Tuesday, July 14, 2009

No Longer In or Seeking Public Office, Bill Clinton Endorses Same-Sex Marriage

Former President Bill Clinton has "basically" embraced same-sex marriage. Although Clinton once opposed same-sex marriage, during a recent speech in Washington, DC, he said that he is now "basically in support" of it. Nevertheless, while Clinton applauded states that have extended marriage rights to same-sex couples, he asserted that same-sex marriage does not present a "federal question."

My Thoughts
First, I find it odd that Clinton says that same-sex marriage does not involve any federal issues when he signed the infamous Defense of Marriage Act into law! DOMA permits states to deny recognition of same-sex marriages performed in and recognized by other states, and it creates a heterosexual definition of marriage for federal regulatory purposes. I would love to hear Clinton wiggle out of his contradictory stances. For the record, the denial of same-sex marriage raises serious equal protection and due process concerns -- which are indisputably "federal" issues.

Second, Clinton is the biggest political star who has endorsed same-sex marriage. Recently, several Democrats and (less prominent) Republicans have voiced support for same-sex marriage. The growing list includes: Howard Dean, Charles Schumer, John Corzine, Christopher Dodd, Dick Cheney, Meghan McCain (daughter of John), Steve Schmidt (John McCain's top strategist), and Jerry Sanders (San Diego Mayor).

Finally, although Clinton, Cheney, and Dean have endorsed same-sex marriage, neither 9f the three will likely seek elected office again. Also, while Schumer, Corzine and Dodd still hold office, they represent states that have already legalized same-sex marriage (Connecticut) or that will likely do so in the near future (New York and New Jersey).

Question: Will President Obama change course and support same-sex marriage once he is comfortably beyond the control of voters?


liberal dissent said...

I'm assuming he just meant that traditionally issues dealing with marriage, divorce, children, etc. fit squarely in the domain of state law. That's one of the many (bad) things about DOMA, it pushed a state issue into the federal sphere, and justified it by portraying it as a way to protect state's rights.

andgarden said...

In my view the President will have to change his position before 2012.

Alinosof said...

So it's alright for people like senators Schumer and Gillibrand who after opposing gay marriage for a long time have changed their mind and now support it but when B.Clinton does the same it's reprehensible? Why don't you tell your readers how many democrats voted for DOMA back in the 90s and which one of them now support gay marriage? People suffering from CDS never cease to amaze me with their reasoning.

Darren Lenard Hutchinson said...

Liberal Dissent: Certainly family law is within the function of states, but as you know, equal protection and due process under the federal constitution are not. States can interpret their own constitutions to permit or deny same-sex marriage. When a state denies a "right" or "discriminates," then a question of federal constitutional law exists.

I am trying to rip the mask off of the new moderate argument which favors same-sex marrige but which says it is up to each state. If the denial of same-sex marriage violates the constitution, then this argument is simply a cozy political compromise. If liberals followed this approach on all issues, then the national government and courts would not have any role with respect to abortion or racial discrimination in public schools.

Public schools are state concerns as well -- yet, federal constitutional law and statutes prohibit (explicit and intentional and undeniable) racial segregation. Medicine is a state issue too -- but abortion rights are federalized.

Darren Lenard Hutchinson said...

Andgarden: I would not bet on that (but then again, I'm not betting against it either).

Alinisof: I really do not understand the point of your criticism. I never said that Clinton's new position on same-sex marriage is "reprehensible" (or anything close to this). And I never said that Shumer's position was "alright." You are completely missing the point.

Instead, I am making the observation that politicians who are coming out supporting same-sex marriage -- which most Americans oppose -- tend to occupy a relative safe political space, either because they are no longer seeking elective office (like Clinton) or because they are from states where same-sex marriage exists or will soon exist (like Schumer). Rather than describing Clinton and Schumer as polar opposites (as you argue), I argue that they both are influenced by their own sense of safety with respect to the political process.

I have not taken a position (explicitly or otherwise) regarding the morality of these political calculations. I accept these types of consideratioins as a given.

Annie said...

He and hillary are in favor, but as politicians, they don't say so, now he's safe, so he's for it, and when she's out of the admin, she'll say it too. I

Anonymous said...

Dear Mr. Hutchinson: What no evaluation of SS's performance? Well, a headache will do that. For myself, it is a sore stomach from laughing so hard at the clumsy imitaiton of John "I'm just an umpire, folks, callin' 'em like I see 'em" Roberts. I understand Roberts is suing her for plagiarism, as is Clarence Thomas for ripping off his "confirmation conversion" act. Tomorrow promise many more laughs where that came from.

You write, "Medicine is a state issue too -- but abortion rights are federalized."

How well's that federalizing business worked out for abortion? It's been a running sore in American judicial life for thirty six years, not being accepted by a substantial proportion of the nation, utterly corrupting the courts to the point where Justices think an appointment is their personal property, hanging on to absurd ages, half the time scared to death they'll kick the bucket when the "wrong" Prez is in the White House, the other half of the time scared that that excuse is too flimsy to stand examination. Bah. Remember your Holmes: "The life of the law has not been logic; it has been experience." Experience is much messier than logic, but has a way of being accepted where logic is only accepted by the suckers who fall for it. This is why women's suffrage, the product of at least fifty years of struggle (likely more than that) yet has triumphed without reservation, while abortion is not. To be sure, abortion's flimsiness provides a "bloody shirt" for the feminist zanies who can pass neither a rabies nor an IQ test. Remember how they howled that Bush41 was outlawing abortion by appointing Souter? How accurate was that prophecy? Yet they continue to foam for the cameras every time one of the old gang on the Court is carried off to the glue factory.

Gay marriage is going the same way. I regard this prospect with gloom, interspersed with considerable exasperation at your continued efforts to pull the mask off my face. Ow, that's my left ear, sir! I think it would be in order to remember that you aren't pulling masks off anybody's face, but are writing words for publication in the hope of a) persuading those who disagree with you and b) failing that, showing the world where you stand.

Honorable goals both, but let's not bamboozle ourselves into thinking we are generals in the army of Social Justice (TM.) John Wayne is a fine actor. He's not a soldier. That is a large part of SS's trouble. Swelled head, lack of character, and enough power without accountability---they all combined to bring her to her present ditch. How she must have seethed at having to imitate the despised John Roberts, particularly knowing that no one believed her performance. For those sleepyheads who did believe her, ask yourself who's she kidding a) The One when she gurgled about how empathetic she was, or b) the television audience with her solemn quackery about "just the facts and law, ma'am" while Roberts hollered "That's my line!"

Sincerely yours,
Gregory Koster
(Not of CUNY)

Darren Lenard Hutchinson said...

Annie: I agree.
Greg: I would never expect you to appreciate anything that Sotomayor does. Also, although you go on and on about the perils of abortion as a federal right, this fact remains beyond dispute: It is still a federal right!

At the time of Roe, states were beginning to place all types of restraints on abortion. Remember, the Texas law banned abortion altogether - except for cases where the mother's LIFE (as opposed to health) was at issue.

By contrast, under Roe/Casey, women can have abortions pre-viability without any substantial regulation from the state, and post-viability (which is still only the third-trimester), they can have abortions, if necessary to protect their life or health. So, Roe is a pretty great accomplishment from where I am sitting. I think you view it as a big accomplishment too -- which is why you are so angry about it.

I would also note that politics is not for people with weak hearts. The right recognized in Roe did not come from judicial decree. It was the product of sustained social movement activity, etc. This is basically how the Court has operated historically. States, social movements, and the other branches of the federal government strongly influence judicial opinions.

To me, that means that the country would have remained divided over abortion with or without Roe. Take the issue of gay rights as a good analogy. The Court made a horrible decision in Bowers (which went the opposite direction of Roe), and this inflammed advocates of GLBT rights, just as Roe emboldened opponents of GLBT equality. Following Roe, GLBT activists went to state and local governments and secured many rights that the Court refused to recognize in Bowers. They changed the landscape of the law for GLBT individuals, which created space for more liberal rulings in Lawrence and Romer.

It is very simplistic and and factually inaccurate to argue that judicial opinions alone create political conflicts. The opinions can become SYMBOLS used to fight a battle (Brown, Roe, Bowers), but they do not create the divisions. So I think that you and Ginsburg are just wrong on this issue.

Anonymous said...

Dear Mr. Hutchinson: Of course, abortion is a federal right, just as segregation, another judicially proclaimed right, was from 1896 to 1954. My argument is not that it is a right, but about the wisdom of how it was granted.
You write: "At the time of Roe, states were beginning to place all types of restraints on abortion."

Sir, you fib like an archbishop. You, not SS, should be providing the low comedy for the Judiciary Committee these days. Let me introduce you to the National Abortion Federation, not exactly a hotbed of get-rid-of-ROE sentiment, viz.:

"Liberalization of Abortion Laws

Between 1967 and 1973 one-third of the states liberalized or repealed their criminal abortion laws."

One-third is not a majority of states. There may also have been states, maybe Texas, going the other way. But we need some proof of your assertion of tightening. I have proved that there was a substantial current toward much looser abortion laws. The historical precedent the 1967-73 state law revisions remind me of is the 1893-1918 women's suffrage law revisions. The current was moving toward women's suffrage. It finally came about the way constitutional changes does most durably: by the voice of the people acting through the arduous Article V amendment procedure. Article V takes a long time, breaks many hearts, and often dooms worthy causes (the anti-child labor amendments of the 1920s.)

But when achieved, such change sticks. Who doubts the validity of women's suffrage today? That can't be said of abortion. Sure, the Supremes rammed it down the citizenry's throats, just as Roger Taney&Co. did with DRED SCOTT, making it was a FEDERAL RIGHT by God!!!! just as abortion is. How'd DRED SCOTT & ROE work out?Enduring bitterness. The worst reuslt of ROE, to my mind, is that it has polarized the nation to the extent that Article V is no longer possible, as it was with women's suffrage. As you don't know well enough, the opposition to women's suffrage was stout and fierce. But eventually, it got done. In my view, that is no longer possible with abortion. Neither side could get an amendment through nationally, thanks to the polarizing of ROE. Gay marriage may be heading the same way, thanks to those on the left whose favorite Kingsley Amis novel is I WANT IT NOW, compounded by the all-too-common notion in the blogosphere, left and right, that bloggers are generals fighting for Social Justice (TM.)

Meanwhile SS continues her clowning, grubbing for votes. I add at once, that she is following precedent, e.g. Clarence "I never thought about abortion before, Senator Leahy" Thomas or John "A judge is just an umpire" Roberts. I am not the only one to think this. See e.g. L. Michael Seidman here

Specifically this post:

"Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith."

Don't know who Seidman is? That's all right, Mr. Hutchinson has inside dope on what a rabid right winger he is...

I say continue the SS hearings for years. The popcorn and crackerjack sales alone will pull the nation out of recession.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

You and Seidman need a reality check. Of course the law is indeterminate. Given your wild posts on "judicial activism," the fact that you admit this is stunning.

Anyway, the fact that the law is indeterminate does not mean that the Senators or the public appreciate such nuances. When Orrin Hatch and the gang start rambling and spewing about not putting emotions above the law, they only invite her to say she is "applying the law." That is indeed what Roberts said. Of course, when Roberts said it, it made him a smart white guy, beating the Democrats. When Sotomayor says it, it makes her a "dumb" Latina or liar. Applying "the law" means ruling in the context of indeterminacy. I think her answer fed the Republicans the only response they deserve.

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