August 20, 2006

News Flash: Left and Right View Same Thing Differently

by PG

For a veteran of Senate staffing, A. Rickey sounds almost naive about politics in this post about state Defense of Marriage amendments.

Opponents of these Defense of Marriage Amendments (or whatever the latest Virginia iteration is calling itself) claim that there is a significant risk that, should the measures be passed, a radical conservative judiciary is going to expansively read the provisions to enforce them to the utmost bounds of their meaning, knocking out not only privately-contracted civil unions (plausible) or state-sanctioned domestic partner benefits (possible), but also private contracts between homosexuals on the ownership of corporations. Why? If those states have judiciaries that will twist the text beyond the bounds of reason to restrict gay rights (so much so that they'd abrogate many contracts entered into by non-married heterosexuals), why did the voters of these states feel they needed DOMAs in the first place? Who are these justices just about to give progeny to Goodridge that yet would overenforce a ban on civil unions?
I wonder how effective these arguments will be in campaigning against DOMAs. Certainly there is a risk that moderate voters will see opponents bewailing the coming conservative judiciary to be at least partially crying wolf, isn't there?
This argument requires two questionable assumptions.

First, that there was a substantial correlation between the actual politics of the state judiciary and the voters' perception of how judges (both state and federal, incidentally) could change the law. I can't say that, in the Texas and Virginia statutes and amendments for which I've witnessed in-state debate, much rhetoric was devoted to pointing out particular liberal state judges who would be the ones to marry Adam and Steve. Rather, the debate was focused more on how out-of-staters would drag their Vermont civil unions* or Massachusetts marriages to Our Great State, and some judge -- more often assumed to be a federal outsider than a duly-elected-by-the-people (in Texas) or appointed-by-the-governor (in Virginia) state judge -- would say that we had to recognize them. Or, most nightmarish of all, and the reason to amend the federal Constitution, the U.S. Supreme Court would impose gay marriage on everyone like they did busing and taking girls into military academies. Voters can be convinced that an evil is approaching without thinking that the evil wears the robe of a state judge.

Second, that opponents and proponents of DOMAs have the same perception of judges. The only way "moderate voters will see opponents bewailing the coming conservative judiciary to be at least partially crying wolf," will be if said moderate voters can't distinguish between the guy who told them that gay marriage would be forced on them by judges, and that was a bad thing, and the guy who's saying restrictions intended to prevent gay marriage will be over-stretched by judges, and that is a bad thing. Obviously, people at different ends of the political spectrum will view the same thing differently. Even in Virginia, there were people who were saying that Clinton was too damn conservative simultaneous with the cries that he was a demon from the Left. Opponents of DOMAs rarely agreed with supporters that gay marriage was on the doorstep, and supporters of DOMAs rarely agree with opponents that domestic violence laws must apply now only to married couples. Some people were convinced that the Supreme Court would void the Solomon Amendment because the Court is so pro-law schools/ homosexuals, while others had no trouble accurately forecasting the outcome in FAIR v. Rumsfeld. And so on and so forth.

So to answer A. Rickey's questions:

If those states have judiciaries that will twist the text beyond the bounds of reason to restrict gay rights (so much so that they'd abrogate many contracts entered into by non-married heterosexuals), why did the voters of these states feel they needed DOMAs in the first place? Who are these justices just about to give progeny to Goodridge that yet would overenforce a ban on civil unions?

There is no such judiciary in any one person's mind. However, put the minds of a liberal and of a conservative together, and the full parade of horribles with plenty of self-contradictions will spring forth. Perhaps predictably, A. Rickey seems to assume that the conservative voters had the correct view of their judges, and knew them to be dangerously close to hitching Heather's two mommies. Under this assumption, it certainly is crazy for DOMA opponents to think these highly liberal judges will suddenly turn around and over-enforce DOMA. Being unburdened by the notion that conservative voters always are right, however, I find the possibility closer to sane.

* Doesn't Vermont Civil Union sound like it ought to be a Ben & Jerry's flavor?

August 20, 2006 06:08 PM | TrackBack
Comments

What's that phrase about everyone being entitled to their opinion, but not to their own set of facts? With regards to your last paragraph, I submit two pieces of evidence:
(a) Goodridge actually succeeded. In the two most recent states to consider gay marriage cases, the votes were very close. Sooner or later, a lawsuit attempting to get a full-faith and credit recognition of an out-of-state compact seems inevitable, but in every state with a DOMA (and contrary to your assertion), much of the debate focuses on the courts within the state.
(b) On the other hand, in the debate over at the Republic of T (where I started this conversation), there has been nothing even vaguely approaching an argument from precedent concerning the use of DOMAs to overturn private contractual arrangements. Nothing. Zilch. Nada. To the best of my knowledge--and I've been looking--there is absolutely no reason to believe this will ever happen, as it has never happened before. The closest they've come was an opinion letter of a Michigan attorney general, which of course has no precedential effect and, further, seems never to have been carried into policy.

So no, I'm not idly assuming that conservatives are right in their characterization of judges. I'm basing this on the fact that I can cite cases--starting, of course, with Goodridge--that point to an actual, tangible risk. Terrance (and to a great degree yourself) can point only to some chimerical half plausibility of text, behind which stands not even the embryo of an actual argument.

Posted by: A. Rickey at August 21, 2006 01:38 AM

(Oh, yes, and the aforementioned opinion letter doesn't even touch private contracts. It deals with benefits given to same sex couples by the University of Michigan, and whether that creates a status equivalent to marriage. The key thing is that it probably does, but the whole issue can be avoided by giving partnership benefits to homosexual and heterosexual couples irrespective of their marital status. So the only possible horrible to which your allies are pointing would result in . . . more expansive health care coverage in Michigan.

The horror.)

Posted by: A. Rickey at August 21, 2006 01:43 AM

To answer the more important question, yes, "Vermont Civil Union" does sound like it ought to be a Ben 'n' Jerry's flavor, except that I'm not sure what it would taste like.

Sounds like a combination of 2 flavors that some people think shouldn't be combined...

Posted by: TO at August 21, 2006 12:02 PM

TO, the fear is that such a flavor would threaten the stability of B&J's traditional product line.

Posted by: Tom T. at August 22, 2006 12:37 AM
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