RSS Feed MenuYesterday, the New York State Senate crushed a bill that would have allowed gay couples to get married by a margin of 38-24. While righties everywhere are probably doing back flips this morning and proclaiming that the people have spoken, the decision is not just morally wrong, it is also unconstitutional and bad for the future of the Republican Party.
As women, blacks, the handicapped, and many others who have been deprived of equal treatment in the past can attest, getting society to recognize the errors of the status quo is a long, hard struggle which continues to this day. But if history shows one thing, it is that these groups will prevail. The question is not if… but when… and how.
In every one of these fights, conservatives have been on the wrong side of history. Our natural instinct to fight against any radical change in the makeup of society can, and has blinded us to real injustices. The positions some of those we call our own have taken on these issues are quite simply indefensible. Today, hardline conservatives are dug in opposing yet another inevitable development: gay people will one day be able to wed in the eyes of the law. Victories like the one earned by conservatives in New York yesterday do little but delay the inevitable and give Democrats more ammunition to use as evidence that the Republican party is an intolerant, ignorant group of belligerent dinosaurs.
Ironically, one of our own might save us before it is too late through the very process that we (and he) so very deplore: “judicial activism.” Ted Olson and David Boies have joined forces to appeal the constitutionality of California’s ban on gay marriage. The two men, who faced off in Bush vs. Gore, are quite possibly the best two constitutional lawyers in the United States, and together they represent a formidable legal force to be reckoned with. If they were to succeed in showing the California ban to be what it is, an unconstitutional law that is, in Olson’s words, “utterly without justification” and that brands gays and lesbians as “second-class and unworthy” in the eyes of the law, Republicans will owe the two a debt of gratitude for saving the party from twenty years of supporting a position that 20 years from now men and women will view as utterly abominable. Not only will they save us from the eyes of history, they will save us from the electoral losses that the public’s general condemnation of the position will turn into at some point.
If you care about electoral victories, cheer for Ted Olson. You will thank him later if he wins.
sinz54 // Dec 6, 2009 at 8:23 pm
SpartacusIsNotDead: If every court ruling that overturns a legislative act constitutes “judicial activism” and, therefore, should not occur, then the court is unnecessary, which obviously was not the view of the drafters of the Constitution.
The Framers of the Constitution weren’t all advocates of judicial review. Some states supported the idea; others did not. The Constitution does NOT specify that the Supreme Court has the power of judicial review.
Judicial review–that the Supreme Court could strike down a law as “unconstitutional”–was established in an early landmark SC case, Marbury vs. Madison (1803).
SpartacusIsNotDead // Dec 7, 2009 at 1:01 am
Carney,
The implication of some of your earlier posts was that a ruling in favor of Boies/Olsen would be an act of judicial activism. If that is not your view, then I apologize for misstating your posts. However, if that is your view, could you please elaborate on why this would be a case of judicial activism?
SpartacusIsNotDead // Dec 7, 2009 at 1:04 am
Carney wrote: “None of the men who wrote and ratified the equal protection clause of the 14th amendment meant that by it, and their opinion is the ONLY one that matters.”
The framers’ unstated intent is relevant only if their written words are ambiguous. The words of the 14th amendment are not, however, ambiguous.
And just out of curiosity, what is the evidence that the framers did not intend for gays to have equal marriage rights?
Carney // Dec 7, 2009 at 1:30 pm
SpartacusIsNotDead, I did and do contend that a court ruling in favor of Boies and Olsen’s specious, illogical, and historically unfounded claim that any part of the Constitution forces either the federal government and/or the states to implement “gay marriage”.
As for evidence, in the first place, since it is Boies and Olsen making the claim that the Constitution does so require, and to force such a sweeping and radical change, the onus is on them to prove it. The burden of proof is on those who seek change or make startlingly novel claims.
However to take your bait, anyone with an inkling of historical knowledge about culture, language, and the law at the time of ratification of the original Constitution or any of the supposedly relevant amendments would honestly have to concede that the very idea of “gay marriage” would have been not only an unthinkably repulsive notion on a policy basis at the time, but as far as it is possible to imagine for an intended and agreed-upon meaning of any ratified text. Claiming that anything else is the case is prima facie evidence of gross ignorance or mendacity.
Again, all this is separate from the merits or lack thereof of gay marriage as a lifestyle or a public policy. One can be an honest social / cultural liberal who practices or strongly believes in equal legal recognition of “gay marriage”, while still recognizing that nothing in the Constitution mandates one’s personal public policy preference on this issue to be enacted.
SpartacusIsNotDead // Dec 8, 2009 at 2:20 am
Carney,
When asked for evidence that the framers did not intend for the 14th to be applied to same-sex marriage, you implied that their failure, inability at that time even, to contemplate same-sex marriage is evidence they did not intend to apply the 14th to it. This is a non sequitur. The failure to foresee a specific circumstance when enacting a rule does not mean the rule was not intended be applied when the unforeseen circumstance arises.
If the framers had intended to limit the 14th’s application only to those circumstances they contemplated at the time, they more likely would have used more specific language to identify and address those specific circumstances. The framers did not, however, intend for the 14th to be applied only to those circumstances they contemplated and there is no evidence they intended such. If contemplation by the framers/Congress/States of all the ways in which the 14th could be applied was a prerequisite before applying it, then there would be very, very few circumstances today in which the 14th could be applied.
Moreover, their intent is relevant only when their words are ambiguous. The words of the 14th are not ambiguous.
Lastly, you did not explain why a favorable ruling for Boies/Olsen would constitute judicial activism, and I’m still unclear on why you think the court would have no authority to rule that way. Courts routinely overturn laws that treat similarly situated people differently. There is no more of a basis for believing same-sex couples should be given less protection under the 14th than those who sought to marry outside their race.