Democracy and minority rights

August 11, 2010

in Law, Politics, Rants, Writing

Judge Vaughn R. Walker’s ruling on California’s Proposition 8 is a good demonstration of how it is possible for the serious expert consideration of ethics and law to produce better policy-making than direct or representative democracy does:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Gay marriage is restricted around the world not for any rational reason whatsoever, but because large numbers of voters are prejudiced and uncomfortable with the idea.

While it is encouraging when gay marriage is legalized by legislation or popular referendum, I think it is ethically preferable when courts assert its necessity. That is because the power to determine the scope of minority rights should not rest with the will of the general public. Establishing minority rights on that basis is precarious and unjust. Rather, societies that aspire to be ethical have to acknowledge the fact that the majority cannot be allowed to strip minorities of fundamental rights, and that laws that do so ought to be struck down, regardless of how popular they are.

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{ 33 comments… read them below or add one }

R.K. August 11, 2010 at 8:56 am

I think it is ethically preferable when courts assert its necessity.

Though you can probably see why it fuels anti-judiciary sentiment among people who oppose gay marriage.

Milan August 11, 2010 at 9:45 am

That may be. Court order to de-segregate schools ‘fueled anti-judiciary sentiment’ among some people, but it was still a good thing to do.

One critical element of living in a constitutional democracy is the recognition that there are certain rights that trump the general will.

Milan August 11, 2010 at 9:46 am

Gay rights are really one of the easiest sort to grant, since it just involves removing a pointless prohibition.

Respecting a right to something positive – like food, housing, or education – is much more costly, since it involves expenditure of material resources.

R.K. August 11, 2010 at 11:14 am

California has no interest in discriminating against gay men and lesbians

What about avoiding the wrath of an Angry God?

. August 11, 2010 at 11:43 am

“Did Walker’s ruling veer into the risky activist territory of shaky judicial reasoning? Andrew Sullivan and Orin Kerr are duking it out over whether the appeals courts that are likely to hear the Proposition 8 case next—the U.S. Court of Appeals for the 9th Circuit and then the Supreme Court—will defer to Judge Walker’s factual findings. Kerr says no, because some of Walker’s fact-finding is really a series of judgment calls about difficult social predictions—will same-sex marriage in fact weaken traditional marriage? He also points out that an appeals court could find any old rational basis for upholding the law. Sullivan says, Wait a sec: The thrill of Walker’s opinion is how thoroughly he shredded the old assumption that “preserving the traditional institution of marriage” is a legitimate state interest, as Justice Sandra Day O’Connor put it in Lawrence v. Texas, the 2003 decision striking down state sodomy laws.* “Tradition alone, however, cannot form a rational basis for a law,” Walker wrote, citing a 1993 Supreme Court decision which said that the ” ‘ancient lineage’ of a classification does not make it rational.”

If you can’t base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can’t ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?”

Tristan August 11, 2010 at 12:50 pm

“it is possible for the serious expert consideration of ethics and law to produce better policy-making than direct or representative democracy does”

This is a straw man. I don’t know of any notion of democracy which leaves the decision of what rights minority groups should have to the will of the majority. The very notion of democracy (“Rule by the people”) presumes a notion of equality between people. In a democracy, the separation of the judiciary and the executive (and the military) is not optional.

Of course, by any serious notion of democracy, there are hardly any governments of this type. What we in fact have is many countries in which an aristocratic elite manufacture the consent of a mostly uninvolved mass in highly produced and costly elections. We equivocate popular elections with “democracy” – but there is actually no reason to think that electing “representatives” should lead to genuine representation. It can (and does) just as easily lead to empty jingoism and people being produced to care about nearly irrelevant issues (like gay marriage), rather than serious ones (like the negative effects of neoliberalism on the majority of people’s lives since the 1970s). This is a serious problem, predicted by Hegel, which in my understanding is only even addressed by socialists and anarchists:

“As for popular suffrage, it may be further remarked that especially in large states it leads inevitably to electoral indifference, since the casting of a single vote is of no significance where there is a multitude of electors. Even if a voting qualification is highly valued and esteemed by those who are entitled to it, they still do not enter the polling booth. Thus the result of an institution of this kind is more likely to be the opposite of what was intended; election actually falls into the power of a few, of a caucus, and so of the particular and contingent interest which is precisely what was to have been neutralised.”

Philosophy of Right, Paragraph 311, Remark

Antonia August 11, 2010 at 1:03 pm

With apologies as I haven’t time to proof read this last version.

Some concepts in jurisprudence – Rule of Law, for example – are universal but most norms within a legal system depend on the prevailing ethical or moral boundaries of the people (or their leaders depending on the legislative and enforcement mechanisms). Even in a tyranny if the set (or a particular norm) is sufficiently unpopular the people can change leaders, democratically or otherwise.

As the assessment of particular areas of human activity changes, laws vary to reflect or generate cultural shifts – sometimes it seems clear-cut that the shift is law-led, sometimes a change in the law clearly follows and reflects a cultural shift, but the story is usually more complex and captures the flux of forces surrounding the change – the decriminalisation of homosexuality is a major case in point. The success or failure of a law is often a reflection that socially its time has come or that it is not yet acceptable to the majority.

Minority rights are protected in the US and UK (and other) legal systems because, while there are arguments over the details, the majority accepts (whether on an ethical or moral basis) that minority rights should be protected. Changes and uncertainties surrounding what activities exactly those protected fundamental rights extend to will continue as terms with legal consequences (in this case the definition of marriage) are debated or culturally shift.

‘not for any rational reason whatsoever’ – while I am pro-gay marriage, in societies where the separation of powers is not really entrenched and the understanding of marriage is of a religious union with civil effects within a religious framework which specifies a heterosexual relationship , the denial of the right is, within that framework, rational. The legal irrationality (as opposed to humanist or ethical irrationality) of denying gay marriage within US or UK society stems from a clearly constituted separation of powers, extensive civil marriage (so applications of the term in law is not inevitably tied to religious frameworks), and legislation securing equal rights.

‘I think it is ethically preferable when courts assert its necessity. That is because the power to determine the scope of minority rights should not rest with the will of the general public.’ I agree that the legal consequences of laws enacted as overarching legal principals founding the system are best determined within the legal system. Local interpretations via popular vote on local consequences undermines the whole right and is jurisprudentially questionable – divorcing laws from the framework which informs them and is intended to makes the system of norms internally consistent, plus building in an undesirable level of uncertainty as to what the established right is and how far its established for those making or trying to follow the law.

In the context of your reference to the aspirations of societies outside the US/UK legal framework, you appear to be calling for a mandate for judges to entirely disregard the social values and make decisions instead on the basis of their interpretation of ethics in relation to the relevant minority. This would be inevitably subjective even where the judge had a detailed understanding of the difference between ethics and morality (not just in general but in the particular case) and what the ethical imperative would be.

Not what I think of as a just or desirable legal system, though a variation seems to be being tried out in Iran among other countries whose conclusions on various ethical matters differ from yours – largely in that, in common with many states, they aspire be moral rather than ethical and I’m not sure those in control of the law and legislation would all recognise or value the distinction.

While ethical behaviour is great aspiration for humanity, after thousands of years of philosophy despite some consensus on general principles, there is no single universally agreed conclusion on what the ethical decision in every context is. (I’m not even sure there are universally consistent signifiers denoting the concepts of ‘ethical’ and ‘moral’ in all judicially-relevant languages). I wouldn’t expect judges to come up with the solution, or at least not a singular one – they have to turn to the framework of laws, legislature and society.

Judges are legal, not ethical experts and requiring the latter would require a robust definition of ethics the law could refer to for assessing the legality or application of a particular law – on the assumption that no Spaghetti Monster imposes a universally agreed and detailed ethical system with clear directions in ambigous cases or areas of conflicting ethical imperatives, the complexity of each legal decision having to refer to two defined yet shifting systems of accepted norms (separate they would remain regardless of the implementation) beggars belief and buckles the idea of ROL.

A prime example of ethical and legislative complexities is recognition of marriage for committed multiple-partner relationships (separate from the issue of the partners’ sexuality) – a stickier question in law in the US, though the ethics appear similar, and the omission of its recognition today could be viewed as purely derived from Judeo-Christian religious traditions.
Depending on how minorities are defined (debateable in non-genealogical areas other than the legally-acknowledged field of faith), it seems likely to me that those in committed aetheist polyamorous relationships (whatever the sexuality) are likely to eventually want to test further changes to what marriage means. Given that there is no partnership greater than 2 currently acknowleged as a marriage in the US, that would be a greater legal shift for a smaller minority which would necessarily have a massive impact on law (new areas for property, divorce, parental rights), on the nation and the concept of marriage.
Technically qualms over a shift could be said to be rational where economically-based or considering disruption to a society, but otherwise concerns seem to centre on the abuses of the relationship in formally patriarchal societies , which arguably shouldn’t be an issue where consenting adults desire marriage in a framework of protected freedoms and equality. I know I’m very uncomfortable with the idea of widespread polygamy, but I now realise my reasons are cultural, feminist and sociolgical, not ethical where a consenting relationship of equals is concerned. But laws shape society, the upheaval of such a shift would be huge and concerns over protecting individuals during the changes very legitimate.
What is the ethical balance of issues other than equal rights? http://en.wikipedia.org/wiki/Polygamy#Secular includes the argument that ‘Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.’

How do foreigners of either gender whose polygamous marriage is not recognised within the US or UK view our historico-religious marriage definitions? How does that work for visitors or temporary residents?

Milan August 11, 2010 at 1:58 pm

What about avoiding the wrath of an Angry God?

The Economist published its obituary in 1999.

The success or failure of a law is often a reflection that socially its time has come or that it is not yet acceptable to the majority.

Acceptability isn’t a valid basis for evaluating discrimination. The general idea that we should not discriminate also has a logical and ethical basis not fundamentally tied to popularity. Rather, I would argue, forbidding discrimination is just because it produces better outcomes than allowing it, in terms of human happiness and the quality of life.

marriage is of a religious union with civil effects

While it is viewed in this way in some places, I think this is a terrible idea. By all means, religions can defined what it means to be ‘married’ within their worldview, but those definitions should have no force in law. From the perspective of the state, marriage should just be another legal contract consenting adults can enter into for whatever reason they wish. Admittedly, this is my perspective and not an especially common one.

This could also lessen some of the problems with polygamy you raise; if marriage is just a kind of contract, who’s to say that three or four or ten people cannot enter into one?

the difference between ethics and morality

We agreed a while ago that the terms are essentially interchangeable.

I take your point about it being hard for judges to determine what is ethical. I don’t think I am asking them to do that, per se. Rather, I am asking them to apply the constitutions of their states without hypocrisy (and I am thinking about states like Canada here, not Iran). When they do that, I don’t see any rational basis on which to deny gay marriage.

Milan August 11, 2010 at 2:01 pm

I don’t know of any notion of democracy which leaves the decision of what rights minority groups should have to the will of the majority.

Presumably, the notion espoused by the people who drafted and promoted Proposition 8.

Also, the people in Switzerland who banned minarets, and those in New York now who are trying to stop the construction of a Muslim cultural centre near Ground Zero.

R.K. August 11, 2010 at 2:05 pm

There is a utilitarian case to be made for the state treating marriage in a more stringent way than just a generic contract. That is because marriage seems to affect decisions that have societal importance, such as how children are raised. If you let people get ‘married’ for tax breaks, citizenship, or whatever, you potentially lose a useful lever of social policy.

Tristan August 11, 2010 at 3:37 pm

“Presumably, the notion espoused by the people who drafted and promoted Proposition 8.

Also, the people in Switzerland who banned minarets, and those in New York now who are trying to stop the construction of a Muslim cultural centre near Ground Zero.”

Why is their notion of democracy any more valid than that of any dictator of a “Peoples Republic of ____”?

Tristan August 11, 2010 at 3:38 pm

“There is a utilitarian case to be made for the state treating marriage in a more stringent way than just a generic contract. That is because marriage seems to affect decisions that have societal importance, such as how children are raised. If you let people get ‘married’ for tax breaks, citizenship, or whatever, you potentially lose a useful lever of social policy.”

The logical conclusion of this line of reasoning is to remove the benefits mentioned from heterosexual marriage, not to restrict marriage to heterosexual couples.

Milan August 11, 2010 at 3:41 pm

That depends.

Should the state encourage one form of marriage, because the results seem to be good?

Whether it should or not, it seems the case for gay marriage is strong. As the Walker ruling points out, letting homosexuals marry seems to have good impacts on their lives, society, and the lives of their children.

If marriage has utilitarian benefits linked to its current social definition, however, that could be an argument against making it just another contract.

Really, the argument for making it ‘just another contract’ is more motivated by libertarian thinking than utilitarian analysis.

Tristan August 11, 2010 at 3:48 pm

“I agree that the legal consequences of laws enacted as overarching legal principals founding the system are best determined within the legal system. Local interpretations via popular vote on local consequences undermines the whole right and is jurisprudentially questionable…”

This is only true in situations where the legal principles are interpreted in a way that liberates the oppressed. There are plenty of situations where leaving an issue to the legal system is counter revolutionary, i.e. when judges decided that homosexuality was a mental illness, and that any criminal who was a homosexual was automatically a dangerous offender. At that time, “local communities”, at least the gay communities, did not “undermine the whole right”, but fought for truth and justice.

And this is common – most every gain made by the poor and the oppressed are made through collective demands, where “local communities” organize in such a way that their grievances can no longer be ignored. The “principles” are not the universal domain of the legal system.

Tristan August 11, 2010 at 3:52 pm

““There is a utilitarian case to be made for the state treating marriage in a more stringent way than just a generic contract. That is because marriage seems to affect decisions that have societal importance, such as how children are raised. ”

Has no one else have noticed that this is a fascist interpretation of utilitarianism? My original reply was meant to be dismissive and sarcastic. We should not take seriously claims that the state should restrict rights from minorities on the basis that it improves overall welfare. Certainly it would be unacceptable JS Mill. who after all, believed in Utilitarianism on the basis that he thought it the only social philosophy that took the interests of individual persons seriously.

Milan August 11, 2010 at 3:55 pm

As I said before: “My general position on human rights is that they do not have moral force in and of themselves – they are just a shorthand way of encouraging good outcomes.”

We should pretend rights exist because doing so produces good outcomes, not because we think they are real.

Tristan August 11, 2010 at 4:01 pm

“If marriage has utilitarian benefits linked to its current social definition, however, that could be an argument against making it just another contract.”

Why do people think marriage is a contract? Marriage is a pre-contractual binding between two persons, which is after the fact recognized by the state. It can’t be primarily a “contract”, because your duty to your spouse exceeds and precedes your duty to the state – and this is recognized in legal provisions which protect you from being charged with contempt of court or obstruction of justice for refusing to testify against your spouse.

The primary function of a state with regards to marriage is recognition. That’s why Israelis don’t get upset that homosexual marriage is not legal in Israel – the key thing is that homosexual marriages there are recognized. Recognition means the bind between you and your spouse is understood by the state (community can also perform this function) to be a primary organizing feature of your life. In a sense, marriage is becoming one person (“we”), so it’s normal that the implications of this would be something having to do with taxes (since taxes are one of the primary relationship between an individual and the state).

So, if we are talking about excluding groups from state recognition of their marriage, we are talking about discrimination – pure and simple. We should not encourage discrimination for utilitarian purposes. That was a justification for slavery. (And, an implicit justification for modern forms of slavery i.e. temporary migrant visa worker programs).

Tristan August 11, 2010 at 4:08 pm

” As I said before: “My general position on human rights is that they do not have moral force in and of themselves – they are just a shorthand way of encouraging good outcomes.”

We should pretend rights exist because doing so produces good outcomes, not because we think they are real.”

Respecting the basic rights of another person is already a good action. The outcome, which is good, is the action itself. I don’t understand why consequentialists insist that the outcome of the action is something outside the action themselves – they must fail to understand that we as persons are merely acting beings, and literally are what we do.

Milan August 11, 2010 at 4:12 pm

The issue here is the priority between rules and outcomes.

Rules are justified when they generally produce good outcomes, except sometimes if they produce unacceptable outcomes as well.

Rules are also an efficient way to produce good outcomes. It would be tedious and invasive to screen every possible bit of speech, to see what its outcomes would be. It is better for society to adopt a broad rule saying that virtually all types of ideas can be freely expressed.

That said, it is rarely adequate to justify a legal decision or a public policy just by saying that it protects or advances somebody’s rights. We usually need to go a step further and consider the outcome that granting those rights in the first place sought to achieve, and how a new ruling or policy could affect that.

Tristan August 11, 2010 at 4:12 pm

“We should pretend rights exist because doing so produces good outcomes, not because we think they are real.”

On this account, a person does not have a right not to be raped. It is simply that being raped produces a “bad outcome”.

This is absurd, precisely because the reason why rape produces a bad outcome is precisely because it is a profound violation of a persons basic rights not to be abused. The reason why rape is traumatic is because rape is being forced to do something, or go along with something, against your will – your basic right not to do things against your will is being violated. If people did not have the right not to be violated physically, then being violated physically would not be traumatic. In fact, if people did not have rights, it would be very difficult to distinguish between rape and rape-fantasy.

Milan August 11, 2010 at 4:15 pm

As for marriage being a contract, I think that is what it inevitably becomes in a secular state – albeit not a contract that the parties are free to negotiate entirely for themselves.

For instance, courts would not respect a marital agreement that stipulated who would get custody of children in the event of divorce. Rather, the court would apply whatever custody rules were in force in society generally at that time.

Would marriage be better if people were more free to negotiate its terms, and less bound by state norms? I can certainly see cases where that approach could go horribly wrong: “My wife agrees to wear this burqa at all times, and if she so much as looks at another man, my family and I get to stone her.” At the same time, it seems possible that making marriage more customizable (within limits) could be a way of better reflecting the diversity that exists in types of human relationships.

Tristan August 11, 2010 at 4:19 pm

“Rules are justified when they generally produce good outcomes, except sometimes if they produce unacceptable outcomes as well.”

If “good outcomes” is interpreted neutral with respect to rights, then many policies which are morally wrong might be “justified” on your account. For instance, the religious discrimination against Christians and Jews in Saudi Arabia (and the USSR, for that matter). Or, the veil laws in Iran. These rules might produce outcomes which are preferred by the vast majority of people to whom they apply – this does not justify them.

Worse, if “good outcomes” is your test for morality in general, then many acts of terrorism might be justified. Some of these you’ll be happy about (like the possible killing of Iranian scientists by the US or Israel), but others are less popular (the IRA campaign actually did produce a good outcome in the end, but this in no way justifies in my eyes any of the bombings).

Tristan August 11, 2010 at 4:19 pm

“Why do people think marriage is a contract? Marriage is a pre-contractual binding between two persons, which is after the fact recognized by the state. It can’t be primarily a “contract”, because your duty to your spouse exceeds and precedes your duty to the state – and this is recognized in legal provisions which protect you from being charged with contempt of court or obstruction of justice for refusing to testify against your spouse. “

Milan August 11, 2010 at 4:22 pm

One major reason why focusing on outcomes instead of rights is that a rights-based approach often stops being useful as soon as two rights are in conflict. For instance, one person’s right to travel freely versus another’s right to a stable climate. Or one person’s right to express a (dubious) historical theory, versus the rights of others to have their histories accurately represented. When two parties are each asserting a right that looks valid, we need to think about outcomes to decide which one to honour, to what extent, and how.

R.K. August 12, 2010 at 10:50 am

I think there is generally agreement that the rights of legitimate minorities cannot be restricted by the will of the majority. What people disagree about is which minorities are legitimate.

Basically everyone now accepts that black people should have equal rights to those of other races. Few people argue that polygamists deserve equal treatment. On homosexuality, then, the population is split between those who see it as something natural and a legitimate lifestyle and those who still believe it is an aberration that should be discouraged or stamped out.

. August 16, 2010 at 11:08 am

What Will Anthony Kennedy Do on Gay Marriage?
It’s the question driving the entire Prop 8 train.
By Dahlia Lithwick
Posted Friday, Aug. 13, 2010, at 7:20 PM ET

When Judge Vaughn Walker decided Thursday to restart gay marriage in California as of Aug. 18, he turned what had been a tactical headache for supporters of Proposition 8, the voter referendum that banned same-sex marriage two years ago, into a strategic aneurism. Last week, the only issue they had to worry about was the lousy record they had produced for the appeals courts. They now have much bigger worries after Judge Walker’s suggestion that the only group that may be willing to appeal his decision striking down Prop 8—not the state, but ProtectMarriage.com, which defended Prop 8 at trial—may may lack standing to do so. As Walker put it, “Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction.” Emily Bazelon explains why the standing issue may derail the whole case. And if that happens, nobody will be happier than Justice Anthony Kennedy.

Maybe the possibility that the case will blow up over standing will also prove a blessing in disguise for the supporters of Prop 8. Last week, it seemed that the proponents of Prop 8 couldn’t possibly fail to appeal even if they secretly wanted to; the political pressure to fight the Walker decision all the way to the highest court in the land would be too high. But on Thursday, audio circulated of fundamentalist activist David Barton speaking on Today’s Issues on American Family Radio. As Barton put it, “right now the damage is limited to California only, but if California appeals this to the U.S. Supreme Court, the U.S. Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames” (presumably the states that have voted to reject gay marriage). Barton then continued: “There’s an effort underway to say ‘California, please don’t appeal this. I mean, if you appeal this, it’s bad for you guys, but live with it, but don’t cause the rest of us to have to go down your path.’ ” Maybe this question over standing offers ProtectMarriage.com an escape hatch: a way to lose graciously and try to present a stronger case the next time.

. August 16, 2010 at 11:15 am

“Thus, when faced in 2004 with the now-urgent question of what Kennedy might do on gay marriage, Ward was far less certain than all the advocates on both who say they’re sure they’ll lose. He concludes that Kennedy’s “opinions in Romer and Lawrence can be considered precedent to expand gay rights, including gay marriage. At the same time, they could constrain his choices and he could be unwilling to extend his position to more controversial gay rights claims.” And that’s pretty much the uncertain Kennedy landscape we’ve all come to recognize. Ward is certainly right that “future gay rights claims will be treated seriously” by Kennedy, but he’d also ask you to remember that the justice will be equally attuned to the opinion polls, the mood of the country, and the strong pushes and pulls from his colleagues. In other words, anyone seeking deeper hints or tips on what Kennedy might do in Perry is probably just going to have to wait and see. Kennedy may not even know yet himself.”

. August 16, 2010 at 11:16 am

The Best Way for Proposition 8 To Lose
Let’s cheer if gay marriage opponents decide not to appeal—but not if they can’t.
By Emily Bazelon
Posted Friday, Aug. 13, 2010, at 4:21 PM ET

In allowing gay marriages to go forward on Aug. 18, Judge Vaughn Walker noted that Proposition 8 proponents may not have standing to bring an appeal. How can that be, since they were allowed to defend Prop 8, the voter referendum banning gay marriage, at trial? And if they really don’t have standing in court to continue the fight for Prop 8, would that be a good way to resolve the case?

Andrew Sullivan has been tackling those questions in a series of posts. As I read it, he’s OK with kicking the case out of court for lack of standing because it would hoist conservatives on their own petard. After all, they’re the ones who usually cheer for narrow standing requirements. I take his point. And I surely see the benefits of halting this case before an appeal. No matter how many times Prop 8 big-shot lawyer challengers Ted Olson and David Boies say they know the heart of Justice Kennedy, and promise us that it is a heart that beats for gay couples at the altar, the smart money for same-sex marriage advocates is still on keeping this case—at this moment in time—away from the Supreme Court.

But in the end, do we really want gay marriage to become legal in California because of what’s essentially a technicality? That seems a highly unsatisfying resolution to what was always billed as an epic case, and it would expose in the left a bit of hypocrisy about standing much as it would the right. Far better would be for the Prop 8 proponents themselves to decide not to bring an appeal. David Barton of the American Family Association has already floated that idea. If conservatives cave in on their own, they’d implicitly concede how terribly weak their case was at trial, whatever excuse they come up with. (Barton’s was to cast Kennedy as a sure vote in favor of a constitutional right to gay marriage. Amusing that he thinks so, but I still wouldn’t want to bet on it.)

. August 18, 2010 at 1:34 pm

But as G.K. Chesterton points out, people who don’t see the use of a social institution are the last people who should be allowed to reform it:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

. September 5, 2010 at 12:57 pm

“With the Proposition 8 fight, Obama has fallen short in a different way, by his reluctance to join an emerging social consensus. Obama had previously criticized California’s Proposition 8, the ballot initiative banning same-sex marriage, as “divisive.” But his official position—which no one believes he actually holds—is that he is against legalizing gay marriage. Americans are changing their views on this issue with inspiring rapidity. Judge Vaughn Walker’s moving opinion provided an occasion for Obama to move to embrace the extension of equal rights to gay people. Instead, he slunk mumbling in the other direction. How dismal that America’s first black president will be remembered as shirking the last great civil rights struggle.

. October 4, 2010 at 10:58 am

“McCain’s protest against anti-majoritarianism likewise strikes a deep popular chord. It has the further advantage of providing an escape hatch from the substance of issues by reframing them in cultural terms. Arguments for raising taxes, expanding health insurance, and fighting climate change are all met with by the rejoinder that some people should quit telling the rest of us how to live our lives. The irony of this position is that this sort of automatic populism is the least conservative of political philosophies. It was Edmund Burke who most famously articulated the principle that elected legislators owe their constituents their best judgments rather than acting as conduits for majority opinion. In fact, it’s both valuable and necessary to have experts guide decision-making on complex subjects. I’d rather have a nuclear-energy policy set by Nobel Laureate Steven Chu of Berkeley than by a plebiscite—or have military procurement rules led by John McCain, for that matter. “

. June 7, 2011 at 5:56 pm

In the past, compulsory voting, warnings of a “freak” result (the opposition might win!), hardball politics and the exposure of the failings of some opposition candidates have been enough to ensure huge government landslides without electoral fraud or physical intimidation. At first, the short, nine-day campaign seemed to follow scripts from these previous quinquennial poundings of the opposition. The elder Mr Lee, now 87, warned voters in Mr Low’s target GRC, Aljunied, that they would have five years to “repent” if they voted him in. The PAP asked why one impressive Workers’ Party candidate had spent so long outside Singapore. A PAP minister drew attention to a video showing an opposing candidate taking part in a discussion on gay rights. His sexuality, said the minister, was his own business, but voters should know whether his party would pursue the “gay agenda” (male homosexual acts are illegal in Singapore). But the New Paper, a tabloid, splashed on its front page: “Is S’pore ready for a Gay MP?” Social-networking sites filled up with the rebukes of Singaporeans disgusted at the PAP tactic.

. June 15, 2013 at 11:34 pm

The war on gays
Strange bedfellows
American Christian zealots are fighting back against gay rights—abroad

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