Richard Just On The Gay Marriage Ruling

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POLITICS MAY 16, 2008

Richard Just On The Gay Marriage Ruling

Many are celebrating yesterday's decision by the California Supreme Court to legalize gay marriage in the state; others are bracing for a referendum battle; and some, cooped up in campaign offices, are trying to figure out how best to play it. So, in an effort to see the ruling from as many perspectives as possible, we've enlisted a few friends of the magazine to offer their thoughts. Here's Richard Just, deputy editor ofThe New Republic. 

I have to respectfully disagree with my colleague Jeff Rosen's take on the California gay marriage decision. First, his comparison of the California decision to Dred Scott strikes me as exactly backwards. Jeff seems to imply that the problem with Dred Scott was that it took a stand on a politically controversial question. But the problem wasn't that it took a stand; the problem was that it took the wrong stand. Dred Scott enshrined into law a political consensus that the country—not to mention history as a whole—was rapidly moving away from. (By the time Dred Scott was decided, in 1857, much of Europe had already abolished slavery.) The California decision, by contrast, enshrines into law a political consensus that history, the country, and especially liberal states like California are rapidly moving towards. (Everyone who has ever looked at an opinion poll on gay issues that disaggregates the numbers by age understands that this is the case.) That's a pretty key difference.

At worst, the California court is guilty of overanticipating that consensus—of forcing the public to a consensus before it is ready. The risk of doing this is that, by enraging those who believe that they have been denied their day at the ballot box by an imperial judiciary, the Court could end up sabotaging (as opposed to solidifying) the emerging public consensus. But I doubt it. For one thing, California's gay marriage opponents have hardly been denied their day at the ballot box, since state legislators have twice passed bills legalizing gay marriage—and those legislators are directly accountable to voters. For another, California's November ballot will likely offer gay marriage opponents a chance to overturn the court's decision. If gay marriage holds up, no one is going to be able to argue that the public or their elected representatives were denied the chance to weigh in.

What's more, as EJ Graff predicted in a wonderful piece she wrote for TNR around the time that Massachusetts gay couples began marrying, state court decisions that permit gay marriage are unlikely to spark a backlash within those states; in fact, they are likely to do the opposite--they are likely to solidify the consensus in favor of gay marriage. That's because gay marriage is much more threatening in theory than in practice. Conservative arguments against gay marriage all rest on dire predictions about how it will tear apart the country's social fabric. Once gay marriage is a reality and those predictions don't come true, the arguments against gay marriage start to look silly at best, cruel at worst. EJ's predictions were vindicated in Massachusetts. In February 2004, according to The Boston Globe, a majority of residents (53 percent) opposed gay marriage; by March 2005, just ten months after gay marriages began taking place, a majority (56 percent) supported them. Why did so many people change their minds once gay marriage was a reality? I'm guessing many of them went through the same evolution as the Massachusetts legislator who explained why he switched sides on the issue in the years after the state court made it legal: "I couldn't take away the happiness those people have been able to enjoy."

Jeff's argument suffers from another problem. He criticizes California's court for assuming that homosexuality is immutable, and describes the research surrounding the issue as "contested science." This simply isn't true. There is, to be sure, plenty of contested science surrounding the question of why people are gay. What is the role of genetic factors? How do they work? Do genetic factors interact with environmental ones, and, if so, how? Is the process the same for gay men and lesbians, or different? How does bisexuality fit into the picture? And so on. What is not contested at this point—except by religious fanatics and bigots—is whether gay men and lesbians can change their sexual orientation. Yes, there are some people who persist in believing it. But there is also a swath of the population that believes in UFOs. I would hope our legal system would take neither view seriously.

Last point: What happened yesterday in California was, first and foremost, a wonderful moment. When I saw the news, my heart leapt, and I was not alone. Progress does not always happen perfectly in a democracy. Sometimes it happens at the behest of courts, sometimes at the initiative of legislators, sometimes thanks to the work of governors or presidents or even faceless bureaucrats. The point is, if we demand that progress only happen in certain ways, then we set ourselves up for a situation in which progress becomes impossible. I concede that there are sometimes costs when judges impose progress; and, though I am not a legal scholar, I do think that Jeff's philosophy of liberal judicial minimalism carries a lot of intellectual force. At the same time, against the undeniable appeals of this philosophy, you have to balance another concern: the very real aspirations of millions of gays and lesbians to live their lives fully as first-class citizens—not in some theoretical, distant day to come, when the maddeningly slow work of legislators and governors finally delivers the outcome via means that we might regard as ever so slightly more democratic, but now. What happened in California yesterday was that judges played a role in nudging forward a day that was going to come anyway. The only difference is that now it comes sooner. How can this not be something to celebrate?

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posted in: politics, europe, california, massachusetts, california supreme court, jeff rosen, richard just

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