[Marxism] Greenwald on deeply democratic ruling on gay marriage

Fred Feldman ffeldman at bellatlantic.net
Wed Aug 11 15:54:41 MDT 2010

This is the best assessment I have seen of the decision on the gay marriage
question in California. This was a profound decision, rooted in a clear
understanding that the Bill of Rights is not up for a vote at every election
go-round whether by referendum or other means.

I am struck by its argument that constitutional rights cannot be cancelled
out by fear campaigns, as in the current campaigns against mosques.

The decision is well thought out politically, and, yes, as the New York
Times reported, is aimed directly at Justice Anthony Kennedy, who seems
eager today to establish himself as a faithful follower of the current Chief
Justice. But I think he will find it hard to dodge thus sharply aimed

The fact is that the decision focuses on the question which is decisive:
Since the Supreme Court has decided that homosexuals -- gay or lesbians --
are not sexual outlaws, forbidden, subject to jailing, execution, stoning,
etc., what is the basis for denying them any of the rights of other

Without the outlawing of gay or lesbian sexual acts, what is the basis for
rejecting marriage or any other ordinary human relation to gays and
lesbians?  Yet few if any anti-gay politicians today campaign for resuming
the outlawing of gay or lesbian sexual acts.

In Texas, it is true, the Republican Party has placed re-establishment of
laws barring oral and anal sex into their platform, but even they did not
demand that gay and lesbian sex per se be outlawed. And since the scope of
the law applied to everybody, homosexual or heterosexual, it became a
laughing stock. 

They did not have the guts to advocate outlawing gays per se. the only
position that creates a credible basis for discrimination in other areas.

This thoughtful contribution -- which does not try to ban prejudice or
preference of any kind, does not insist on any prior change of hearts and
minds as a precondition for rights of those denied them -- deserves to be
studied and integrated more into our thinking.

By the way, the fact that the right is pushing the rumor (the truth or
falsity of which I don't much care about) that this judge is gay (see
Saoon.com) is a measure of the weak position they find themselves in.
Fred Feldman

Monday, Aug 9, 2010 06:10 ET
Marriage and the role of the state
By Glenn Greenwald

Marriage and the role of the state

Ross Douthat uses his New York Times column today to put what he undoubtedly
considers to be the most intellectual and humane face on the case against
marriage equality.  Without pointing to any concrete or empirical evidence,
Douthat insists that lifelong heterosexual monogamy is objectively superior
to all other forms of adult relationships:  such arrangements are the
"ideal," he pronounces.  He argues that equal treatment of same-sex
marriages by secular institutions will make it impossible, even as a matter
of debate and teaching, to maintain the rightful place of heterosexual
monogamy as superior:

    "The point of this ideal is not that other relationships have no value,
or that only nuclear families can rear children successfully. Rather, it's
that lifelong heterosexual monogamy at its best can offer something
distinctive and remarkable -- a microcosm of civilization, and an organic
connection between human generations -- that makes it worthy of distinctive
recognition and support. . . . .

    "If this newer order completely vanquishes the older marital ideal, then
gay marriage will become not only acceptable but morally necessary. . . .
But if we just accept this shift, we're giving up on one of the great ideas
of Western civilization: the celebration of lifelong heterosexual monogamy
as a unique and indispensable estate.  That ideal is still worth honoring,
and still worth striving to preserve. And preserving it ultimately requires
some public acknowledgment that heterosexual unions and gay relationships
are different:  similar in emotional commitment, but distinct both in their
challenges and their potential fruit.

    "But based on Judge Walker's logic -- which suggests that any such
distinction is bigoted and un-American -- I don't think a society that
declares gay marriage to be a fundamental right will be capable of even
entertaining this idea."

This argument is radically wrong, and its two principal errors nicely
highlight why the case against marriage equality is so misguided.

First, the mere fact that the State does not use the mandates of law to
enforce Principle X does not preclude Principle X from being advocated or
even prevailing.  Conversely, the fact that the State recognizes the right
of an individual to choose to engage in Act Y does not mean Act Y will be
accepted as equal.  There are all sorts of things secular law permits which
society nonetheless condemns.  Engaging in racist speech is a fundamental
right but widely scorned.  The State is constitutionally required to
maintain full neutrality with regard to the relative merits of the various
religious sects (and with regard to the question of religion v.
non-religion), but certain religions are nonetheless widely respected while
others -- along with atheism -- are stigmatized and marginalized.  Numerous
behaviors which secular law permits -- excessive drinking, adultery,
cigarette smoking, inter-faith and inter-racial marriages, homosexual sex --
are viewed negatively by large portions of the population.

The State's official neutrality on the question of marriage does not even
theoretically restrict Douthat's freedom -- or that of his ideological and
religious comrades -- to convince others of the superiority of heterosexual
monogamy.  They're every bit as free today as they were last week to herald
all the "unique fruit" which such relationships can alone generate, in order
to persuade others to follow that course.  They just can't have the State
take their side by officially embracing that view or using the force of law
to compel it. 

But if the arguments for the objective superiority of heterosexual monogamy
are as apparent and compelling as Douthat seems to think, they ought not
need the secular thumb pressing on the scale in favor of their view.
Individuals on their own will come to see the rightness of Douthat's views
on such matters -- or will be persuaded by the religious institutions and
societal mores which teach the same thing -- and, attracted by its
"distinctive and remarkable" virtues, will opt for a life of heterosexual
monogamy.  Why does Douthat need the State -- secular law -- to help him in
this cause?

Second, Douthat is quite confused about what Judge Walker actually ruled.
He did not decree that there are no legitimate moral, theological or
spiritual grounds for viewing heterosexual marriage as superior.  That's not
what courts do.  Courts don't rule on moral, theological or spiritual
questions.  Such matters are the exclusive province of religious
institutions, philosophers, communities, parents and individuals'
consciences, but not of the State.  That's the crux of this judicial

Thus, one can emphatically embrace every syllable of Judge Walker's ruling
while simultaneously insisting on the moral or spiritual superiority of
heterosexual marriage.  There would be nothing inconsistent about that.
That's because Judge Walker's ruling is exclusively about the principles of
secular law -- the Constitution -- and the legitimate role of the State.
That legitimate role ends where the exclusively moral and religious sphere
begins.  That's why we call it "secular law."  Judge Walker's ruling
concerns exclusively secular questions and does not even purport to comment
upon, let alone resolve, the moral and theological questions which Douthat
frets can no longer be "entertained" in a society that affords legal
equality to marriage.

The court ruled opposite-sex-marriage-only laws unconstitutional not because
it concluded that heterosexual and homosexual marriages are morally equal,
but rather, because it's not the place of the State (or of courts) to make
such moral determinations.  Moral and theological debates are to be resolved
in the private square -- through the kinds of discussions Douthat claims he
wants to have -- not by recruiting the State to officially sanction one
moral view or the other by using law to restrict moral choices.  Judge
Walker, citing decades of clear precedent on that question, made as clear as
can be that the issue Douthat seems to think was resolved by his ruling --
namely, whether heterosexual marriages are morally or spiritually superior
-- is the exact issue he refused to adjudicate, precisely because those are
the issues that courts have no business addressing and the State has no
business legislating (emphasis added):

    The arguments surrounding Proposition 8 raise a question similar to that
addressed in Lawrence [which declared criminal prohibitions on same-sex
sodomy to be unconstitutional], when the Court asked whether a majority of
citizens could use the power of the state to enforce "profound and deep
convictions accepted as ethical and moral principles" through the criminal
code. 539 US at 571. The question here is whether California voters can
enforce those same principles through regulation of marriage licenses. They
cannot. California's obligation is to treat its citizens equally, not to
"mandate [its] own moral code." Id (citing Planned Parenthood of
Southeastern Pa v Casey, 505 US 833, 850, (1992)). "[M]oral disapproval,
without any other asserted state interest," has never been a rational basis
for legislation. Lawrence, 539 US at 582 (O'Connor, J, concurring).

The court did evaluate the question of whether there is convincing evidence
demonstrating tangible, empirical benefits to recognizing only heterosexual
relationships, and found -- as have the overwhelming bulk of social
scientists -- that no such evidence exists.  That's why it's
unconstitutional to continue to exclude same-sex couples from the legal
institution of marriage:  because none of the empirical or utilitarian
justifications legitimately considered by the State can support that

But the moral, theological and spiritual questions about marriage are every
bit as open and unconstrained as they were before.  Just as is true with a
whole host of questions on which the State takes no position, private actors
are completely free to venerate some marriages and stigmatize others.
Churches, synagogues and mosques are free -- as they should be -- to
sanction only those marriages which their religious dogma recognizes.
Parents are completely free to teach their children that certain marriages
are superior and others immoral.  And columnists like Douthat are free to
argue that the relationships they want to have are not just best for
themselves but are, as an objective matter, morally and theologically

They just can't misuse secular law to institutionalize those views or coerce
others who don't accept them into having their legal rights restricted based
on them.  But if they're as right as they claim they are, they shouldn't
need to coerce others into acceptance through legal discrimination.  Their
arguments should prevail on their own.  The fact that they believe they will
lose the debate without that legal coercion speaks volumes about how
confident they actually are in the rightness and persuasiveness of their

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