Friday, May 16, 2008

Equal rights

Fred Clark, at Slacktivist, comments on the likely response to the California ruling in favor of gay marriage:

We'll also hear a great deal, I suppose, about "activist judges." If the people want rights to apply equally to everybody, this argument goes, then they should pass laws that say so, not simply rely on a constitution that says so.

Or Antonin Scalia might say, if we'd intended the Constitution to mean what it says, we'd have done what it says.

5 comments:

James Hanley said...

"The California Supreme Court has engaged in the worst kind of judicial activism today, abandoning its role as an objective interpreter of the law and instead legislating from the bench," said Matt Barber, policy director for cultural issues for the group Concerned Women for America,"

Yep, there's the catchphrase.

Scott Hanley said...

Here's an example of the kind of objectivity one conservative expects from the bench:

"Judge John E. Jones III could still be Chairman of the Pennsylvania Liquor Control Board if millions of evangelical Christians had not pulled the lever for George W. Bush in 2000. Yet this federal judge, who owes his position entirely to those voters and the Bush who appointed him, stuck the knife in the backs of those who brought him to the dance in Kitzmiller v. Dover Area School District."
Phylis Schlafly, 2006

Heather said...

It's interesting that even though I've read a lot of (generally) smart commentary on this issue on blogs run by smart folks, I haven't run across any comments about the changing emphasis of marriage in the last century or so -- the relatively recent re-invention of an ideal marriage as a "love match," rather than an arrangement mainly for purposes of property ownership and children's legitimacy. Not being a historian, I'm not really sure if my notion of "a century or so" is right, but I know that even though there's been a Western notion of romantic love at least since the Middle Ages, it had very little to do with marriage until sometime around the turn of the twentieth century, or the nineteenth century at the earliest. Once you've redefined marriage as being a love-partnership, then the grounds for restricting it to heterosexuals only become extremely shaky and basically untenable. I think part of what we're seeing here is the modern notion of romantic love trumping the older marriage-as-basic-social-structure but-you-don't-have-to-enjoy-yours, you-just-do-it-because-that's-what-people-do perspective.

Heather said...

Not that the notion of romantic love doesn't have a lot of its own problems, of course. But the idea of individual choice -- as opposed to one's responsibilities to society, or societal pressure in general -- is pretty strongly wrapped up with the whole romantic-love thing. I think romantic love sees the individual as the unit of society, as opposed to the tribe or clan and one's place within it. And that individualist perspective is a lot more closely aligned with modern Western attitudes, which is part of what makes me so amazed that there can still be so much popular anti-gay-marriage sentiment, and really makes me sure that the haters are on the losing side. Apparently ICK ICK TEH NASTY GAYZ is still able to trump the individual-choice argument in much of this country, but I have hope that in twenty-five years or so, it won't.

James Hanley said...

Heather,

Polling data shows a huge demographic shift in support for same-sex marriage. Old folks are overwhelmingly against it, my generation's split, and you young folks are, by a small margin, mostly for it. My guess is your generation's kids will be overwhelmingly supportive.