A small point, but I don't think the "Hawaii's Supreme Court declared that gay marriage was required under that state's constitution" -- although a trial court below it did.

In Baehr, Hawaii's Supreme Court held that by denying same-sex couples access to marriage licenses the state had regulated them "on the basis of the applicant's sex." The state created a "sex-based classification" by only giving license to couples comprised of a male and a female. In other words, the state was relying on the plaintiffs' sex and would have allowed the plaintiffs to marry "but for" the biological sex of one partner.

Since sex classifications triggered strict scrutiny under the Hawaiian Constitution, the court remanded the case for a factual determination of whether the state could prove that its classification was narrowly tailored to further a compelling state interest.

On remand, the trial court found that the state did not demonstrate a compelling interest. This decision was stayed pending a second appeal to the Hawaii Supreme Court, which did not rule on the issue. A referendum then challenged the court's action. On November 3, 1998, voters in Hawaii approved a legislative act to prohibit same-sex marriages in the state.

Did Hawaii's Supreme Court ever rule on the appeal or was it mooted by the referendum?

Unfortunately, the judicial activism of state courts have repeatedly set back that movement in political terms and in an anti-democratic way overstepped the "leftwing of the possible." The country wasn't ready when Hawaii's Supreme Court declared that gay marriage was required under that state's constitution.

I wonder if the country was ready in 1954 when the US Supreme Court declared that "separate but equal" was forbidden under the US Constitution.

Nathan, this is at least the second time I remember that you've said it's OK for gay people not to have equal rights for some undetermined future period so it can help elect Democratic candidates (the previous instance being Lawrence v. Texas). How long do you expect gay people to wait to match your definition of "pragmatism?"

Matt- The nation was absolutely ready for BROWN V. BOARD-- I wrote an extensive column on this here.

And Matt, you can ignore what I said, but I never said it was "OK" for gay people not to have equal rights or that gay rights should be sacrificed to elect anyone. I said that judicial decisions undermine gay rights itself. You may think that noble words in a judicial decision is better than actual changes in law that make changes in actual peoples lives-- but I don't.

I want real gains in gay rights as quickly and extensively as possible-- and I think judicial activism leads to fewer rights for gays (and other people) and a longer time before we as a nation achieve equality.

I don't mind candidates saying that gay marriage should be up to the states. But speaking as someone from Massachusetts, I was very disappointed by John Kerry's support for the amendment. Up to this point he was keeping his mouth shut on the amendment, and while I didn't expect him to embrace gay marriage, I did hope that he would continue to say "It's a state issue," and not take a position for or against it.

Speaking of which, isn't it a bit absurd that everyone is discussing gay marriage in the context of a presidential election? Last I cheched, the president gets neither vote nor veto on any constitutional amendment.

I strongly disagree with your position here. The biggest problem Dem candidates have had of late is the perception that they waffle on key issues and really don't have a strong, moral position. Clinton talked people power but delivered corporate power. Gore simply refused to take strong anti-Bush positions and nearly lost the election because of it.

"Gay marriage" is an ethical and Constitutional issue. Look how Edwards got tripped up on this issue yesterday. What we need is for Kerry and Edwards to say "Look folks, this is an issue of human rights, not a religious issue. You can feel free to believe what you want about homosexuality, but it is un-American to deny another human being the same rights you freely exercise. Homosexual marriage is not a threat to the stability of American family life - the real threat is the Bush cheap-labor economy that is driving down wages and exporting jobs. The real threat is the capture of our democracy by corporations who have no morals other than their bottom line and through their cronies in Washington are draining the Treasury dry and trying to send the bill to America's elderly through cuts in Social Security."

On the other hand, Nathan, if the MA court decision encouraged what happened in San Francisco, there is an aspect of "judicial activism" that moved the debate forward in a positive way. There are people who were inflamed by those marriages, but there are also people that saw silliness of what they were scared of. You didn't see leather daddies waiting in line, you saw all types of gay couples, including a lesbian pair that had been together for 50 years. It hasn't tipped the scale in favor of gay marriage yet, but these very human stories are going to pull some people in the middle over to "our" side, maybe in time for November.

I'm also suspicious that Kerry, or any other Democrat, will ever be viewed as anything but pro-gay by the hard right. It's been the "gay" party for some time.

And hell, a well-written (read: not didactic or proselytizing) episode of Will & Grace could win some people over.

Can I call Kerry a bigot for not supporting equal rights for gays?

Kerry did not have to say anything about the Massachusetts legislature's wrangling. But he did, and he supported changing a constitution. If he supports it in his state, why not for the whole country?

As Charley said above, Edwards couldn't even answer the most basic questions about his position: 1) why can't civil unions and marriages be called the same thing and 2) why is this a states issue. I doubt Kerry could either.

Until one of them figures out how to explain their positions with some reasoning instead of just "well, that's what I think," or quoting definitions, they will look like wafflers, like they are trying to avoid an issue that isn't going to be able to be avoided.

Either could take Dean's tack and emphasize that the important thing is equal rights. However, to do that they would also have to leave open the possibility of gay marriage (as I think Dean did) if separate turns out to be unequal. Neither has shown any willingness to do that. Neither has given any principled justification for his hardline halfway stand. And until one of them figures out how to do that, it will hurt him.

One more comment:

As far as practical politics goes, Kerry's statement also does not make sense.

If polls are correct, two thirds of the electorate cares to some extent about this issue and one third just doesn't want to talk about it.

If Kerry's goal is to beat Bush, he needs to have an energetic base to work for him. The third angrily opposed to gay marriage isn't going to vote for him anyway. The third which supports gay marriage is less than thrilled with him about this and it will turn some of them off from working energetically for him.

I don't see any data which shows that the middle third is going to make up their mind in this election based on gay marriage stances.

Pragmatically, every issue on the left is better if Bush leaves power. Kerry's comments don't help him accomplish that, and by making him look like a waffler, they hurt.

One more comment:

As far as practical politics goes, Kerry's statement also does not make sense.

If polls are correct, two thirds of the electorate cares to some extent about this issue and one third just doesn't want to talk about it.

If Kerry's goal is to beat Bush, he needs to have an energetic base to work for him. The third angrily opposed to gay marriage isn't going to vote for him anyway. The third which supports gay marriage is less than thrilled with him about this and it will turn some of them off from working energetically for him.

I don't see any data which shows that the middle third is going to make up their mind in this election based on gay marriage stances.

Pragmatically, every issue on the left is better if Bush leaves power. Kerry's comments don't help him accomplish that, and by making him look like a waffler, they hurt.

It's the other way around. If Kerry insists on being for civil unions and against gay marriage, he risks losing. Bush has a clear cut case and Kerry is seen as waffling - which is exactly what he is doing.

If he comes out squarely for equal rights for gay people, Kerry has a strong case. Most people who are against gay marriage have not given it much thought. When they learn the facts they will be for gay marriage and against what I call the Anti-Civil Rights Amendment.

If this IS a culture war -- even if it is, as some say, one cynically fanned by Karl Rove -- then I'm not happy with saying that my LGBT brothers and sisters are acceptable losses in the war.

If Bush is not fought here and now, discrimination against gays will not only continue to happen (as it does now, as it did under Clinton, etc), but it will be ENSHRINED in the Constitution.

The stakes are pretty damn high. Defeating Bush AND getting equal rights for queers are not at all incompatible goals. They are complementary, they are both necessary, and the dichotomy is false.

--Kynn

Kynn-- no one is arguing against fighting the FMA in the Constitution. But to repeat, my position is that depending on judicial decisions to advance gay rights is bad FOR GAY RIGHTS. It means that gains are dependent on elite forces in the judiciary, rather than broad-based democratic support.

I believe that advancing ALL progressive goals are better done through democratic mobilization. Short-term wins in the courts often mean longer term setbacks-- which is what the Mass. court decision is threatening to inflict.

This year it's about winning elections, not moral purity. (then again, when you have minimal political capital as Democrats do, when is it *ever* about moral rectitude?)

If it comes down to choosing between Kerry's political judgement and the political judgement of blogosphere posters, armchair political masters all, there's no competition.

The self-rightous arrogance at Kos and elswhere on the web is ridiculous, though this is probably coming from the same "Dean Is God" crowd that somehow believes it's representative of the US public, but in reality is the tiniest of fringe slices.

All right, I'll play the dunderhead/whipping boy here. What exactly is the difference between civil unions and "gay marriage" in terms of actually securing the personal private and civic rights of those effected? And isn't the notion of "gay marriage" a rather absurdly reactionary and sentimental notion, when it comes the notion of accepting the alternatives, alterity and variability involved in human sexual relations? What exactly is lost without gay marriage, but with civil unions? Is it merely an element of pure self-realization and complete public confirmation, both of which are actually, existentially impossible notions? Human sexuality cuts deep to the bone, which is why it is and ought to be a private matter, protected as such. There is no reason per se why some people are attracted to homosexual practices and others are revulsed by them, but in the real world both dispositions are to be found and both have to be accomodated and accepted within the political realm, as equally valid or invalid, for as Hannah Arendt so usefully emphasized, genuine politics is a realm of "plurality", in which there are always others of much different and even deeply opposing orientations that have to be encountered. Isn't "gay marriage" a piece of sheer liberal piety, whereby soi-disant liberals can prove to themselves their superior virtue, in this case "tolerance", while, of course, simultaneously separating themselve from the hoi polloi and belying their claim? It's not as if, without gay marriage, homosexuals would be lynched. (And, yes, we should be far more concerned about lynching and other violence against homosexuals.) Claiming that "gay marriage" is simply the logical extension and culmination of the movement for civil rights ignores the difference between behavioral choices and communities of affinity and natal deprivation and historical communities of fate and manages to elide any recognition as to how badly the historic movement for the advancement of excluded minority groups into full economic and civic participation has stalled and failed. Yes, there is that matter of establishing priorities in negotiating popular coalitions to fight for the commons needs and rights of people against the dominant power apparatus that has been driving them into an increasingly dire condition. Only liberals, who have nothing to lose but their tax deductions, could believe that it is especially valiant to lead with one's chin. What possible good is a vanguard that leads by systematically running off in the opposite direction from the ignorant and foolish masses?

But what do I know? I guess I just one of those benighted "left-wing conservatives" that Judith Butler was trying to rally her minions against a few tears back, some one with thoroughly primitive beliefs as to the real world actually existing and mattering, not least because there are actually many people desperately implicated in its workings, and who, through a lack of understanding of higher theory, thinks that such implications in the workings of the "real" world are not to be addressed, remedied, nor waved away by selective flourishes of purely nominalistic rhetoric.

john halasz,

i thinkem:

there are two real reasons for supporting gay marriage. 1: gay marriage is a symbol of greater acceptance of alternative lifestyles; 2: gay marriage pushes conservatives into a losing position like wanting to amend the constitution;

the first reason is pretty obvious. the second reason is not so obvious but probably more important. people like nathan newman miss the second reason b/c they overrate the importance of the masses. the educated class supported the bush tax plan and narrowly supported the iraq war but they heavily oppose amending the constitution;

Nathan,

I understand your stance against what you call "judicial activism". [That's a loaded phrase which, so far as I can tell, has no independent meaning... so, like "partial-birth abortion", I don't use it.]

It's all well and good to argue that the Supreme Judicial Court of Massachusetts could end up setting back the cause of gay rights with it's decision. But you end up criticizing the decision on the basis of factors which weren't even part of the equation. Your consequentialist criticism ignores the substantive issues involved in the decision.

There's no such thing as judicial activism. Sometimes, judges strike down laws because they believe that those laws violate the Constitution. That's their job. And if it ends up having negative consequences down the road in terms of progressive political interests (the way Roe v. Wade arguably has, for instance), that's not their job.

I understand that you prefer progressive social change to come through the legislative process rather than the judicial process, and strategically, that preference is well-founded. But it is simply mistaken to suggest (through the use of loaded terms like "judicial activism") that these judges are doing anything inappropriate or wrong. They're not.

hra:

Normalizing homosexuality through marriage is an acceptance of "alternative lifestyles"? Actually, if one wants to lead an "alternative lifestyle", I think one should have the courage of one's convictions and not necessarily crave acceptance. A great many people have to work for their living under precarious conditions for inadequate wages and can not afford to consume an "alternative lifestyle". But that is not a human rights issue. 2 million people are currently incarcerated in this country, serving sentences that have been steadily lengthened, and the vast majority of them are neither murderers, nor rapists, nor corporate swindlers. But they're just criminals. And besides, it helps to keep down the unemployment rate and it is an alternative lifestyle. But I digress: I forgot that uneducated people don't count- not enough fingers and toes, I guess.

I was struck, reading in the blogosphere, how it was the most moderate, tepid, though highly politicized, sorts of liberals- Marshall, Kos and the like- who think gay marriage is such an important issue and such a great idea. Then there's Sullivan, for whom it is a deal breaker with the Bushies. No, it's just a Rovian trap, foisted on us by a few dogmatic judges and some activist showboaters. The only good thing about it is that Dr. Rove and Bushiestein always overplay their hand and people will notice that they've just dealt themselves a fifth ace. Spinning gay marriage as a great strategy is just spinning us into the ground. The issue simply provokes the ambivalence of many people, offering another wedge issue by which to disrupt the forging of an effective oppositional consensus, while, were it to be achieved, it would, in fact, offer very little by way of real gains. (Symbolic victories are often Pyrrhic ones.) Besides, it is precisely civil unions that would appeal or be acceptable to independent centrists, while provoking the excessive rage of the religious right, thereby isolating it.

I live in Vermont and work for inadequate wages. From talking with my co-workers at the time, I know just how difficult dealing with even civil unions can be. Yes, overcoming the right-wing hegemony really is a matter of evoking, mobilizing and refining just the right sort of resentment.

john halasz,

i agree with a lot of what you say except that i don't think it contradicts what i said.

1) i agree that "if one wants to lead an 'alternative lifestyle', ... one should have the courage of one's convictions and not necessarily crave acceptance". but i still they should be accepted if they aren't hurting anyone.

2) i agree that gay marriage is a wedge issue, but i believe it is a wedge issue that works in our favor. amending the constitution, which is the position we have pushed the republicans into, is hugely unpopular with the educated classes.

3) when i said that masses do not matter as much as nathan newman thinks they matter i was making a descriptive statement not a normative statement.

I just got through with listening to an interview with John Waters on "Fresh Air". At the end, he was asked what he thought about gay marriage. He responded by saying that he came from a generation of gay men for whom two of the best this about gayness were that you didn't have to get married and you didn't have to have children. But now gays are having more children than the Catholics. So it's not such a bad thing. But it's something that they will use against the Democrats, so we have to be careful about that. And then he add, as for gays in the military, he's always been in favor of an all-lesbian army and that they would win any war we would choose to fight!

Drew- Judicial activism has a simple meaning-- substituting the judge's opinion for the democratically elected legislature. You can like judicial activism or dislike it, but it's a simple concept.

And yes, I am against almost all of it, which leaves me disagreeing with most liberals AND conservatives, who like judicial activism for their own causes.

I've written a lot about this here so check out the various articles for my broader opinions on the subject.

Thanks for the link, Nathan, but I've been following your comments on this topic for some time.

And I still don't get it. If it is in every instance wrong for a court to overthrow a law passed by a elected legislature, than how do we give force to the Constitution? If Congress passed a law tomorrow that re-instituted slavery, I'm sure you and I would both agree in denouncing this law as unconstitutional. But when the Supreme Court struck down thatlaw, I would celebrate, and you would condemn their judicial activism.

I'll never understand that.

Under your definition of judicial activism, I believe that there is not one (nor has there ever been one) judge who is not an activist. I respectfully submit that this fact, if true (and it's open to challenge), argues strongly for the revision of your definition.

Who will enforce the Constitution?

The people. If politicians violate rights, they should be thrown out of office. Will the people make mistakes? Of course, but then so has the Supreme Court far more often in American history.

It was the Supreme Court that wrote DRED SCOTT which extended slavery to territories that Congress had banned it.

It was the Supreme Court after the Civil War that struck down civil rights legislation and doomed blacks in the South to disenfranchisement and segregation, despite federal laws that banned such practices but were made invalid by the Court.

It was the Supreme Court that overturned laws banning child labor and subverted a host of other laws meant to protect the rights of the poor and economically weak.

The Warren Court being better than the elected branch on some racial and civil liberties issue is a historic anomoly.

Today, we are back to a Rehnquist Court that subverts democratically approved affirmative action plans, overturns the Violence Against Women Act, guts the Americans With Disabilities Act, and has a track record far worse than Congress on discrimination issues.

So why would I want a Supreme Court to act as a "check" on Congress, when they make things worse. I'll depend on the voters-- they have a far better track record than the Court.

Ok, I can agree with all of that. You make a convincing case on the history of "judicial activism", and I can agree that, for the majority of Amerian history, it has been a force against progressive change. On my blog, I recently discussed and lauded a recently proposed Civil Rights Bill which would effectively overturn several recent SCOTUS decisions which have gutted the legal force of the Civil Rights Act of 1964. So, I'm with you on that.

But that doesn't translate, for me, into a principled stand against "judicial activism". The act of judges interpreting or overruling legislation is part and parcel of what judges do. It was not always so, but it is so today. It was a tool that can be well-used or badly-used.

When a court recognizes that a discriminatory law conflicts with the Constitution, and strikes down that law, I will agree and celebrate. I might be concerned, as you are, that this move might create a negative response from the legislature, and I will oppose that response. But I won't condemn the initial decision if I believe it is right.

On the particular issue of gay marriage, it is, in my view, as yet unclear whether the Massachusetts decision is, pragmatically speaking, good or bad. But it's right, and there's something to be said for that.

First women had to fight for their rights. African-Americans also did the same. Now gays are seeing some of the same type of issues and are dealing with the unequalism in history. It is all a matter of maturity growth and time for the U.S. to understand it is wrong to ban gay marriage. Where does it affect someone of not a gay lifestyle?

First women had to fight for their rights. African-Americans also did the same. Now gays are seeing some of the same type of issues and are dealing with the unequalism in history. It is all a matter of maturity growth and time for the U.S. to understand it is wrong to ban gay marriage. Where does it affect someone of not a gay lifestyle?

First women had to fight for their rights. African-Americans also did the same. Now gays are seeing some of the same type of issues and are dealing with the unequalism in history. It is all a matter of maturity growth and time for the U.S. to understand it is wrong to ban gay marriage. Where does it affect someone of not a gay lifestyle?

First women had to fight for their rights. African-Americans also did the same. Now gays are seeing some of the same type of issues and are dealing with the unequalism in history. It is all a matter of maturity growth and time for the U.S. to understand it is wrong to ban gay marriage. Where does it affect someone of not a gay lifestyle?

First women had to fight for their rights. African-Americans also did the same. Now gays are seeing some of the same type of issues and are dealing with the unequalism in history. It is all a matter of maturity growth and time for the U.S. to understand it is wrong to ban gay marriage. Where does it affect someone of not a gay lifestyle?