Wednesday, October 15, 2008

Follow Up to Race and Gay Rights Essay Recently Posted on Dissenting Justice


Recently, I posted an essay on Dissenting Justice that criticizes a conservative political group's effort to exploit homophobia among blacks in California in order to mobilize support for a proposed state constitutional amendment banning same-sex marriage. If approved by voters, the measure would effectively reverse a California Supreme Court ruling which held that denying same-sex marriage to individuals who wanted to enter into such marriages violated the equality component of the state's constitution. Now, three states -- California, Connecticut, and Massachusetts -- permit same-sex marriage, although several other states explicitly ban the practice by statute or constitutional provision. Still others, like New Jersey and Vermont, allow for "civil unions," which the Connecticut Supreme Court recently rejected as discriminatory.

Black Voices (and other media) posted that essay on its website, and it has sparked a very lively discussion with 82 comments (and counting). You can view the discussion here: Black Voices discussion of race and gay rights. Thank you Black Voices for providing a space to engage in meaningful political debate -- and for helping me obtain exposure for my own blog!

What are your thoughts? My original posting appears here: Dissenting Justice essay on race and gay rights.

3 comments:

aSeaNamedSolaris said...

Ooo, I am glad you posted this follow-up 'cause something occurred to me the other day on the subject. If the Supreme Court of a state strikes down the anti-gay issues as unconstitutional based on jurisprudence how is it that these groups are able to "sneak down an alley and go through the back door" by putting propositions and referendums to the population? I have heard so much Republican/Democractic rhetoric about marriage being an issue for the states to decide (which I interpret as an excuse not to reveal their positions). It would seem to me that marriage is a civil rights issue putting it squarely in the face of the nations' highest court(s). The masses are unfit to make decisions on rights, civil or otherwise. Their prejudices and predilections are interjected into their decisions. Gay marriage, abortion, gun control, etc., affect the entire country and should be subject to jurisprudence not the fickle and uneducated tyranny of the masses. The masses can decide whether or not they want the state budget to be used to preserve open spaces or some such benign issue. They have no business deciding civil rights. I mean I understand our political system allows us to "throw off" government we deem insufficient or unseemly but I would think there are issues the public is unfit to decide.

Darren Lenard Hutchinson said...

Hi, Solaris. State court rulings on state constitutional law are final - just like the Supreme Court's rulings on the US constitution. But they are subject to the democratic process via amendments. Amending the US constitution is extremly difficult and has proven highly unsuccessful over time. But state constitutions are easier to amend -- absent layers of procedural hurdles.

Civil rights activists probably have mixed emotions over the California process - which I believe simply requires a certain amount of signatures simply to get things on the ballot. On one level, it looks like the hallmark of democracy. But at the same time, democracy has been the vehicle for subordinating groups. Placing civil rights issues to a statewide referendum can be quite harmful, especially when most of the state is banding together to strip a smaller, disparaged group of rights.

Some states - like Massachusetts -- have a difficult amendment process. I believe there is a two-year wait before a proposed constitutional amendment can go to a vote in Massachusetts. This is a great "cooling off" period, which allows people to contemplate their actions more - rather than acting rapidly to subordinate.

As for the matter going to the US Supreme Court, if you are an advocate of same-sex marriage, I doubt you really want the current Court to decide the case. Even if it were a more ideologically balanced Court, the justices would probably look to what the states were doing on such a controversial issue. So far, only 3 states permit same-sex marriage, and several others have explicitly banned it, while others have rejected implementing a ban (but do not explicitly permit it either). I am not sure that a liberal Court would rule favorably on the issue; even the Democrats have spoken out against it. A conservative Court would definitely rule that the constitution does not require states to permit same-sex marriage. But it ruled the other way -- this would settle the question nationally.

Thanks again for your posts.

aSeaNamedSolaris said...

"Civil rights activists probably have mixed emotions over the California process - which I believe simply requires a certain amount of signatures simply to get things on the ballot. On one level, it looks like the hallmark of democracy. But at the same time, democracy has been the vehicle for subordinating groups. Placing civil rights issues to a statewide referendum can be quite harmful, especially when most of the state is banding together to strip a smaller, disparaged group of rights. " That was my point exactly! Thanks again for the intel anent constitutions and amendments.

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