"Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
Rick Hasen (Election Law Blog) notes that "it seems very likely an initiative overturning the decision through a constitutional amendment will qualify and appear on the November ballot" (see here) and opines:
This helps John McCain because those conservative voters may not have come out in great numbers for him, but they will come out now to vote for this amendment, and they are more likely to vote for McCain than for the Democrat once they are already voting. That's not to say that California will go red, but it is to say that the Democratic nominee will have to devote more resources to this very expensive to campaign in state.
Related Posts (on one page):
- The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
- The California Legislature's Enactment of Same-Sex Marriage:
- "Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
- Congratulations to California Same-Sex Married Couples:
- The Slippery Slope to Same-Sex Marriage:
- California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
Not that this represents the rest of the state (I should know; I have relatives in the Central Valley), but Obama is more popular than Jesus in the Bay Area. No, really. I think there are literally more Obama supporters than Jesus supporters here. Dead serious.
Does anyone really believe this. While there may be a large number of people opposed to gay marriage, it has never appeared on a list of issues vital to a person as one of the top ten issues for voters
See Los Angeles Times/Bloomberg Poll. May 1-8, 2008. N=1,986 registered voters nationwide. MoE ± 3.
.
"What issue or problem do you consider the top priority for candidates running for president to address this election? Is it the war in Iraq, or protecting the country from terrorist attacks, or the economy, or education, or the environment, or health care issues, or illegal immigration, or other social issues, such as abortion and gay rights, or is there another issue?"
After the usual economy, the war, etc. there is no separate mention of same sex marriage at all except under other social issues, gay rights, which rates 2%.
Yes, this relates to what they think is important in the presidential campaign, but I strongly doubt that there are great numbers who would otherwise not vote who would make the effort to vote in a constitutional question for this reason alone.
Wince. Maybe "devote more resources to this state, which is very expensive to campaign in"? ""devote more resources to this state, where campaigning is very expensive"? or even "devote more resources to this very-expensive-to-campaign-in state."
Didn't you hear? They're one and the same: Obama is the second coming.
At least that's the impression I've been getting from some of his supporters....
Michigan had the gay marriage amendment on the ballot, and the pastors were walking the lines and booths ordering their flocks to vote with the GOP on the marriage thing.
(We did protest and get them moved outside that afternoon)
Even with that we only picked up about 400 extra votes for bush out of 35k (extra based on his votes the last cycle)
Anybody got a link to that pdf? I forgot to save it.
Well, Obama does have the dual advantages of being alive and an American citizen.
The Republican National Committee could spend their entire budget in California, with the Dems spending zero, and the Republicans still wouldn't win the state in November. I don't think the Republicans in Washington realize just how radioative the Republican brand is here.
I *am* concerned that if Sen. Obama gets forced to take a position on it, anything he says can only hurt him -- either he opposes it and loses support in blue states, or he endorses it and loses support in swing states.
Alan, the fact that voters didn't list gay marriage as an important concern earlier this month doesn't mean much. people weren't thinking about the issue then. They may well be thinking about it now because the decision, news coverage and campaigns will make it an issue.
But in our current "winner take all" system, this ruling will do nothing for McCain.
Obama's already come out against gay marriage --- and against an anti-SSM amendment to the US constitution --- so he can't do much new harm to himself in either direction there.
If he's asked about the referendum specifically, I suspect he'll just say that it's a matter for the voters to decide.
As for California, it depends on how the socially conservative Hispanic community breaks. They didn't vote for Obama in the primary.
God is an American. Everybody knows that.
This is literally true but misses an important indirect effect. Despite the fact that the total popular vote is a misleading and meaningless statistic, it does seem to have emotional value in US politics. Conservatives coming to vote in CA who would not have come otherwise will not change the electoral college vote, but will affect perception of the election results by changing the "total votes for McCain" number.
Of course, because many voters in many states have little incentive to come and vote, relying on "popular vote" totals (like Democrats did in 2000) is stupid. But it is done nevertheless.
Say, hasn't Obama taken a position on that issue during the campaign...?
you appear to be confused. this is obama we're talking about. he can simultaneously take completely contradictory positions on any subject he'd like with no negative effects at all.
MXE,
Obama will have to take a position on this case. Assuming he supports it, he will indeed maintain his divine status in the Bay Area, and California is safe. But supporting this case will hurt Obama in many other states, possibly costing him Ohio, for example. Alternatively, if Obama criticizes this speech, it will piss off the Bay Area.
Personally, I bet Obama does a 'criticize with a wink and a nod' - just like his NAFTA position.
So the question is, should we as a society support or encourage this deviant behavior. In Western societies the birth rate is lower than replacement level, so encouraging homosexuality would be detrimental to society. If as gender studies advocates say, there are not two genders but a range that is flexible, then we should do what we can to discourage flexible members of society from deviating away from being child productive. In societies like China where overpopulation is a problem, perhaps homosexuality should be encouraged and, especially for men since female babies are being aborted at a higher rate and there is a surplus of men.
When people are born, say, without feet, we don’t say “Be crippled and proud” and let them crawl on the ground. We give them artificial limbs to help them be normal. Why is it we encourage gays to be deviant and proud instead of finding ways to help them be normal?
As Babe Ruth said when asked for his reaction to a new contract that would pay him more than the President of the United States, "I had a better year than he did."
He's already taken a position on it. He says states should be free to take their own position on the issue. That used to be the Republican position back when Republicans still believed in federalism. It's (at least nominally) still the Republican position today with respect to abortion.
Bush lost California 53%-41% in 2000, in the same election in which Prop 22 got 61% of the vote. McCain might get 45%, though that's doubtful. Son-of-22 will probably get at least 55%. Especially if blacks turn out in large numbers for Obama.
Well, then by your own logic it must be entirely defensible for gay people to legally marry and adopt children. For that is the means by which their crippling defect is overcome in practical terms. It is clearly preferable over gay men marrying women whom they don't love and bearing children in a coerced environment. If someone has a missing leg, we give them artificial limbs. As you said. But the limb is still fake; we don't reasonably expect it will ever be exactly like a real one.
Beyond that, what do you expect? You want to "discourage" an innate behavior with unrealistic solutions. That doesn't make sense. There's no Happy Pill that turns gay men straight, and "conversion" therapy is junk science.
Furthermore, I doubt you or anyone can prove that homosexuality has any measurable impact on the birth rate. Nor can you make an argument, from principle, that the government has a legitimate interest in controlling the birth rate with marriage laws. Generally where the birth rate is declining, it has to do with many other factors than marriage. So you are presenting a false dichotomy built around marriage as the choice, rather than discussing the actual policies that affect birth rate.
And on a final note, the ideal of "normalcy" as something that is "encouraged" by the government from the top-down is not befitting an open Western society. In fact, most government forays into enforcing a standard of "normalcy" were and are undertaken by the most barbaric regimes on this planet. Especially when genetics is used as the excuse for doing so.
Anything you don't like can be cast as "deviance" and thrown up to the powers-that-be to legislate it away. Doesn't make it right; never has been, never will be.
Have you heard that Obama's planning to publish a follow-up to JFK's (ghost-written) Profiles in Courage. The Obamster's working title is...
Profiles in Temporizing
"To hell with what everybody else thinks! If I don't vote 'Present' how will I be able to face myself in the mirror each morning?"--attributed to Barack Obama.
States should be free to take their own position on this subject. SCOTUS should not (and will not) review this ruling and the feds shouldn't do anything about it (though they shouldn't recognize CA SSM marriages against federal law either).
The fact that the federal government has no authority over this CA decision doesn't mean it shouldn't be an issue of public and political discourse around the country. Especially when courts often use "evolving standards" arguments (and decisions like this as evidence of such changes) to force changes in the law elsewhere.
Not so. Proposition 22 was on the ballot in the March, 2000 primary election. Election results are here.
Personally, I doubt it will matter. Folks have enough CPU power upstairs to mentally separate who they prefer for Prez from what they think about SSM in California, and they're totally untroubled by the thorny metaphysical issues of intellectual consistency that get lawyers' panties in such a twist.
That said, California is a big state, and it enters the imagination of much of the rest of the country -- especially the South -- as "That left coast craziness we sure hope ain't catchin'." If the news running up to Election Day is all about the California initiative, it might well motivate large chunks of culturally-conservative voters in other states -- particularly Southern pink states that Obama must flip (Florida?) -- to hold their nose and decide the risk of having a citified Hahvahd intellectual pick SCOTUS judges who are going to rummage around in their life for the next 40 years is just too damn high. This circus won't give California to McCain, but it could keep some Southern and Midwestern battleground states red.
No, it doesn't. There are bound to be plenty of "crossover" voters - Obama voters who also vote "yes" on the amendment, and McCain voters who also vote "no". I suspect that there will be a lot more of the former than of the latter, in which case the question becomes whether that's enough to overcome the Obama/"no" (and the handful of McCain/"no") voters.
Truth Seeker: In Western societies the birth rate is lower than replacement level, so encouraging homosexuality would be detrimental to society. If as gender studies advocates say, there are not two genders but a range that is flexible, then we should do what we can to discourage flexible members of society from deviating away from being child productive.
Methinks you're vastly overestimating the effect of homosexuality on Western birth rates. That they are lower than replacement level has a lot more to do with perfectly straight people not being "child productive" (for a variety of reasons that your proposal doesn't touch) than with homosexuality being accepted. Discouraging alternative sexualities would be a drop in the ocean toward that end.
In short, I was on the fence, but I think this decision has me going for McCain.
Nope due to DOMA, and if DOMA was repealed the way that the issue would be resolved is "conflict of laws," which has more bearing than the traditional full faith and credit issue you have been hearing about. The reason I requested anybody having the pdf earlier in this thread, is that the pdf deals with this very issue.
"It's about human dignity. It's about human rights. It's about time in California," San Francisco Mayor Gavin Newsom, pumping his fist in the air, told a roaring crowd at City Hall. "As California goes, so goes the rest of the nation. It's inevitable. This door's wide open now. It's going to happen, whether you like it or not."
He owes his election to the wealthy gay voting bloc which basically dominates SF politics, so this is understandable. When I hear "its going to happen, whether you like it or not" I hear a declaration of war on me. I don't hear someone trying to win me over (and I don't need to be won over, if gays want to marry, terrific, I don't care) I hear someone who needs a severe ass kicking. He could have easily struck a conciliatory note; but that's not what he or his supporters are about; they're about telling the rest of us how its going to be.
I hope McCain puts up a fight in California, and I think he will. His chances are slim, there's no question about that, but if he's a fighter, a maverick, then he's gotta go for it. You never know. Strangers things have happened. If he even comes remotely close to taking California he will win the election. And, in case anybody was wondering, the rest of the state, pretty rightly, hates San Francisco and San Francisco far-far-left politics.
I see a contradiction. If you don't care how things are going to be, then why do you care how things are going to be? Or is it the attitude that you find upsetting?
While I agree that the argument can't be won without a general level of humility and respect, forgive us for a little celebration. You know Newsom is right, just look at the national and international trend. 1/4 of the US population now lives in a State with civil unions or gay marriage, plus most of Europe, Canada, and South Africa. And yet, civilization is thriving.
"Whether you like it or not" -- are you the "you?" Because much of the opposition to gay equality comes from real-life haters and it is unrealistic to expect gay people to kiss their bigoted asses after a lifetime of derision, especially not today. You hear a declaration of war on you? Really? Did you not notice the culture warriors demonizing gays for the past few decades? You're the victim here? For someone who lives in SF, it doesn't seem like you've actually thought through what being a despised minority might actually entail.
Alas, no longer quite so despised. The horror.
Most of the country has the opposite scenario -- "suburban" vanilla gays who live in a sea of prejudice and discrimination.
Yay for us, and yay for them in due time.
For those who don't realize: Schwarzenegger would be considered a Democrat anywhere else in the country. Conservatives don't get too excited at the prospect of McCain in the White House.
The argument that *California's* equal protection clause prohibits discrimination on the basis of sexual orientation strikes me as being a strong one. Less strong, perhaps, is the assertion that there is no compelling state interest in discriminating in this case.
But ISTM that it's a debatable question, at least, and that coming to one conclusion is no more imperial overreach than coming to the other conclusion would be.
in case anybody was wondering, the rest of the state, pretty rightly, hates San Francisco and San Francisco far-far-left politics.
Even if that were the case--and it isn't--it doesn't seem to have any bearing on reaction to yesterday's decision.
The decision has been greeted warmly by some who live outside the San Francisco Bay area. Republican Governor Schwarzenegger, who lives in the Los Angeles area and has his office in Sacramento, has said he respects and will uphold the ruling and will not support the initiative effort to overturn the decision. Antonio Villaraigosa, mayor of the state's most populous city, applauded the decision. Reported the L.A. Times:
No. In fact, that quote most reminded me of the Bush administration's basic approach to dissenting voices in the run-up to the Iraq war.
Your wife sounds like a real lady. Reasoned, polite, articulate--and ever so tolerant of differing viewpoints. And you quote her with approval--you must be quite a guy yourself. Both of you are good spokespeople for the anti-gay viewpoint.
That kind of rhetoric is exactly the kind of thing which will decrease support for gay marriage by driving its supporters into the arms of its opponents.
It's also astonishingly rude.
Well, I didn't say he's an asshole and ought to have the shit beat out of him, did I? That would really be rude.
Given the probability of a tough battle against a constitutional amendment on the ballot this fall, the cause may be better served by some graciousness and humility than by spiking the proverbial ball in the endzone. Celebration needn't be obnoxious.
I'll just point to what Robert West said. Again. People like you and Newsom convince people like me and my wife that our support for gay marriage places us in poor company.
Karen England, who was on a radio panel with Prof. Volokh this morning, certainly struck me as being rather poor company.
Brett said he supported gay marriage. You accused him of being anti-gay because he disliked the antics of a politician who supports gay marriage.
Imputing political positions to someone *might* be reasonable when those positions can logically be inferred from what they have said, and do not contradict what they have said. However, the position you imputed cannot be logically inferred from what he said, and contradicts what he says.
By calling someone "anti-gay" who claims to support gay marriage, you are either (a) saying that supporting gay marriage isn't enough to make you not anti-gay, or (b) implicitly calling him a liar.
The second is astonishingly rude. The first is bizarre and demanding: if supporting gay marriage doesn't make you not anti-gay, what would?
I am invested in the cause Newsom champions. And his bad behavior made it marginally less likely that I'll continue to be.
Frankly, I thought the concept of "civil unions" was a good one--and if I had expressed that view 30 years ago, I would have been called a radical leftist. Today, I suspect some will brand me a homophobe for the exact same position.
With respect to federalism, I agree that it is a state issue--just as I believe abortion should be. Cornellian suggests that Senator Obama taking this position will insulate him, but I do not think so.
The question will arise when he is in a state that has passed state laws or constitutional amendments defining "marriage" as the union between a man and a woman--and whether he favors either repeal in those states or repeal of DOMA.
Oh, and I want to add my appreciation to Robert West, who has written a series of posts that are both thoughtful and respectful, and who has merely asked others to do the same.
It's an understandable reaction on the one hand. But I think it's somewhat self-defeating, and the kind of reaction that should be resisted, rather than championed. :)
Except for polygamy, of course.
There is, on the other hand, quite a lot that Newsom can say or do such that I'm no longer thrilled about giving of my time, money, and energy to whatever he's championing, even if I otherwise support it. Possibly that's self-defeating in the sense that ultimate victory takes marginally longer to achieve without my robust support than with it; on the other hand, if it helps to usher Newsom offstage and replace him with a leader who won't behave like an ass, then maybe the marginally-longer wait is worthwhile.
You are right about "except for polygamy." And polygamy, as a subset of marriage, has definitely been on the decline for centuries, Joseph Smith and Brigham Young notwithstanding. However, I am unaware of any culture prior to the 20th Century whose definition of "marriage" included the union of two people of the same sex.
Before you blow a gasket on this one, Robert (wow, you really are emotionally invested in this one, aren't you?), I apologize for suggesting (not accusing) Brett of being anti-gay. He has made some good comments here that convince me he isn't. He says he isn't. and I accept that.
I do not apologize for questioning the statement (attributed to Brett's wife and quoted here approvingly) that Newsome is an asshole and ought to have the shit beaten out of him because he wasn't sufficiently humble and gracious in speaking about the decision. That statement is, in my opinion, outrageous and intolerant, and it doesn't show sufficient humility and graciousness. OK, maybe Newsome is obnoxious. That doesn't make him an asshole, and it doesn't mean he should have the shit beaten out of him. A lot of gay people have actually had the shit beaten out of them--have even beaten to death--because anti-gay people (of whom Brett isn't one) believe this is an appropriate response to their way of life.
(Now I have apologized for suggesting Brett is anti-gay. Would he apologize for the statement he made about Newsome?)
Isn't the problem that marriage somehow ended up on the wrong side of the Church/State divide? If the government had only ever associated itself with civil union type questions, the additional spiritual component would be left as a battle within religion, where it belongs.
I don't see how polygamy is any sort of exception. Polygamy is one man engaging in simultaneous marriages with multiple women, all of which follow the "one man and one woman" definition.
Perhaps there's some form of polygamy with which I am not familiar (one of my grandmother-in-laws was a co-wife until her husband died). I can conceive of a polygamy that fuses wives into a single marriage, I suppose, and wouldn't be surprised to learn that Mormons operated that way.
Thank you!
Society has always called such committed couples that it approves of conceiving together "married". The church ceremony or religious ritual has always been mere trimming on top of the basic universal social function of assuring ethical conception of children. Same-sex conception is not ethical.
However, I can try to set your mind at ease by assuring you that there's zero liklihood that either of us would ever actually follow through on a momentary urge to reach through the television and throttle him. Or anyone else.
Except that "marriage" has been defined as I have done so even in countries where religion is actively suppressed. If North Korea, Cuba, or the PRC define marriage as something other than the union of a man and a woman, it would be news to me.
Neither am I. Though given our ignorance of many of those cultures, I'd hesitate to equate absence of evidence with evidence of absence.
One reason I'm skeptical of arguments in the form of "always been done that way before" is that the institution of marriage has changed in many ways over the centuries. Aside from polygamy, marriage traditionally was arranged; it often involved substantial age differences (generally an older man and a younger bride); the age of marriage has changed (no Romeos or Juliets these days); most people in, say, the Middle Ages never even underwent a marriage ceremony -- too expensive, no priest available; marriage was a sacrament for Catholics, not so for almost all Protestants; dower practices have changed; the rights of the parties inter se have changed; divorce is now widespread. Etc.
Like any other institution, marriage has changed over time. That's a good thing -- it allows us to keep the practice while adapting its form to our needs.
Google "berdache." Some Native American leaders had male wives.
And some people have the unmitigated gall to call same-sex marriage "un-American."
You mean like how Dick Cheney responded "So?" when asked about whether it matters that a majority of Americans are against the war in Iraq?
But what's to focus that energizing? In 2002, 2004 and 2006 there were a large number of state initiatives on the ballot banning gay marriage. But now the states where such initiatives are not already in place is growing rather few and far between (and consists mainly of soldily "blue" states). Moreover, there isn't enough time between now and November to get such initiatives on the ballot. So there's really nothing specific to draw righwtingers to the polls on this issue. And unlike 2004 and 2006 we have some really major issues capturing the bulk of public attention, like the bad economy and spiking gasoline prices. (also, note that anti-gay marriage initziives in 2006 did not derail the Democrat victory that year).