Obstructing the tide of history

In The New Republic this week Richard Just shines the spotlight on Barack Obama’s hopelessly contradictory position on gay marriage. He compares it to Woodrow Wilson’s pathetic attempts to dodge the issue of women’s suffrage by claiming it was an issue for the states.

The issue is topical in America because the United States District Court has just found that Proposition 8 — a recent California constitutional amendment, passed by referendum, prohibiting same sex marriage — violates the Fourteenth Amendment to the Federal Constitution. The President responded to this development by saying: “I am not in favor of gay marriage, but when you’re playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that that is not what America is about.” As Just puts it:

Obama appears to be saying that it is fine to prohibit gay people from getting married, as long as the vehicle for doing so is not a constitution. Presumably, then, he supports the numerous states that have banned same-sex marriage through other means, without resorting to a constitutional amendment? If so, he might be the only person in the country to occupy this narrow, and frankly absurd, slice of intellectual terrain.

There is an ongoing debate in the US about whether legislative change or judicial rulings are the best way to achieve marriage equality. There is certainly a good case for the latter, affirming the right as an inherent liberty rather than a privilege dependent on the largesse of public opinion.

In the US, in any case, judicial decisions appear at the moment to be the most promising vehicle as far as most of the country is concerned, especially if the Perry v. Schwarzenegger ruling withstands appeal.

If left to the politicians it would take a hundred years, if Obama’s unedifying squirming is any indication.

Unfortunately in Australia, cursed by a lack of constitutional protections, we will have to go on waiting for the squirming politicians to be lifted by the tide of public opinion.

The question is why we should settle for that approach, given that the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, and Argentina have already embraced full marriage equality, and according to a Galaxy poll from last year, fifty-eight percent of Australians support it. And yet our leaders on both sides seem to be not so much waiting for the tide as actively conspiring to hold it back.

On Q&A during the election campaign Cheryl Kernot praised Julia Gillard for being candid about her atheism, and I seem to recall others doing so too. At the same time, commentators have wondered how she could justify her continued opposition to same-sex marriage, especially given that she’s in a non-traditional marriage herself. Mr Rabbit also refused to contemplate gay marriage; but whereas in his case that undoubtedly reflects his true preference, I’m prepared to bet that Gillard has no personal objection whatsoever.

The opposition to gay marriage is dictated by naked political pragmatism. A change in policy might not lose Labor millions of votes, but just enough to cost them the election if the swinging voters are not part of that fifty-eight percent. As Rodney Croome puts it:

Perhaps she believes the overreaching claims of Pentecostal pastors about the influence of their mega-churches in key marginal seats. Perhaps she owes something to those right-wing Catholic MPs who are, in turn, under the unhealthy influence of Rome. Perhaps she simply wants to convince voters that she is a leader of conviction, even when she knows those convictions are wrong.

But isn’t there a double standard here? It would have been shameful if she had pretended to believe in God, but it’s understandable on grounds of political realism that she chooses to conceal her real views on same sex marriage?

One might try to resolve the paradox by noting that there is no legislation regarding the existence of God, and no ALP policy on it; whereas there is a Marriage Act, and Gillard cannot express a personal view about it that contradicts party policy. However, in this case I think she might have found a form of words to express persoanl support while noting that her hands are tied, and perhaps signalling a willingness to take the issue to the Party’s National Conference.

In the meantime she could do a lot worse than listen to this electrifying talk by David Boies, the attorney for the winning side in Perry v. Schwarzenegger.

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Patrick
Patrick
11 years ago

I would generally be careful embracing judicial-led change. As it happens, I think gay marriage may work out fine through the courts, but abortion provides a counter-factual.

The Economist has a long-running theme that the reason that America has such a poisoned abortion debate is primarily that Roe v Wade, an rather poor piece of legal reasoning to boot, absolved politicians from any responsibilities. So each ‘side’ could continue to ratchet up the rhetoric safe in the knowledge that they didn’t have to actually vote on a compromise, or otherwise put, there was nearly no cost to pandering to the passionate minority since you never had to actually act (ie legislate) in support of them.

But gay marriage may indeed be different, not least since amongst other things it doesn’t appear to involve harming anyone, and also since it involves the application of widely accepted and understood legal rules, such as equality and non-discrimination, whereas Roe v Wade involved basically making up new and not-very-widely-understood (nor ever elsewhere applied, I don’t think) legal rules like the right to privacy over the use of one’s womb.

Edward Carson
11 years ago

Do we go to any lengths to get what we believe to be just, to be made law?
Patrick made a point about the courts absolving the pollies but also referred to the questionable reasoning in the landmark case of Roe v Wade.

I believe Perry v Schwarzenegger was also faulty and that, I believe, sets a very dangerous precedent. Antinomianism is the doctrine, originally embraced by Christians, that one is free by grace from observing morality if pursuing God’s will. There seem to be atheists embracing this aspect of Christianity.

I believe P.v S. is an example. To begin with the sole ruling judge, Vaughn Walker, was homosexual. Gee, do you think there may just be a conflict of interest in having him decide if banning gay marriage is constitutional?

Secondly, one of the reasons he stated for his decision was that there was no rational basis or vested interest in denying gays and lesbians marriage licenses. Remember, this was not the legislature, this was constitutional review. His honour was stating that the people have to have good reason to create a law (in this case amend the California Constitution). It beggars belief that this judge could claim the people don’t have the arbitrary right to create law, subject to violating the constitution, but that he, or his fellow judges, first had to agree with the reason for the law. I am yet to hear of any constitution which declares that all laws must have good reasons.

Finally he claimed the new constitutional amendment violated America’s Equal Protection clause: “nor to deny any person within its jurisdiction, the equal protection of the laws” What this simply means is that for any laws that exist, they apply equally to all people. For example, the state cannot grant legal aid to whites but ignore blacks. It would be ridiculous for it to mean that laws must be changed so that they apply equally. Should unemployment benefits apply for Bill Gates if he quit his job? Should everyone pay the same amount of income tax? (OK, good idea but still not constitutional.) Can a convicted felon be appointed as a judge?

I think we are going down a slippery slope to apply surreptitious means to achieve what we believe are rightful ends. The embittered losers of today study the tricks hard and become the vengeful winners of tomorrow.

Andrew Norton
11 years ago

I agree with Patrick. In Australia the issue is largely a symbolic one about the status of gay people in Australian society rather than their legal rights (which are far closer to equality than is the case in the US). It is therefore important that it happen democratically, signalling majority political support rather than by judicial fiat.

James Farrell
James Farrell
11 years ago

Edward, I’m not any kind of jurist, let alone an expert on the 14th Amendment. I don’t whether laws generally have to have good reasons, but it doesn’t seem like a bad principle to me. If the advocates of a law can’t show that anyone’s interest is protected by it, and yet it clearly harms or disadvantages some group of people, how can it be justified?

On the other hand, you don’t make a convincing objection to this decision as an application of the the Equal Protection clause. Tax and benefit laws specify obligations and entitlements for different cricumstances, where those differences are relevant to the purpose of the law, namely to redistribute income from rich to poor. The difference between same and opposite sex couples is not relevent to the purpose of the marriage law.

I wonder what threat exactly you envisage from those vengeful winners of tomorrow.

James Farrell
James Farrell
11 years ago

Andrew and Patrick

In choosing a picture for this post I was torn between two posters — the witty one that I opted for, and another, more salient to the issue you raise, that read ‘Did we vote on your marriage?’

Andrew Norton
11 years ago

The picture was a good one. I read in article in a Hong Kong newspaper earlier this year about a society for Chinese women married to homosexual husbands – thousands of members apparently, seeking support for their unhappy situation.

Edward Carson
11 years ago

“I don’t know whether laws generally have to have good reasons, but it doesn’t seem like a bad principle to me”

Gees James, I can’t believe you said that !!!!

You know, when they create laws in Parliament the government introduces the bill, the pollies debate the issues for hours or even days and then the law is passed. But it’s not like everyone finally comes to agreement after the long debate. In reality 83 members of the government think it is a good idea and the 67 opposition members have arguments as to why it isn’t. After many hours of explaining the issues and debate the final vote is taken and guess how it goes? That’s right: it passes by the margin 83:67. Haven’t you ever heard that adage: “No adult every changed his mind due to rational argument.”

James, no parliament ever passed overtly irrational laws. The Nazis, the Communists, and for that matter the Greens, all think that their proposed legislation is rational.

It’s not like we have some HAL 9000 IBM computer to decide what is a good reason and what isn’t. What we have, instead, is that decision making entity called ‘homo sapiens’. The guys who happen to have been appointed by the existing or previous political administration.

You don’t seem to have much regard for that concept of the separation of powers , especially as it relates to the judiciary and legislature. I have trouble seeing any difference between the judiciary disallowing legislation because it is not based on rational foundation and disallowing simply because it is not the type of law they personally would have voted for.

How old are you James?

P.S. Yes, good picture.

Edward Carson
11 years ago

James,
Actually I’d never heard of the Racial Integrity Act. I had to look it up on Wikipedia. On the limited knowledge I have on the case from one source and a brief read my answer to your question is an unequivocal NO!

The reasoning, similarly quoting the 14th amendment as the above case, was consequently as spurious. Practically all legislation grants privileges to some people at the expense of others. To say that the 14th invalidates all legislation where people aren’t treated equally would invalidate more than half the laws of the country (OK, possibly a good idea but beside the point).
Rent control laws don’t treat landlord and renter equally. Employment laws for government agencies don’t treat the industrious and the slack the same way. Even if the legislation’s inconsistency with its motive was grounds for violating the constitution (which it definitely isn’t), I don’t think relevance to the motive for the laws themselves makes a difference because the Racial Integrity Act intended to keep the individual races separate and thus “pure”.

James, your argument seems to be in cases where the legislation has made such an unbelievably bad law, the courts then have a right to just take it upon themselves to override it even if it is still technically valid.

Now in presenting that argument you decided to use the RI Act as an example. The problem is, you made that decision in 2010, rather than in 1924. With the benefit of hindsight you chose a law that did actually turn out to be quite unpopular. Your argument only works if you chose a law that is universally unpopular. If you had chosen the ‘Death Penalty Introduction Law’ I would have said: “So what, where’s the harm?”
So any universally unpopular law will, because we live in a democracy, be eventually repealed in time anyway.
The US Supreme Court still did not repeal the whole RI Act. That was done by Virginia’s Assembly a few years later. And if you think why we shouldn’t have to wait for the legislature, then don’t be too sure the guys in the black robes always do the right thing. The RI Act’s sister Act was the Sterilization Act and no less a figure that Oliver Wendell Holmes thought, in Buck v Bell, that taking the knife to someone who was a “genetic threat to society” was a great idea.

I suspect, unfortunately, that a lot of people, including even judges, consider judicial review as just another arm of politics, rather than as the sanctity of the impartial overseer.

Patrick
Patrick
11 years ago

Actually, Edward gets it too right, and I have to wonder if he knows more about this area than he let on, or if he spent a good few minutes on wikipedia ;)

THe same line of cases as the Racial Integrity Act sired Lochner, which came reasonably close to ruleing that it was illegal to impose labour standards (obviously it was not that extreme!). Later on, when Lochner was just an aberrant disregarded mistake, the same line of reasoning, mated with some swinging sixties activism, reared its ugly head in Roe v Wade.

I suspect, James, that leaving aside the peculiarities of the exact case and the exact Constitutional issues, Edwards’ view is essentially the mainstream view of the judicial function in the Australian legal community.

Edward Carson
11 years ago

By the way:
Your noble judge Vaughan Walker from Perry v Schwarzenegger who started this whole thing. When he referred to the 14th amendment declaring equal rights for minorities, those minorities apparently don’t include Mormons and Muslims who I’m guessing would also like to practice their type of marriage.
Pity for them Walker wasn’t also a Mormon or Muslim instead of just being gay.