The pathological liars and shrill bigots of the Christian Right and the white supremacist far right fringe routinely rant about "judicial activism" and "despotic unelected judges" subverting "the will of the people." These elements want a tyranny by a simple majority with the rights of minorities, gay or straight, subject to the whims of the bigoted majority. Historically, each big advancement in civil rights has been via judicial action followed by a slow acceptance of the judicial legal precedent by the larger population. When slavery was ended, when interracial marriage bans were struck down, and when the Jim Crow laws were rendered invalid, the majority at the time OPPOSED the courses charted by the courts. In short, "majority rule" is an invitation to bigotry and the Christianists who so vehemently oppose marriage equality need to be called out and depicted as the modern day version of segregationists and racists. True, they will shriek and whine about the comparison, but if the shoe fits, it needs to be laced around their necks. Obsidian Wings has a column that looks at this historic reality. Here are some highlights:*
To step back, I think the judicial debates about gay marriage have a lot of parallels with the debates over race and the Warren Court. I’m summarizing (briefly) a ton of literature, so bear with me. But the upshot is that, at some point, neutral abstract principles can lose sight of reality.
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The legal debate about race goes something like this: In the 1950s and 60s, federal courts became much more aggressive in striking down racial discrimination. Brown v. Board is the most famous example of this development. The problem, though, is that it was very difficult to justify Brown (and some of its progeny) under existing precedent and methodologies. Critics argued (correctly, I think) that the courts often valued real-world consequences over “neutral principles.”
The legal debate about race goes something like this: In the 1950s and 60s, federal courts became much more aggressive in striking down racial discrimination. Brown v. Board is the most famous example of this development. The problem, though, is that it was very difficult to justify Brown (and some of its progeny) under existing precedent and methodologies. Critics argued (correctly, I think) that the courts often valued real-world consequences over “neutral principles.”
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But more generally, the Warren Court defenders saw all too clearly the realities of violent state-sanctioned discrimination. And they chose not to validate it – that is, they chose not to facilitate this regime by blessing it with constitutional approval. Neutral theories or no – people were getting lynched; people couldn’t vote. In short, they chose not to be on the wrong side of history.
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And for all the critiques of the Warren Court, it’s important to see the world as they saw it – through the lens of Jim Crow and George Wallace. The tragic reality of American racial discrimination overwhelmed the abstract logic of the Process camp. Once again, if your theories justify poll taxes, disenfranchisement, and anti-miscegenation laws, then maybe you need new theories.
And for all the critiques of the Warren Court, it’s important to see the world as they saw it – through the lens of Jim Crow and George Wallace. The tragic reality of American racial discrimination overwhelmed the abstract logic of the Process camp. Once again, if your theories justify poll taxes, disenfranchisement, and anti-miscegenation laws, then maybe you need new theories.
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The bottom line, then, is that the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology. But the injustice of American racial discrimination demanded a more aggressive response. The courts acted – and scholars later supplied these principles (things like anti-subordination, which called for scrutiny of laws discriminating against racial minorities).
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And that brings us to gay marriage. The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That's the million dollar question. And I say yes.
And that brings us to gay marriage. The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That's the million dollar question. And I say yes.
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That’s the reason I’m now comfortable with using courts. I’m not going to be on the wrong side of history on this. I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision. Indeed, with each passing year, the denial of this most basic of human dignities seems more inexcusable.
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The predecessors to the opponents of gay marriage equality were on the wrong side of history when it came to slavery, interracial marriage and the Jim Crow laws. They were wrong then and they are wrong now - which makes it all the more outrageous that black pastors have been co opted to oppose gay rights along side the descendants of the very folk who sought to keep blacks in slavery and later as second class citizens. One truly needs to know history to avoid being cynically used to oppress others.
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