Posts Tagged ‘gay rights’

William Saletan atSlate always has these big pseudo-scientific questions that he thinks are deeply thought-provoking but are actually pretty schmeh.

For example, he has a long-standing (and probably wrong) hypothesis about race-linked intelligence. (I have previously noted the goofiness of this “scientific” discovery here.)

Now Slate has two stories about a study finding that children of gay parents at a time when being gay and having children was/is maligned can be stressful and difficult. That’s pretty understandable. Saletan’s take is probably more line with mine in that he thinks it still proves gay marriage is a good outcome (two parents, loving household, financial support, etc.). Still, he takes the study as methodologically sound (some criticisms here).

That said, let’s presume, for the sake of argument, that the study is right and two same-sex parents are actually in fact worse for the child than two opposite-parent biological parents. So what? Lots of children are raised in households without two opposite-sex biological parents; couldn’t a two-parent same-sex household still be better than, say, single parents? Couldn’t some alternate arrangement (let’s say, oh I don’t know, three parents in a household, or a two-parent biological household with grandparents in the home to provide childcare) provide even better results than the two-parent biological household? Should the government or society encourage such behaviors? Maybe, but maybe not. Attacking the “worst” child-rearing environments probably yields the most returns for society; certainly two-parent same-sex households are better than, say, institutional housing or constantly shifting foster care. Since there is high demand for same-sex households to have children, maybe we should be encouraging lots of adoption by any combination of two-parent households.

My point is that much like any presumed difference in intelligence between races (which, as I’ve noted, is probably wrong on its face anyways), the difference between a two-parent same-sex financially-supported household and a two-parent opposite-sex financially-supported household is probably so marginal that the policy implications are nil compared to the differences between a two-parent household and a no-parent household, or a two-parent household and an institutional care facility, or the difference between a poor family and a rich family.

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Well that was fast. A week ago, Romney appointed openly gay national security spokesman Rick Grenell who had all the right conservative bona fides. It “signal[ed] a new attitude” towards gays in the Republican party. At least until it didn’t:

I have decided to resign from the Romney campaign as the Foreign Policy and National Security Spokesman. While I welcomed the challenge to confront President Obama’s foreign policy failures and weak leadership on the world stage, my ability to speak clearly and forcefully on the issues has been greatly diminished by the hyper-partisan discussion of personal issues that sometimes comes from a presidential campaign.

As with other minorities, Republican outreach continues to be stifled by the bigotry that the party has stoked and exploited for years. A perfect attack dog, earnest in his hatred of Barack Obama’s foreign policy, Grenell should have been the right man for the job, but it was too much to ask for the Republican activist base.

Why can’t Marco Rubio get traction on his watered-down DREAM Act? Why did Colin Powell endorse Obama instead of his friend John McCain? Why do Latinos continue to leave the party in droves?

The Republican party has encouraged and condoned bigotry in order to create its current electoral coalition. Eventually, it will pay the price in human capital and long-term electoral success.

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Evangelical Christians helped foster and support Uganda’s barbaric anti-gay regime, but now that people are criticizing them, their fee-fees are all hurt:

“Naturally, I don’t want anyone killed but I don’t feel I had anything to do with that,” said Mr. Schmierer, who added that in Uganda he had focused on parenting skills. He also said that he had been a target of threats himself, recently receiving more than 600 hate mails related to his visit.

“I spoke to help people,” he said, “and I’m getting bludgeoned from one end to the other.” [emphasis added]

I guess I would feel worse for Mr. Schmierer if the quoted article wasn’t about the bludgeoning murder of a gay rights activist in Uganda. To say nothing of the bill currently being considered by the Ugandan Parliament to use the death penalty for homosexuality, which Mr. Schmierer helped to create.

For the record, hate crimes against all Protestant groups in the United States in 2009? 40

Hate crimes against homosexuals in the United States in 2009? 1,390

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These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.  — Loving v. Virginia (1967)

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.)

Nevertheless, reading Loving and the reasoning of the court, it is difficult to see exactly why courts today are unwilling to uphold the ruling as precedent for same-sex marriage. For instance, in the most high-profile case to use Loving, the New York Court of Appeals ruled against the plaintiffs on Hernandez v. Robles, stating:

Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial{**7 NY3d at 361} marriage that was plainly “designed to maintain White Supremacy” (id. at 11)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.

It seems likely that one could find a similar legalized hatred and bigotry towards homosexuals had existed in sodomy laws, but that’s beside the point.

The point is that the logic of the Loving case resides in its determination that the Equal Protection clause of the Fourteenth Amendment is not fulfilled simply because both whites and non-whites are equally punished under the interracial marriage law. Warren rightly eviscerates this argument:

The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.” As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.[emphasis mine]

If one needed proof of the arbitrary and invidious discrimination present in the constitutional amendments to ban marriage equality, one need look no further than the backwards referenda being pushed throughout the states targeting same-sex couples.

If it is not eminently clear that the specific prohibition of same-sex marriage constitutes anything other than “arbitrary and invidious discrimination,” I don’t know what does. If marriage, one of the “basic rights of man,” is denied to a specific group of individuals, the most basic tenet of Loving has been thrown out the window:

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Perhaps the most remarkable element of this particular decision, however, is the vote. It was unanimous. All nine Justices voted in favor of the plaintiffs in Loving. Even Hugo Black, a Southern Democrat who couldn’t stomach Tinker v. Des Moines, ruled in favor of the plaintiffs.

One wonders whether the justices today would have the fortitude to do the same. I doubt it.

Loving stands as a testament to the best that American legal thought has to offer — a reminder that although our country has not always governed and legislated by the ideals laid out in its foundational documents, we do try our best to correct the errors of our ways. I hope it is used as precedent in a new case of marriage equality soon.

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