Ok, I just lied. I said I didn’t care about the elections tonight, but what I meant is that I didn’t care about the races for governor of NJ or VA, or NYC mayor, or NYC-23 Rep. But I do care about the gay marriage ballot issue in Maine. Before tonight, never before had any popular referendum on gay marriage benefitted gays and lesbians. After tonight, that will still be true. While it’s not completely over, results here look as though gay marriage will lose by a 52-48 vote, echoing the same percentage that we had in California a year ago. And once again, I am frustrated that basic civil rights are decided by popular vote, that once again, the majority has decided to oppress a minority. A lot of people think it would be better for gay marriage to win by popular vote. Or, if not by popular vote, then by passing state laws. What people mean when they say this is they don’t want “activist judges” passing down edicts that will apply to the whole nation. But so what? As I’ve said before, “activist judge” is just an empty phrase used by people whenver they don’t like the outcome of a court case. When the Supreme Court outlawed bans on interracial marriage in the 1967 case Loving v Virginia, there were still laws in 20 states making it illegal. I am sure that in at least some of those states, popular votes would have weighed in to say that interracial marriage should remain illegal. I’m also certain that they whined about “activist judges” back then, too. The march of civil rights is unidirectional, even despite its setbacks. I know gay marriage is going to win over time, but I’ve basically decided that I would prefer to see it win by a US Supreme Court decision, and now. That case just might be Perry v Schwarzenegger, which is being argued by Ted Olsen and David Boies, who in Bush v Gore represented Bush and Gore, respectively.
Worth noting — in 1968, the year after Loving v. Virginia was decided, Gallup polled America on its opinion on gay marriage.
http://www.gallup.com/poll/28417/most-americans-approve-interracial-marriages.aspx
73% disapproved, while only 20% approved. Compared to the numbers for approval of same-sex marriage (around 55% diapprove-40% approve), the 1968 numbers appear far worse for the marriage equality advocate. In fact, one imagines that if we simply waited for popular referendum, we might still be waiting for the change today.
The remarkable thing about the Gallup data on interracial marriage is the drastic increase in approval long after the actual court ruling. That is to say, once people started SEEING interracial marriages, they began to become less uncomfortable with the notion.
[...] Linus mentioned Loving v. Virginia in his post about marriage equality, but I think it’s important to remember exactly what this remarkable case shows us about the power and importance of American jurisprudence. Read the words of Warren’s close of Loving’s majority opinion again. The Warren Court’s opinion of the essentiality of marriage as a fundamental human right stands as the most stark statement of the place marriage holds in our culture, sometimes to our detriment. It is also a statement of what is right in the face of what is popular, an often-difficult distinction to make. As I noted in my comment on Linus’ post, at the time of the ruling, 73% of Americans disapproved of interracial marriage, and that number would remain over 50% until fully 15 years after the ruling. (Keep in mind that this is much higher disapproval than current disapproval ratings of same-sex marriage.) [...]