Tuesday, April 7, 2009

GLBT Equality Movements Reject the Meaning and Pace of "Change" Embraced by "Liberal" Politicians

In only a few months, courts in Connecticut and Iowa and lawmakers in Vermont have legalized same-sex marriage. And a 2004 court ruling in Massachusetts invalidated a same-sex marriage prohibition in that state.

Although voters in California, Arizona and Florida voted to ban same-sex marriage on Election Day 2008, a Florida judge recently overturned the state's ban on "homosexual" adoptions, and voters in Gainesville, Florida defeated a referendum which sought to repeal an ordinance that prohibits discrimination on the basis of sexual orientation and gender identity. Also, the Washington, DC City Council has voted to recognize same-sex marriages performed in other jurisdictions.

Most of these recent GLBT victories have occurred after decades of litigation, lobbying, political organizing, public information campaigns, and painful setbacks. Many commentators believe that public division over same-sex marriage helped President Bush win the 2004 election. That year, Bush sponsored an unsuccessful constitutional amendment that would have banned same-sex marriage. Exit polls show that a higher percentage of religions conservatives voted in key swing states than in the previous election cycle, possibly due to conflict over the same-sex marriage issue. Given this history, in 2008 all of the leading candidates in both parties danced around GLBT rights, and none of the true contenders endorsed same-sex marriage.

GLBT Movements Accomplish Change, Other Groups Find "More of the Same"
GLBT equality movements have engaged in relatively savvy political and legal action, which has led to their recent victories. No other liberal social movement can claim the rapid success that GLBT organizations are currently experiencing.

Labor groups are struggling to get Democrats in Congress to pass the Employee Free Choice Act. Also, the decision by the Obama administration to push the auto industry into bankruptcy and consolidation -- rather than giving car manufacturers trillions of dollars like banks have received -- will undoubtedly require drastic concessions by labor.

While women's rights groups celebrated the enactment of the Ledbetter Fair Pay Act, the statute really does not guarantee equal pay at all. Instead, it is simply a procedural measure that reinstates the more flexible statute of limitations rule that most courts applied in employment discrimination cases until 2006, when a divided Supreme Court imposed a more restrictive rule. The Ledbetter legislation is an important advance. Nevertheless, while gender equality advocates gushed over President Obama's ceremonial signing of the law, Congress tabled a more expansive proposal that would have relaxed the extraordinarily tough evidentiary burdens on plaintiffs in pay equity cases.

Pro-choice groups are another important Democratic Party constituency. In recognition of their electoral significance, President Obama reversed the "Global Gag Rule" during the early days of his presidency, but it remains pretty clear that he will not seek to reverse the Hyde Amendment and to legalize the use of federal funds for domestic abortion services.

Blacks and Latinos voted heavily for President Obama, but race and civil rights have not formed a visible part of the new administration's domestic agenda. Although the economy is certainly relevant to people of color -- who are disproportionately poor and unemployed -- most of the government's policies dealing with the economy have transferred wealth to powerful financial institutions. By contrast, only a few reforms have been implemented that provide immediate consumer-based relief. This glaring dichotomy explains the passionate response of the public to executive bonuses and compensation.

Finally, civil libertarians celebrated the President's executive orders banning torture, closing the Guantanamo Bay detention facility, and shuttering the CIA prisons. But they have been largely unsuccessful convincing the Obama administration to abandon highly criticized policies of the Bush administration -- such as asserting a highly expansive state secrets litigation defense, adhering to the use of rendition by the CIA, denying civilian attorneys access to the Guantanamo Bay detention center, holding out the possibility of "harsh" interrogations, and asserting broad power to detain indefinitely terrorism suspects (even if the government no longer uses the term "enemy combatants").

What Explains the Difference: GLBT Groups Are Not Passively Following Congress and the President
Although President Obama stated during his campaign that he would seek the repeal of Don't Ask, Don't Tell and the Defense of Marriage Act, he has not taken any affirmative steps to do so. Prior to his inauguration, press statements by anonymous members of his staff indicated that he would not move quickly on DADT.

Recent comments by Secretary of Defense Robert Gates affirms these earlier accounts. But Gates took a similar stance during the Bush administration, which caused some GLBT rights advocates (including this blogger) to question his nomination by President Obama. Needless to say, DADT is officially on the back burner.

Also, President Obama has not altered his position on same-sex marriage: He still believes that marriage should be limited to heterosexual couples. Rather than accepting his position or lobbying him to change his mind, GLBT rights groups have pursued other avenues of relief, including some that could force his hand.

For example, a recent lawsuit challenges the constitutionality of DOMA. Plaintiffs in the case entered lawfully recognized same-sex marriages under Massachusetts law. They seek equal access to federal benefits which DOMA denies, rather than a federal right to same-sex marriage.

The precarious status of the economy could help generate public support for efforts to alter the discriminatory distribution of federal benefits which DOMA mandates. Also a strong plurality to majority of the public supports "civil unions" and "equal benefits." Because this litigation advances an idea that enjoys popular support, it might succeed.

In any event, this case (along with an ongoing one that challenges the legality of DADT) could test President Obama's commitment to his campaign promises related to GLBT rights. Retreat from those promises could prove politically embarrassing and damaging.

Other Social Movements Are Passively "Going With the Flow"
Unlike GLBT social movements, most liberal groups are not visibly pushing the federal government or engaging in a sustained strategy in other venues. Apparently, they are still "glowing" over the Democratic sweep of Congress and the election of Obama.

Recent polls show almost unanimous Democratic support for President Obama. Furthermore, the Washington Post recently reported that many blacks feel conflicted over whether they should criticize Obama. Passive acceptance of the federal government's positions on policy is not a useful social movement strategy.

The differential treatment of auto manufacturers and financial institutions -- as well as the possible abandonment of the "public plan" option in health care reform -- means that labor unions could lose on some very important issues unless they push the Obama administration to alter its position. It is unclear whether women's rights groups will lobby for more substantial change, but with a new study reaffirming the existence of dramatic pay disparities that correlate with gender, the passage of substantive pay equity legislation could do more to advance gender equality than the Ledbetter legislation.

Importance of Engaged Social Movements to Social Change
Loyalty to a political party has never secured social change. Instead, political activism and litigation -- combined with political opportunities created by shifting economic and social conditions and international affairs have all led to substantial changes in policy across United States history.

Political commentators often distort history by vastly overstating the role of presidents and understating the importance of social movements to the history of policy innovation. Today, our society inflates the role of Lincoln in bringing about abolition, the centrality of Roosevelt to the New Deal and end of the Great Depression, the role of Kennedy in the enactment of the Civil Rights Act of 1964, and the role of Johnson in the passage of the anti-poverty and Great Society programs.

Although presidential leadership and vision were critical to the accomplishment of these policies, these dramatic changes would not have occurred without the engagement and agitation social movements. Presently, GLBT movements apparently "get" this aspect of history.

These observations are not unique to liberal causes. Conservative movements have also engaged in collective political action and litigation in order to accomplish their goals. Conservative social movement activity explains the sluggish move to integrate public schools after the landmark ruling in Brown v. Board of Education, the success of anti-choice movements in the 1980s, the effective politicization of same-sex marriage by conservatives in 2004 and 2008, the substantial legal constraints placed on the use of affirmative action, and the present realization among opponents to same-sex marriage that they must now recharge their activities in order to halt the impact of the marriage equality movement.

Only time will reveal if other liberal causes will take on a more activist stance towards policy and social change. If they fail to adopt more proactive approaches, they might obtain only nominal changes in an era that promised substantial progress.

14 comments:

Infidel753 said...

Yes! Political parties should serve their constituencies, not vice-versa -- that's why they exist. Especially after the last eight years of reactionary rule, now is the time to floor the gas, not sit back and wait for progress. I hope the other groups you mention will figure that out.

Darren Lenard Hutchinson said...

Hi, Infidel. Thanks for the post. I have thought more about the subject. Certainly, since the Democrats were out of power for most of the last 8 years, liberal groups by necessity could not do much at the national level. But this does not explain the disparity. Currently, other groups (except perhaps the ACLU and the CCR) are being very protective of the administration, perhaps to maintain access. But it is abundantly clear that change does not occur absent activism -- especially when politicians are explicitly telling us that they are going to delay dealing with certain issues or will let go of them altogether.

Anonymous said...

Dear Mr. Hutchinson: I think you exaggerate the success of GBLT. I am thinking of California, where the plain people wrote the banning of gay marriage into the state Constitution, being fed up with, dare I say it, judicial activism, as practiced by the quacks on the California Supreme Court. Now the largest state in the union has a gigantic roadblock in the way of the GBLT Utopia. Nor have I seen much fresh thinking on the troubling-to-the-Left phenomenon of many California voters simulataneously voting for Obama and to ban gay marriage. Oh sure, many GBLTers foamed and howled and roared at black voters, only to find in the scales of victimhood race trumps gender/sexuality as Hillary Clinton could have told them...

Vermont's achievement shines all the more brightly. There the law faced a hard tough fight, and prevailed. After the hosannahs die down, GBLTers may reflect that for all the prejudice they have faced, they are not powerless to change their status. They don't need to rely on the fraudulent judicial usurpation of power and activism that discerns rights where no one else saw them since the founding, even while rights explicitly guaranteed are tossed aside, e.g. the Second and Fourth Amendments. This is something to be cheerful about.

It's also a time for merriment. Already threats of vengeance against the Republican state legislators are being bawled. I would like to see Vermont GBLTers asked if they would vote for these GOP legislators, or instead send a message to the rest of the nation that any GOP who sticks her political neck out for the GBLT cause is a sucker who deserves what she gets. The cognitive dissonance this would create would be funny to watch.

Similarly, you said that Vermonters should veto their Grubenor for his veto. You might be right that the plain people should can him at the next election. Do you think that will happen? In a way, the GBLTers owe Grubenor Douglas a debt. He helped make passage of the law as difficult as possible, yet it won through anyway. After Douglas's veto and its override, no one can say that Vermont marriage came about through bamboozlement, trickery, and four being bigger than three as is possible in every other state. GBLTers can now point to the process and say, "It's possible." To be sure, it will take a lot of work, and there will be many disappointments. In some cases (California) it may not be possible. Yet the result of Vermont is far more solid than all the trickery the judicial branch foists on the nation.

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Gregory, thanks for your post.

Your entire argument rests on the false understanding that court decisions invalidating same-sex marriage prohibitions result from "bamboozlement," "trickery" or fraud. As I argued in another thread, this is not an accurate description of judicial review.

Also, many people have found attractive the argument that same-sex marriage is more legitimate in Vermont because it was achieved through legislation. I reject that argument because it rests on the same problematic view of judicial review stated above. Furthermore, the argument rests on a distorted view of history -- both in the US and in Vermont.

No significant legal change in U.S. history has been achieved simply through legislation or courts or social movement activity. Instead, a complex mixture of all of these factors have created change.

Consider the movement to rid society of Jim Crow. Some people point to Brown v Board of Education as an important case on this issue. Some believe that it did most of the work in terms of making segregation illegal. Others argue that the Civil Rights Act of 1964 accomplished far more than Brown. In reality, a combination of domestic and international politics, federal and state laws, federal and state court decisions (more than just Brown), and presidential actions helped to create this change. Desegregation would have never occurred if only one branch of government had the sole responsibility to make it happen. If you look at every major social-legal change in U.S. history, your will find the same complex set of factors operating.

Even in Vermont, same-sex marriage resulted from more than just the legislative process. A court ruling nearly ten years ago set up this process; the Vermont Supreme Court held that GLBT individuals could not be denied the tangible "benefits" of marriage, but it allowed the legislature to create "civil unions" as an alternative. Of course, Vermont also passed laws banning sexual orientation discrimination and courts have ruled on the subject in other settings. You are viewing this as a two-week movement, when it really has been going on for more than a decade!

Despite the reality that broad legal change has occured through a complex combination of factors, opponents of same-sex marriage believe that legislation should serve as the exclusive route for marriage equality. In order to justify this argument, they portray courts that strike down same-sex marriage bans as corrupt. But the argument is subtly attractive to opponents because it would require GLBT people to do what no other group has done in US history: reform national legal culture through legislation alone. Making your "opponents" do the impossible is a good way to win, right?

Finally, if the legislative process is so special due to its link to democracy, then why should we worry how gays and lesbians or any other persons vote in Vermont? Presumably, whatever voters decide to do is fine because they are participating in democracy -- unlike bamboozling judges. Voters and their representatives can "force" their views on society -- however problematic or troubling.

PS: I have not ignored California. Not only do I mention it in my article, I was one of the first commentators to predict and respond to the result. See:DISSENTING JUSTICE: Split Ticket? What California's Battle Over Same-Sex Marriage Means for U.S. Liberals. Also, because the California constitution can be amended by a simple majority of the public, the "roadblock" is not as big as you imply. The measure only passed by a tiny majority of the public. It will be reversed.

I also criticized both black voters and gays and lesbians after the results emerged. Accordingly, I reject your race/sexuality dichotomy and the privileging of race over sexuality. See: DISSENTING JUSTICE: Would Obama Have Won If He Were Black...and Gay?

I also criticized the "Clintons are racist" discourse that was so prevalent during the Democratic primaries. See: DISSENTING JUSTICE: Obama Allows Two "Racists" to Campaign for Him: Why?

Infidel753 said...

Judicial review is one of the fundamental points that separates a constitutional republic like ours from a "pure democracy" (tyranny of the majority) where any right can be stripped from anyone if 51% of the public chooses to do so. It's odd that so many anti-gay-marriage zealots don't grasp that -- especially since they would quite rightly be raising pluperfect hell if other basic rights, like freedom of worship or expression, were to be taken from them by a 51% vote in a referendum and there were no Constitution or judicial branch to affirm that some rights are too important to be left to simple majority vote.

As Prof. Hutchinson points out, Prop. 8 passed by a tiny margin. The margins by which these anti-gay initiatives pass have been trending downward over time. It won't be long before majority opinion shifts.

Oh, and as for these other groups being deferential to "maintain access" -- what's the point of having access if they don't use it to push for what they want?

Darren Lenard Hutchinson said...

Thanks, Infidel. Conservatives have also been very skillful using the courts to strike down affirmative action laws and policies. All of those plans had legislative or governmental support, but conservatives never argued that "equal protection" only meant what lawmakers said it meant in that context. Of course, those courts interepreted equal protection - just as the Iowa court did. People who disagree with either set of cases cry "judicial activism." Debating the substantive content of the court's ruling gets lost in the shuffle.

RavingRavenRavings said...

That a three tracked approach seemed to have been at play in the earlier anti-Jim Crow civil rights movement necessarily enshrines that approach? Might it be that th e particularities of the G-L movoement present either a more or less or differently sympathetic cause (maybe just in light of the 6's movement) to apply a different or less process. That might be what you are observing when you note the shorter time of ascendancy of the gay movement. I think to answer these questions one needs to sort out better how each tracks serves cause--not simply that it was followed. That is, e.g., was Brown really essential to dismantling Jim Crow--or was it a meaningless antecedent? If it were a contributing or necessarily track, what did this judicial track render that neither the legislative track nor the social movement approach could not offer?

RavingRobinRavings said...

I also think you make an essential point---Obama's marginalization of the marginal within his voter base. African Americans too this smiling during the election. A "black agenda" could not be championed. Now, Obama doesn't seem to think that any agenda of the relatively less powerful subgroups should be be priority.

Darren Lenard Hutchinson said...

RavingRavenRavings, thanks for the post.

I am afraid that you take my discussion of Jim Crow as an EXAMPLE of complex change to mean that it is the only moment in history where laws have changed from a multi-pronged approach. I said something very different, however: ALL broad socio-legal change has occurred from a multidimensional approach, that utilized resources at the state, federal, and international level (including courts and legislatures).

Also, I did not argue that the GLBT movement has a shorter ascendency as a general matter -- but that currently, it is accomplishing more because it is paying much more attention to the historical dynamics that have shaped change. Rather than "waiting" for the national Democrats to push the issue, GLBT invididuals have sought change elsewhere and have filed lawsuits that will actually force the hand of the administration. The result could backfire, but at least the administration will have to take an open and honest position.

Anonymous said...

Dear Mr. Hutchinson: Many thanks for your response. I was not so clear as I should have been about the GBLT response to the California Prop 8 imbroglio. You have posted and to my mind, sensibly. But this has not been reflected in general. Far too much foaming at the butt, with responses that could not pass a rabies nor an IQ test...

You write in a response: "Conservatives have also been very skillful using the courts to strike down affirmative action laws and policies." Pardon me, but Justice O'Connor's characteristically vague MICHIGAN opinion did not "strike down" affirmative action, but just tempered it in a not-very-intelligble way, a way that would have been much easier to accept had it been done by the legislative branch. Legislatures and statutes are expected to be messy. Courts, with their unbearable pretensions to precision and intellectual respectability, should refrain from playing in the mud, and let legislators throw it. If compromise is the art of making everyone unhappy, MICHIGAN was a great decision...

Mr. Hutchinson, we will have to disagree on judicial review. JR has always had an uncertain pedigree, being nowhere explicitly written in the Constitution. The case that established it in American law, MARBURY is awful, a farrago of fraud, deceit, treachery, maneuvering, and deception on the part of two Presidents, two secretaries of State, a Chief Justice, two Senates, and a Supreme Court. From start to finish, no one acted honorably except poor old Marbury, shot in the back by Marshall. Even Marbury can be counted as honorable only if you assume he was a catspaw.

Leaving the disgraceful birth of judicial review to one side, there's a pragmatic objection to judicial review: it doesn't work very well. Pay no attention to the sputterings of Infidel753, who is still drunk with euphoria from helping to elect The One. His silly assertion:

"Judicial review is one of the fundamental points that separates a constitutional republic like ours from a "pure democracy" (tyranny of the majority) where any right can be stripped from anyone if 51% of the public chooses to do so."

brightens an otherwise dull lefty maundering. Quiz time: how well did judicial review stop:

a) the suspension of habeas corpus by Abraham Lincoln during the Civil War or
b) the bullying and intimidation of the 1917-1920 Red Scare or
c) the mass internment of American citizens and their Japanese parents during 1942-44 or
d) the undeclared war in Vietnam
e) the holding of enemy captives in Guantanamo. For all the bawling the legals have done, the prisoners remain in the can, just like tuberculosis bacilli in a cyst.

Dismal record, no? There have been cases when it worked, e.g. Harry Truman's seizure of the steel industry during the Korean War on the clear if intellectually unpretentious theory that "the President has the power to keep the country from going to hell." 6-3, the Supreme Court laughed at him, and made him give it back. The country survived. Whether it would have if the Civil War Supreme Court had done the same to Lincoln---and if Lincoln had, like Truman, obeyed, is another story. I would be interested if Infidel753 thinks the US, with judicial review, is a freer country than Great Britain, or Canada, which do not have it. That is, if Infidel753's glass eye has not cracked at the realization that judicial review does not work when most needed. Small wonder Infidel uses a pseudonym.

I also think you way off the beam with this assertion:

"Desegregation would have never occurred if only one branch of government had the sole responsibility to make it happen."

What on earth makes you think desegregation has happened? Are you saying that busing of public school students was a success? That was largely forced by the courts. Reading Anthony Lukas's great book on busing in Boston, COMMON GROUND, is wrenching. You had a splendid judge, Arthur Garrity, in charge, but at best his record was mixed. (I think he failed, because the job was too big for any court.) Take another social change: abortion. It is the law of the land, but who thinks it is an uncontroversial right in the manner of voting is kidding. Maniacs have targeted abortion doctors (though not in the last 14 years that I know of.) Abortion may be the law of the land, but it is not regarded as such by a large portion of the populace. Yet another judicial fiasco: the banning and then allowing the death penalty. This can best be described as a fiasco.

It is this sort of wreck that I think creating GBLT marriage by judicial fiat will cause. It is fiat: without being an expert on the Massachusetts, Iowa, and Connecticut opinions, I can't see a common thread to them beyond "This is a good thing we are doing." Shucks, Massachusetts rammed it through on a 4-3 vote. A legislature can get away with this because it is a "majority rules" operation, with the possibility of repeal of a transient majority. A court, with its pretensions to intellectual elegance, has no such excuse. Who thinks that Blackmun's ROE opinion is a masterpiece of wisdom and clarity? Why not let a legislature (or even 50 legislatures) do the grappling? The risk of failure is great. I would not be surprised if many lefties said that I am arguing in bad faith, that the legislature will never enact GBLT marriage. The road to success in statute making has many failures along the way. But the result, once gained, has much better chance of acceptance by the community at large. It will obey one of the great unwritten precepts of the American system of government: governance is executed with the consent of the governed. Rod Dreher, no friend to GBLT marriage, has written that the legislative result is the way it should be done. Vermont will be accepted in a way Massachusetts will not be.

I think your civil rights-GBLT marriage analogy flawed for another reason. Civil rights in the 1950s and 1960s suffered from a great barrier: the aggrieved could not often vote. Oh, sure, there was a theoretical possibility, but for millions, the registrar's office might as well have been behind barbed wire. This gave independent legitimacy to courts stepping in. GBLTs do not have this disability.

I did not know of the Vermont Supreme Court's role in passing the law. I'm obliged to you for pointing this out. Perhaps this is the right role for the courts. Yet even there I think courts are too prone to take on matters that they can't execute well. Today's Supreme Court overflows with technology that Holmes would have been astonished by. Justices are surrounded by more and more clerks. The quarters are more accomodating than ever before. Federal Express makes it possible for Justice Stevens to send in his opinions. Result? Fewer cases are decided than in the last century. Split opinions that no one can make head or tail of flourish (O'Connor's MICHIGAN, ROE and its successors.) Felix Frankfurter's dictum that courts were the weakest branch because they didn't have the powers of purse or sword is on the garbage heap. Some success.

I better haul up and let someone else have at the electrons on the Internet.

Many thanks.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Gregory, In order to disprove my (very accurate) assertion that conservatives have relied upon litigation to invalidate affirmative action laws and policies, you cite to the Court ruling in Grutter, which upheld the Michigan Law School policy, as rebutting my argument. But you fail to cite the following case: Croson, Adarand, Parents Involved, Metro Broadcasting, Bakke, and several court of appeals rulings.

Your description of Marbury v Madison as resulting from "fraud, deceit, treachery, maneuvering, and deception" is a bit too over the top for a cogent analysis. Suffice it to say, the creation of the Supreme Court by the Constitution along with the explicit authorization for Congress to create the lower federal courts provides strong support for court review of statutes and executive action.

The Constitution gives the courts jurisdiction over cases that raise "federal questions" -- that is, raise problems related to the constitution, treaties, or statutes. Furthermore, Congress has given the federal courts power to issue legal (e.g. damages) or equitable (e.g. injunctions). Basically, Congress has conferred upon courts the authority to ENJOIN the operation of laws that violate the constitution and to award damages to the injured parties. Any ongoing argument that judicial review is "fradulent" has absolutely no basis in any real legal text or tradition. Futhermore, the Iowa court does not even derive its power of judicial review from the federal constitution. So Marbury is irrelevant to that case.

Darren Lenard Hutchinson said...

PS: Gregory, your discussion of cases that failed to invalidate the challenge action (Lincoln suspending writ, etc) actually undermines your arguments that portray judicial review as the hostile practice of a court battling democracy. Apparently, the Court -- as many political scientists would argue -- is fairly consistent with public opinion and often tailors its rulings around the interpretation of the law held by Congress and the President. This does not happen all the time, but the fact that it often happens, undermines the empirical ASSUMPTIONS of arguments that deride "judicial activism."

Infidel753 said...

Pay no attention to the sputterings of Infidel753, who is still drunk with euphoria from helping to elect The One.

FYI I supported Hillary, voted for McCain due to concern about the effect of Obama cultism on the Democratic party, and am not convinced that Obama qualifies as a true liberal.

The fact that judicial review has sometimes failed to prevent usurpations of basic rights does not contradict the fact that it has that role and has sometimes performed it (as in the cases of both civil rights and anti-gay discrimination), nor that fact that without it we would be far more vulnerable to tyranny of the majority.

PS "foaming at the butt"?

Anonymous said...

Dear Infidel753: You write:
"The fact that judicial review has sometimes failed to prevent usurpations of basic rights does not contradict the fact that it has that role and has sometimes performed it (as in the cases of both civil rights and anti-gay discrimination), nor that fact that without it we would be far more vulnerable to tyranny of the majority."

Was anything sillier? So long as judicial review works, just once, all other failures are to be ignored. No. The internment of American citizens is not something I, nor many people, want to ignore. Let me give you another failure of judicial review: the notorious PLESSY decision which validated segregration written in state laws, into federal law. I hope you won't tell me that you still think judicial review is worth anything after this. I'd need a football stadium to laugh in if you did.

I would also like your notions on if Canada and Great Britain, which do not have judicial review, are freer than the US, which does. Good luck proving that proposition...

Mr Htuchinson is on stronger ground when he points out that often judicial review has the courts approving legislation, or at least not throwing it out, which has much the same effect. But that leaves him and you in the paradoxical situation of saying that judicial review is OK because it doesn't work, that the courts follow the legislature instead of overriding it. If so, why have judicial review at all? The only answer to that is bamboozlement. The Soviet Union, after all, had a system of courts. They were nothing more than rubber stamps for the Party, but having the form proved that the Soviet Union was a democracy. Bah. Chesterton loved such paradoxes, but they are just foolery, unworthy of serious attention. So too, with the argument that judicial review is essential because it doesn't work most of the time...

Dear Mr. Hutchinson: You write that the Iowa Supreme Court does not derive its power of judicial review from MARBURY. I have looked at the Iowa Constitution and haven't found anything that explicitly allows the Supreme Court to overturn state legislative acts. If I've missed this, I'd be obliged to you to point out the article of the Iowa Constitution that explicitly grants this power. Failing that, where did the Iowa Court's power of judicial review come from? It couldn't come from the Federal Constitution, which does not have judicial review explicitly written in. That leaves case law. That brings us to MARBURY. You say my analysis isn't cogent enough. All right, try this:

1. 1800, the Federalists lose the presidential and congressional election.
2. Lame duck Prez John Adams is sore and alarmed that the dangerous radical Jefferson is about to take power. His solution: have Congress create a batch a new judges and stuff true Federalists in them, ready to stick their thumbs in Tom's eye.
3. Congress thinks this is a swell idea, creates the judges, Adams nominates them, and the Senate confirms. Adams leaves his outgoing Secretary of State, John Marshall, to deliver the actual commissions.
3a) Note that Adams and the lame duck Federalist Congress were completely within their rights to do what they did. But doing so could not be considered losing gracefully, or being a loyal Opposition. No.
4. Marshall, anxious to quit the Secretaryship and take up his new job as Chief Justice, doesn't give William Marbury his commission before he leaves.
5. Mrbury, ready to ascend the bench and stick his finger in Tom's eye, goes to the Department of State and asks the new Secretary, Jimmy Madison, where's my commission?
6. Madison asks his boss, Tom, what to do? Tell the sob we don't know nuthin' about no stinkin' commission for him. Given the Senate record of Marbury's confirmation, this is a remarkable case of flouting the law and jeering at Marbury, whaddaya gonna do about it, chum?
7. Marbury roars and promptly files suit. Suit comes before the Supreme Court. Tom sneers at Marshall and says, sure, issue your order. See if you can get past a buncha Army guys with fixed bayonets to get it.
8. Marshall thinks, says, hmm can't get past all those bayonets. Tells Marbury to go out in front of the court and turn around. Marbury does so. Marshall issues order: no Bill, can't give you your commission, the law you are applying for relief under, isn't constitutional. Such an order violates the judicial notion that judges should only decide issues that are before the court, not go haring about the countryside looking for issues.
9. Marbury lies in front of the Supreme Court, his back full of bullets. Tom laughs like hell for a minute, seeing how Marshall backed down and didn't give Marbury the commission he was entitled to, showing the Court's yellow streak.
10. Tom suddenly stops laughing when he realizes that if he accepts the Court's ruling, he's just handed the Court the power to say what the law is. But if he doesn't accept the ruling, he has to give Marbury his commission. He vows vengeance, and some years later bids his tools in Congress to impeach Associate Justice Samuel Chase.

There, Mr. Hutchinson, is how judicial review got started in this nation. Correct me if I'm wrong. I don't think you can. None of the principals in this sordid drama acted with restraint, honor, straightforwardness, or honesty. The squalid circumstances of its birth do not necessarily invalidate judical review. As the great legal commentator Alfred, Lord Tennyson wrote in IDYLLS OF THE KING:

"His honor rooted in dishonor stood
And faith unfaithful left him falsely true."

There's judicial review for you.

This has gone quite a ways from GLBT marriage, and I apologize for running all round the countryside. Yet the underlying issue, the courts butting in to problems they are not best suited to solve, is a big one, worth time to discuss.

Next, please.

Sincerely yours,
Gregory Koster
(not of CUNY)

Real Time Analytics