Snoqualmie

I think the election says a few things:

1) It's not as important to display good morality in one's actions and policies as it is to discuss one policies in simple, moral terms.

2) Boy, are people upset by/scared of/ opposed to gay marriage.

3) Illinois is just as terrified of Alan Keyes as the rest of us.

All politicians legislate their morality. It's impossible not to do so. You think it's immoral to interfere with a woman's right to choose, and he thinks it's immoral to allow a woman to choose to kill a "life." Same difference. We are all trying to align the world in accordance with our values.

While it may not be technically illegal to legislate your morality, I'd like to point out (to those of you who like to read about things) a couple things about doing so:

1 - Morality isn't everything. Most laws tend to be based on things called "principles" or "doctrines", which are more about the practical implementation of things that we can say are arguably moral. Our Constitution reflects our nations respect for things like fairness, openess, accountability, freedom and respect for life, liberty and property. Because issues can fall under any number of priciples our society prizes, law must balance these interests so that no one principle gets too weakened at the expense of another. Americans care about the environment, but we have to make sure it doesn't unduly hinder business or our freedom to travel. No one thinks kids should see porn, but we can't let our freedom of speech be eroded away. Morals are important and our fundamental principles reflect what America values, but there's often a conflict between "moral" aspects of issues and others, such as freedom of speech, health & safety concerns or just plain ol' practical considerations. While we must always do what's right, we should always remember to consider the effect decisions will have on our other fundamental principles, without which we would not be "the home of the Free".

2 - When a lot of people talk about "morals", they seem to really be talking about religious principles or teachings. It's true that a lot of our Western principles, values and morals come from Christianity, but this is a different animal from codifying scripture. Almost every culture in the world realizes it's bad to kill people, good to be fair, be alive, be healty, have food, have money, have homes, have jobs, have kids, have someone to love... all without the benefit of Christianity or the Bible. Morality, at least the kind our forefathers had in mind when they created this Nation, was something rooted in MAN(kind), something placed in us by virtue of our humanity and reason. The proscription on an official US religion and the guarantee of religious freedom has been interpreted from the beginning as a clear indication that our nation's government is not to be unduly influenced by any one religious doctrine. The framers realized that the government's mandating a particular religion, thus making the official religion's teachings part of the law, would inherently infringe the religious freedoms of other Americans. Our law is not based on, and was not meant to be, a direct codification of religious beliefs. Not being able to make your religious beliefs law doesn't prevent you from living them yourself, and it certainly doesn't mean that law can't be used to do what's morally right. Morality has an existence distinct from religion, and that's what our government runs on.

3 - In 2003, the Supreme Court declared anti-sodomy laws unconstitutional because they violated the Equal Protection Clause (based on the principles of freedom, equality, repsect for each individual's humanity) because it discriminated against gays on purely moral grounds. Throughout the opinion, the Supreme Court makes very clear that, in our country, morality alone is not sufficident justification for a discriminatory law:

Majority Opinion:
"...for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850.

"...the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice..."

"The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the... law."

O'Connor's concurrence:
"Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause"

"Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law."

Those are clearly some good, strong points. I just wonder, from a pragmatic sense, how much the focus on the issue of gay marriage ultimately hurt John Kerry in this election. It's so incredibly polarizing and unpopular in so many places, the mere presence of an anti-gay marriage initiative in a lot of places worked as an even more powerful GOTV effort than anything the Democrats could try.

I would like to see this compared to the issue of interracial marriage, which is the obvious parallel. I was shocked when I learned this recently, but interracial marriage was not legalized until 1967, or about five years before my own parents were married. California legalized it in 1959. Up until 1957, interracial marriage was illegal in half of the states in the Union. Unbelievable. Well, actually, completely believable. Just really gross.

Rather than backing off, it would be nice to see the Democratic Party actually make a fight on this issue. John Kerry staked out a position almost identical to the president - civil unions are one thing, but gay marriage is unacceptable - and he still got destroyed on it. Why not take a position and call discrimination by its name, instead of trying to moderate one's stance until it's meaningless? The Democrats are already considered the party of gay marriage no matter how wishy-washy Kerry's position.

Gay marriage is different from the abortion as a moral issue. In general, anti-abortion folks want to ban abortions across the board. No one advocates a position where certain citizens have abortion rights while others don't. There are parental consent laws, but age limits aren't exactly discriminatory. I don't know enough about the legal arguments behind the court decisions, but I do feel that, setting aside the fringe, clinic-bombing aspect of the movement, being anti-abortion is a very defensible moral position.

Opposition to gay marriage, on the other hand, is nothing if not discriminatory. It advocates different sets of rules for different sets of people, on a purely discriminatory basis. And while one might debate the immorality of such a position, the illegality of it seems clear.

I like the implication here that your own parents are an interracial couple. I imagine Dennis emerging from his homeland of leggy bikers, while Sharon comes from a cackling tribe of women cracking one-lines and one another's weak knees.

one-lineRs

the problem is that, while banning gay marriage is clearly discriminatory*, homosexuals aren't a "suspect class" for the purposes of equal protection. esentially the standard that federal courts (as instructed by the Supreme Court) apply to laws that discriminate based on sexual orientation is what's known as "rational basis scrutiny," meaning that as long as there's a rational basis for the discrimination, the discriminatory law is constitutionally valid. the RBS applied to homosexual discrimination has gotten a little more restrictive, such that mere animosity toward homosexuals is no longer an acceptable basis for a law (see o'connor's quotes above).

BUT, the part of o'connors concurrence that kristina didn't quote, and a passage that i've quoted over and over again when discussing this issue, is the part where she explicitly says that preserving traditional marriage IS an acceptable basis for discriminatory laws against homosexuals. that's dicta, of course, but it's a signal that a majority on the current court sees laws against gay marriage as a-ok.

sorry, this is getting long, but one more point. given arlen specter's warning to bush about roe v. wade, the new "litmus test" for supreme court appointments might be gay marriage. i wouldn't be surprised at all to hear the judiciary committee ask bush's SC nominees whether they would legalize gay marriage. and given the popularity of the 11 referenda that just passed, bush could easliy ensure that his appointees agree with the current majority.

Dennis has the soul of a black man.

oops, i forgot that i left that asterisk up there. what i was going to say, and what i'm saying now, is that there are some knuckle-dragging conservatives out there who actually claim that gay marriage laws AREN'T discriminatory, because gays have the same marriage rights that everyone else has: the right to marry someone of the opposite sex. needless to say, this argument is completely retarded, but it's out there.

i'll also point out that i think o'connor is full of shit re: traditional marriage satisfying rational basis, and that the court in general is full of shit for not applying at least intermediate equal protection scrutiny to laws burdening homosexuals (intermediate scrutiny is what they apply to gender-discriminatory laws, as opposed to "strict scrutiny," which is what they use for racial discrimination).

The following, taken from Daily Kos, who took it from JuanCole.com, is along the lines of the type of strategic movements I would like to see happen:

For instance, a lot of Democrats would like to see gay marriage or at least civil gay unions passed into law. This is a matter of equity, since gay partners can't even get into a hospital to see an ill partner because hospitals limit visits to close family.

This issue scares the bejesus out of the red states.

But if Democrats were sly, there is a way out. The Baptist southern presidential candidate should start a campaign to get the goddamn Federal government out of the marriage business. It has to be framed that way. Marriage should be a faith-based institution and we should turn it over to the churches. If someone doesn't want to be married in a church, then the Federal government can offer them a legal civil contract (this is a better name for it than civil union). That's not a marriage and the candidate could solemnly observe that they are taking their salvation in their own hands if they go that route, but that is their business. But marriage is sacred and the churches should be in charge of it.

If you succeeded in getting the Federal government out of the marriage business, then the whole issue would collapse on the Republicans. You appeal to populist sentiments against the Feds and to the long Baptist tradition of support for the US first amendment enshrining separation of religion and state.

But the final result would be to depoliticize gay marriage, because the Federal government wouldn't be the arena for arguing about it. The Federal government could offer gays the same civil contract status as it offers straight people who want to shack up legally but without the sanction of a church. As for gays who wanted a church marriage, that would be between them and their church (remember, the Federal government is not in the business, but would go on recognizing church-performed marriages as equivalent legally to the Federal civil contract).

Dear Democrats,

While you think about how to do better next time, please stay true to your core values and feelings. Don't restrain your anger; part of your problem in this election was that you didn't put it out there enough. If other Americans understood how truly mad you are it would make more of an impression.

You need to try harder to make them see that you're smarter and better than your opponents. Unleash your indignation and express your outrage and they will start to get your superiority to the religious fanatics, racists and homophobes who oppose you. You've got to make the point over and over that these people are intolerant stupid hicks while you are smart, good and wise.

Face it, you're just not getting your message across. You run mild, polite candidates who can't or won't let it all hang out. If everyone understood, really understood, your anger, intelligence and moral superiority, well, things would have turned out differently.

If anyone is keeping track, this is about the tenth year running that repeatedly calling George W. Bush stupid was an ineffective political strategy.

holohan, good analysis, but many in the legal community tend (or tended) to strongly discount the dicta in that opinion, because around 20 years earlier the same case came out the opposite way; the Court has implicitly recognized that social attitudes are changing in a way and at such a fast pace (judicially speaking anyway) that stare decisis and legalistic line-drawing simply aren't all that compelling or convincing anymore.

The reason I inserted that little "tended" equivocation was, of course, because if the right justices resign or kick the bucket within the next four years, things could change drastically.

That part of O'Connor's opinion is dicta... and I hate dicta. Hate it.