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Summoning a Hobgoblin

July 1st, 2008 · 8 Comments

Ramesh Ponnuru writes:

[Barack Obama] says he opposes [gay marriage]. But he also thinks that a constitutional amendment in California to block it is “divisive and discriminatory.” I think the only way to square these positions would be for Obama to say that he opposes same-sex marriage as a religious or moral matter, but supports it as public policy. He is, that is, “personally opposed.” But I don’t know whether Obama actually takes that position, or is simply muddled. (The other possibility, of course, is that I am wrong and there is some other way to make these views consistent.)

This actually doesn’t seem all that hard. You could hold any one of a handful of closely related views that look roughly like this: The (federal/state) (legislature/courts) should not impose gay marriage, but given that a state’s supreme court has determined a right gay marriage follows from general guarantees in the state constitution providing for equal protection and a right to marry, it would be “divisive and discriminatory” to write a specific amendment carving out an exemption for gay couples.

As a very loose analogy, you can consider the position I think a fair number of people take on something like flag burning: They don’t like it, and they might be perfectly happy to have statutes banning it. However, given that the Supreme Court has determined that flag burning is a form of expression protected by the First Amendment, amending the Constitution to create exceptions in the First Amendment seems like a bad idea to them. Now, this isn’t quite my own position, since I think flag burning, like any number of other forms of offensive expression, ought to be protected. That said, if the Supreme Court had decided, on fairly narrow grounds, that flag burning fell into some recognized category of non-protected speech, I don’t know that I’d consider this an intolerable and crippling blow to our expressive rights, even though I’d disagree with the outcome. I would find it far more disturbing if we set a precedent that when the Court rules to protect speech that enough Americans find outrageous, we’ll have a big partisan push to change the Constitution. The underlying idea here is that, important as the case by case determination of the scope of certain fundamental rights is, what’s even more important is the structural principle that these determinations should not be a popularity contest, and ought to be isolated from cyclical politics to a great extent.

I think that’s probably the reasoning that best accounts for the language Obama used, though I can think of a slightly different route to a similar conclusion. That is, you might think we shouldn’t grant marriage rights to gay couples where they don’t exist, but oppose taking those rights away in places where they’ve already been granted, and especially where gay couples have already begun to marry.

Tags: Law · Sexual Politics


       

 

8 responses so far ↓

  • 1 Kevin B. O'Reilly // Jul 1, 2008 at 10:19 pm

    Nice try, Julesy. Why are you wasting so much breath trying to defend this two-faced jerk?

    The *simplest* explanation is that Obama doesn’t want to do anything that would make California a competitive state in November, even if it means, er, complicating his efforts to appeal to the majority of Americans who oppose gay marriage.

  • 2 Tybalt // Jul 1, 2008 at 10:44 pm

    How is a constitutional amendment to block gay marriage not discriminatory? It’s discriminatory on its face.

    Plus it’s obviously divisive (both the marriage ruling itself and the amendment to try to block it).

    The comment is trivially true.

    I realize that a modern Republican, will usually thirst to prohibit by law anything that is not mandatory by law, but rational people permit themselves the luxury of allowing the courts to do what they are supposed to do, and interpret the freaking law.

  • 3 Tybalt // Jul 1, 2008 at 10:48 pm

    Actually, Julian, I think that’s an easier way of expressing the view that Obama holds (one that a lot of us who are legal/constitutional scholars share). That there is no need for legislators to run pell-mell into constitutional amendments every time there is a court ruling that they do not like.

  • 4 Julian Sanchez // Jul 2, 2008 at 1:38 am

    Kevin-
    Short of Obama being caught on film giving Osama bin Laden a rimjob–and even that might cut both ways–nothing will make California a competitive state in November. Kerry took a more anti–gay marriage stance in 2004 and still won it by a million votes.

    Tybalt-
    I thought that was more or less what I was trying to say, albeit a bit more windily.

  • 5 Kevin B. O'Reilly // Jul 2, 2008 at 11:07 am

    You’re right about California, but I still think it’s clear you’re giving the guy too much credit. He’s trying to have his cake and eat it too. If he really opposes gay marriage, he shouldn’t have any problem with a vote of the people to outlaw it. I know I’d have no problem with a constitutional amendment to, for example, end the income tax.

    By the way, did you all hear there’s a video showing Obama giving Osama bin Laden a rimjob?! Now, I haven’t seen it yet, but I heard from a friend who says he has and just watch out …

  • 6 southpaw // Jul 2, 2008 at 7:09 pm

    I think Kevin’s probably right that this is just political pragmatism. I also think there might be a way of rationalizing it in which Obama opposes including gays in the definition of Christian marriage but doesn’t want the state in the business of defining marriage at all. I tried to explain it here, but it all ended in tears. So I leave you with the cliff’s notes.

    Also, if this video of McCain giving Hugo Chavez and Wesley Clark energetic rimjobs gets out, he may well lose Utah, his clear opposition to gay marriage notwithstanding.

  • 7 Elliander // Dec 12, 2008 at 5:19 am

    I think that was well written.

    Personally, I think that there are allot of views I would rather not have to hear (such as, for example, people using strong negative tones as seen in some of the other comments left here.) but there is a danger in trying to interfere with freedom. If it isn’t freedom for all, it’s not a free country at all.

    My personal views on Marriage as a whole is that it is a religious ideal. I think that the Government should not be involved at all in Marriage or Divorce, no matter the gender. People get Married because they love one another, and so they make a contract before their chosen deity to love and cherish one another. That’s the way it is, as it has been for thousands of years.

    But in our culture that has changed for a number of practical reasons. Such as Tax Filing, Insurance, and Age Restrictions to Protect Children. These have nothing to do with the Religion or the function of the Family or the Marriage as a whole.

    But the more the Government dictates about Marriage, the less Marriage really means. Now you can get Married before a Judge. No temple, no spiritual value, no Religion.

    What ever happened to the Seperation of Church and State? Is a Marriage part of Religion, or the Government?

    If it’s still of Religion, then leave the Government out of it. If a Preacher wishes to Marry Gays, that’s the choice of the Preacher. If he doesn’t want to, he should have the right to refuse to Marry them just the same.

    If it’s Government, then we have already lost the sanctity of Marriage and nothing anyone can do can soil it more.

    Speaking for myself, I fail to see the value in Government Marriage. If and when I choose to Marry, whoever that may be, I would not wish it to be before the Judge or Jury but before the Divine. That, even being between a man and a woman, I would choose not to have it legally recognized simply because I believe that the Government should have no right to the Sanctity of what would by my Marriage.

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