplyReply to this comment ·
    • Jimmy
      Jimmy

      This is b.s. by this prof’s own figures. The “half a generation” as he describes the lapse between Brown v. Board and Loving v. Virginia was all of a mere 13 years!!

      Lawrence v. Texas was decided in 2003, so we are are due for a Supreme Court decision fully legalizing “the gay” by 2016!!

      But it will come in more drips and drabs even before that. In 2013, the Defense of Marriage Act will be histroy. By that time the Supreme Court will affirm rulings by the First, Second and Ninth Circuits declaring Sec. 1 and 3 of DOMA unconstitutional.

      Wait and see, professor.

      BTW, you picked up two free credit hours for reading this. Now go out and watch a movie with your b/f.

      Jimmy ;-)~

      Aug 16, 2011 at 9:10 pm · @ReplyReply to this comment ·
    • GayGOP
      GayGOP

      I must side with the Professor here, not because I don’t want marriage equality to reign in the land, but because, quite honestly, it could easily inspire backlash that would send the issue to the States regarding Amending the Federal Constitution. Until 13 States have gotten marriage equality, and public opinion in those states is FOR marriage equality, I have to want the Supreme Court to wait.

      Aug 16, 2011 at 10:00 pm · @ReplyReply to this comment ·
    • David Gervais
      David Gervais

      No. 28 · Fodolodo said to Brian, “It’s been almost forty years since Roe v. Wade, and the abortion issue is still intensely controversial. Does anyone think the same will be true of a ruling striking down same-sex marriage bans nationwide?”

      Around the world, once equality is established, most of the public comes to agree, or at least just lets it go. This has certainly been the case in Canada. Our current government is a kind of Republican Lite, and even they refuse to re-open an issue that is now settled.

      So, I think that once marriage equality is established, all but the most rabid religious nutbars will settle down. All the opponents who claimed their version of “the world will end”, etc. lose their legitimacy once the proof that they are wrong becomes self evident.

      Aug 16, 2011 at 10:54 pm · @ReplyReply to this comment ·
    • David Gervais
      David Gervais

      To GayGOP and others who say ‘wait’:

      To the rest of the world it seems the US has a strong, honest and legitimate judicial system.
      Especially at the Supreme Court, the rule of law is paramount. The decision written by Judge Walker is very solidly backed by law and SCOTUS precedent, including Brown v. Board and Loving v. Virginia which were decided on the basis of the constitution. Judge Walker seems to have written his decision with the Supreme court in mind. He has set up the legal battleground in such a way that his decision is irrefutable.

      The US was founded on high principles in the Declaration of Independence and codified in their Constitution. When the people stray from their principles and ideals, they have a strong court system to keep them on track and honest. For those playing along at home, the link to Judge Walker’s Prop. 8 decision is:
      http://www.ce9.uscourts.gov/prop8/FF_CL_Final.pdf

      It’s a quick and easy read, and I recommend it highly. For supplemental reading, I found the Wikipedia articles on the US Constitution very helpful.

      Aug 16, 2011 at 11:17 pm · @ReplyReply to this comment ·
    • tinkerbell
      tinkerbell

      1770s colonial America: Don’t protest the crown rule…give it a generation….

      Aug 17, 2011 at 12:26 am · @ReplyReply to this comment ·
    • David Gervais
      David Gervais

      Another version of the chart id at: It lists FRED Karger at the top.

      http://1.bp.blogspot.com/-VEiD8mVgV9M/TklpEiFTNtI/AAAAAAABIXw/YdrWFVwivVY/s1600/Cand.%2BPositions%2B15-Aug-2011.png

      Aug 17, 2011 at 1:14 am · @ReplyReply to this comment ·
    • Nice Sean (formerly Sean, and Sean from england.)
      Nice Sean (formerly Sean, and Sean from england.)

      I think he has a point, but the difference in this case is that the young are incredibly pro gay, it’s so much a part of young culture to accept gay people that this battle will be over in twenty years or so.
      The real fight is to help people now, the scotus could totally do this now, and the backlash would be terrible, but at least people wouldn’t suffer now, and it would probably encourage acceptance, or at least tolerance in most adults by virtue of allowing gay people to live their lives like straight people do, the real “gay agenda”.

      Aug 17, 2011 at 1:42 am · @ReplyReply to this comment ·
    • David Gervais
      David Gervais

      @Nice Sean- I agree with you, of course, except “the backlash would be terrible”.

      No it won’t. Every other country that has achieved equality has done so with very little fuss in the end.

      Aug 17, 2011 at 2:23 am · @ReplyReply to this comment ·
    • Mike in Asheville
      Mike in Asheville

      @David Gervais: If only the idealism you cite were reality. President Lincoln long held the view that the Civil War and its terrible toll on the lives of all, Northerners and Southerners and the country’s political system, was God’s punishment for the betrayal of the Declaration’s inclusion of equality for all of God’s children.

      Aug 17, 2011 at 10:05 am · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      @David Gervais: The USA is not every other country.

      Aug 17, 2011 at 12:32 pm · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      @Cam: “His point is that the court should only rule based on popular consensus…”

      No, that wasn’t his point. His point was that certain issues so divide the public that ruling on them when no consensus exists has the potential to do real damage to the legal & political process. The court has no power of enforcement. If it’s authority becomes disrespected there’s very real potential that those on the losing side will mount a movement to curtail the court’s power (in fact, they already have), and if they succeed, they’ll hamstring THE institution that has helped move equality forward through its rulings, albeit at what sometimes feels like a glacial pace.

      “Did the entire nation become colorblind and welcoming to black people when the schools were integrated and when Loving v. VA. was decided? No. But does that mean that the court should have waited? Until when?”

      You’re missing the point. The court DID wait when it came to racial equality. It took a very long time for them to get to Brown v. Board of Education. As for “until when”, a few have us have already answered that question. It certainly shouldn’t be based on a polling of public opinion. The Court, being an institution concerned with the law, will look to the same to measure the public’s opinion. When Loving was decided, only a minority of states still had miscegenation laws. At present, a majority of states still ban the legal recognition of same-sex couple’s marriages by amendment or by statute.

      The Court does not like to get involved in social issues, preferring to leave those to the legislature. We have to convince the court that the status of our marriages constitutes a legal question for them to answer. The Court doesn’t take every case appealed to it. There is no guarantee that they’ll even hear the Prop 8 case if it reaches them.

      Aug 17, 2011 at 1:12 pm · @ReplyReply to this comment ·

    Add your Comment

    Queerty now requires you to log in to comment

    Please log in to add your comment.

    Need an account? Register It's free and easy.

  • POPULAR ON QUEERTY

    FOLLOW US
     



    GET QUEERTY'S DAILY NEWSLETTER


    FROM AROUND THE WEB

    Copyright 2014 Queerty, Inc.
    Follow Queerty at Queerty.com, twitter.com/queerty and facebook.com/queerty.