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The polarizing nature of judicial attempts to resolve social issues

Posted by B. Daniel Blatt at 5:27 pm - August 9, 2010.
Filed under: Constitutional Issues,Gay Marriage

There are a great variety of reasons why I believe legislatures, not courts, should resolve the issue of state recognition of gay marriage.  In a must-read piece in Reason, Steve Chapman addresses a number of those reasons, including this one:

If I favored a constitutional amendment banning gay marriage, I would have considered Wednesday a very good day. When a judge in California found that same-sex couples have a right to wed, he cemented the widespread notion that the courts are out of control and that the Constitution means whatever judges want it to mean. The verdict will go far to energize and expand opposition to gay rights, at a time when they were on the rise.

He well articulates my fears.  In speculating further that the Supreme Court might “rule in favor of same-sex marriage”, Chapman contends “it would be the most polarizing decision since Roe v. Wade in 1973, which we are still fighting about”

It would spark a furious backlash from Americans who, whatever their views about homosexuality, think such decisions belong with them and their elected representatives. It could even lead to a constitutional amendment overturning the decision.

A Supreme Court attempt to resolve the issue will do anything but.  And could further polarize the nation on gay issues.

That said, in commenting on Chapman’s piece, Jeff Goldstein writes (emphasis in original):

I suspect that most of those who oppose same-sex marriage on some ground or other would be perfectly resigned to the expansion of “marriage” should proponents win the argument in the court of public opinion, and pass legislation that mirrors such a popular victory. Change can take time, but when it comes, it comes with the sanction of the people — or better, the consent of the governed. What opponents of same-sex marriage object to is the courts’ insisting that the will of the electorate is less important than the opinion of a single judge who finds the majority voters “irrational” and bigoted.

Exactly.  And such change will be achieved by building a consensus — and thus much harder to undo. (more…)

Ted Olson’s Compelling Argument on Prop 8 Lawsuit

Folks, this is well worth watching.  I disagree with Ted Olson on this issue — but the man is one of the strongest conservative legal minds in our lifetime.  For example, if not for Ted Olson, no President George W. Bush — and Al Gore would have been in the White House on 9/11.

I still disagree with the pursuit of same-sex marriage via the courts.  But Olson is a great spokesman for the cause.  He has never lost a case he’s argued before the Supreme Court.

Ted Olson is showing more leadership on the issue than President Barack Hussein Obama.

-Bruce (GayPatriot)

On appreciating sex difference in the gay marriage debate

Posted by B. Daniel Blatt at 1:57 pm - August 9, 2010.
Filed under: Gay Marriage,Sex Difference

Perhaps the greatest reason for my ambivalence on gay marriage is that as my psychological and mythological studies have touched on anthropology, culture history and ritual, I have observed that all cultures understand the institution as a pairing of the opposites, uniting two individuals of different sexes.  Across cultures, the bride and groom have always played different roles in the ceremony.  (Arnold van Gennep offers a good introduction to this in the chapter, “Betrothal and Marriage” in his classic, The Rites of Passage.)

That said, I believe that if the state recognizes traditional marriages, it should also recognize same-sex unions, but am just not beholden to the term “marriage” to define them.

Given the vast array of evidence from a multiplicity of disciplines* on sex difference, I remain troubled by using the term “marriage equality” to define the movement for state recognition of same-sex marriage.  It suggests that sex differences are meaningless or, to borrow a term of a discredited theory, are mere “social constructs.”

In his thoughtful consideration of marriage and Judge Walker’s opinion in today’s New York Times, Ross Douthat contends that gay and straight unions are not the same:

But if we just accept this shift [i.e., changing views of marriage), we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

Emphasis added.

Simply put, two men or two women relate to each other in a different manner than do one man and one woman.  It’s folly to suggest that sexual difference is meaningless, particularly given the vast amount of scientific research on the topic these past forty years.

Like Douthat, we would be wise to recognize that same-sex unions differ from different-sex ones.  And without an “Equal Rights Amendment” in the constitution, states are free to consider that difference in determining how to recognize those unions.  Perhaps, like the legislators of Vermont and New Hampshire, they will choose to call those unions “marriage” which is and should be their prerogative. (more…)

On courts resolving controversial social issues

Posted by B. Daniel Blatt at 1:12 pm - August 9, 2010.
Filed under: Gay Marriage

One of the great things about our readers is that they often alert me to pieces I might otherwise have missed.  And in the past twenty-four hours, two readers, Leah and Eric, have respectively linked blog post and a New York Times Op-Ed which, in the wake of Judge Walker’s ruling, make fine contributions to the debate on gay marriage.

First, the blog post, then in a subsequent post I’ll address the editorial. In Schwarzenegger: I Lost the Gay Marriage Case. Now Go Implement the Winners’ Position as Quickly as Possible, Patterico faults Walker for trampling “all over the issue with elephant feet, willy-nilly issuing pronunciamientos regarding the proper role of tradition in deciding the legality of gay marriage, and couching these edicts as ‘factual findings’:

This sort of inquiry is far more suited to decision through the collective wisdom of millions of voters, debating a topic in public — rather than in a courtroom, litigated by two sets of parties who (as Schwarzenegger’s pronouncement highlights) may actually agree with each other. . . .

Judge Walker’s ruling was simply the negation of our vote, on a matter that should properly be decided by the People and not by an unelected judge (and no, it does not help that this particular unelected judge could benefit directly from his own ruling). . . .

A courtroom is not the place to resolve the question of whether society ought to accept gay marriage. A courtroom is not the place to decide whether thousands of years of tradition are to be given any weight in assessing whether a law abrogating that tradition is rational. I keep hearing that the proponents of Proposition 8 simply didn’t make their case in court. They should not have had to.

Emphasis added.

Like me, Patterico voted “No” on Prop 8.  And he’s not the only straight “No” voter I’ve heard from who’s unhappy with the decision.  Whether we like it or not, the issue of gay marriage is a controversial social issue.  State recognition of gay marriage represents a significant social change; it could very well be a good social change if those gay people who elect marriage as a means to define their relationships appreciate the meaning of the institution. (more…)

Republicans to Pick Up South Dakota House seat

Posted by B. Daniel Blatt at 12:25 pm - August 9, 2010.
Filed under: 2010 Elections

According to Jim Geraghty, Republican challenger Kristi Noem leads incumbent Democrat Rep. Stephanie Herseth-Sandlin by 9 points in the contest for South Dakota’s at-large House seat .

With with the Hil reporting that former funny man Al Franken called the Democrat “a great leader, and I really believe in her,” (as reported by the Rapid City Journal), looks like Herseth-Sandlin is going to have a tough time moving those numbers.  In 2008, in a Democratic year in a Democratic state, spending over $20 million dollars, Franken barely won a race for the U.S. Senate, running 12 points behind Obama.  The number of dead people voting exceeded Franken’s margin of victory.

Don’t think Franken’s support will help in a that where Obama capatured only 45% of the vote and where his popularity has fallen precipitously in the past two years.

That One Little Word, “Marriage”*

Posted by B. Daniel Blatt at 3:10 am - August 9, 2010.
Filed under: Gay Marriage,Sex Difference

Shortly after the Massachusetts Supreme Judicial Court handed down its Goodridge ruling mandating that the Bay State recognize same-sex marriages, I recall reading that just as more Americans came to support interracial marriage after the U.S. Supreme Court handed down it’s Loving decision in 1967, more would soon come to support same-sex marriage.

The polls don’t bear that assumption out, but they do, as I noticed last week show a dramatic uptick in support for same-sex civil unions.  About the time Goodridge was handed down, a slight plurality of Americans opposed same-sex civil unions.  Today, an overwhelming majority do — and that majority has been increasing (at least according to Pewe) at least since the Masachusetts decision.

Could it be that as the issue of same-sex marriage reached the national consciousness with the Massachusetts decision, people started thinking about the issue of same-sex relationships?  And once they started thinking about it, a number of people, once skeptical that same-sex relationships merited recognition, began to change their mind.  But, still they just didn’t wanted to call them marriages — which they wanted to reserve for different-sex couples.

This would explain the growing support for civil unions while support for same-sex marriage has effectively plateaued.

That decision thus changed the views of roughly one in eight Americans (a pretty substantial swing on a social issue in such a short time) on same-sex relationships.  Not what some activists who favor the judicial approach anticipated, but real progress nonetheless.

That’s my working hypothesis for now.  Much more on this in the coming week (hopefully).

* (more…)

In Memoriam Patricia Neal

Posted by B. Daniel Blatt at 2:18 am - August 9, 2010.
Filed under: Movies/Film & TV,Ronald Reagan,Strong Women

One of the truly great screen presences of the post-war era has passed.  Patricia Neal died of “lung cancer at 11 a.m. Sunday at her Martha’s Vineyard home, surrounded by her family“.  For someone who held her own against Gary Cooper in her second screen performance, which many of our reader’s will be delighted to know was the 1949 adaptation of Ayn Rand’s The Fountainhead, her list of film roles was remarkably small, but when she had a good script and worked with a good director, she soared.

In her third picture, she acted opposite the Gipper in the enjoyable, but, well, not readily memorable .  And she was brilliant in Hud, proving that not only could she hold the screen with a leading man of one generation (i.e., Cooper), but also with one of the next, Paul Newman. She both rivaled Newman for control of the screen and took home an Oscar for her performance — though perhaps not the night of the ceremony as she wasn’t present to receive her award.  She outshone Andy Griffith in Elia Kazan‘s A Face in the Crowd, perhaps her strongest performance, and all but carried The Day the Earth Stood Still.

Those movies will always define her for me, though she was magnificent in Robert Altman‘s Cookie’s Fortune in 1999.

Glenn Reynolds linked a piece from the Knoxville News offering more details about this great woman’s difficult life.  This great lady was born in the Marble City.

She may leave us with a small body of work, but it included many magnificent performances.

UPDATE:  Just learned that her film debut was opposite Ronald Reagan — in John Loves Mary.

I always found her somewhat gravelly, yet sweet voice, her most distinguishing characteristic — it really got your attention.

FROM the Fountainhead: