The far-right freak-out over Lewis v. Harris

October 26, 2006

Just to follow up briefly on yesterday’s [tag]New Jersey[/tag] [tag]Supreme Court[/tag] [tag]ruling[/tag] on marriage equality, I can’t say I’m terribly surprised by the far-right apoplexy — this is, after all, one of their principal whining points — but it was nevertheless interesting to see just how quickly they went to the “judicial activism” card. Here’s James Dobson, for example:

“This ruling once again highlights the need for voters to enact state marriage-protection amendments to keep marriage out of the hands of activist courts…. Nothing less than the future of the American family hangs in the balance if we allow one-man, one- woman marriage to be redefined out of existence. And, make no mistake, that is precisely the outcome the New Jersey Supreme Court is aiming for with this decision.”

I particularly enjoyed that “aiming for” line — as far as Dobson is concerned, the state Supreme Court sincerely hopes to redefine marriage “out of existence.” Some chosen even more colorful language:

“The court is holding a legal gun to the head of the State Legislature, and saying, ‘Listen, there are two bullets, you get to pick the bullet: either [tag]gay marriage[/tag] or [tag]civil unions[/tag],’ ” said Matt Daniels, president of Alliance for Marriage, an organization based in the Washington area that supports a federal Constitutional amendment banning same-sex marriage. “And that is not democracy. That is court-imposed policy-making that takes this out of the hands of the people.”

In the court’s 4-3 ruling, the three dissenters believed the majority wasn’t willing to go far enough. In other words, all seven justices agreed on the point of extending marriage equality to gay couples, but three saw no need to send the matter back to the legislature for a remedy; based on the state constitution, it was within the court’s power to simply acknowledge gay marriage as legal in New Jersey. The court majority wouldn’t go for it, so now state legislators will have to shape a policy.

With this in mind, the right’s hysteria is wildly misplaced. Yesterday’s ruling wasn’t radical at all. Indeed, it was notable most for its moderation.

Glenn Greenwald noted the limited scope of the court’s ruling.

(1) There is nothing new here. The ruling today is almost identical to what the Vermont Supreme Court ruled seven years ago, back in 1999 — namely, that the state constitution requires that same-sex couples have the same rights and privileges as married couples, but it is up to the democratic processes (the legislature) to decide whether to allow gay couples to “marry” (as opposed to enter civil unions).

(2) Today’s decision is very limited in scope and reach. After the Vermont ruling, the Vermont legislature enacted a domestic partnership bill (signed into law by then-Gov. Howard Dean) in order to comply with the court decision. That bill gave full rights to same-sex domestic partnerships but did not legalize gay marriage, and it thus had no impact on anyone other than Vermont residents. That is almost certain to happen here.

(3) The decision today is entirely consistent with the democratic will of New Jersey residents. The New Jersey legislature already enacted a domestic partnership bill two years ago which recognizes, and grants a whole array of marital rights to, same-sex couples. But the way the laws were written, some rights were still assigned only to “married” couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples. But New Jersey voters, through their representatives, already approved of recognition of same-sex relationships two years ago.

(4) Finally, a majority of Americans have long (since at least 2004) approved of civil unions of the sort which this decision mandates. The decision is purely within the mainstream of American beliefs.

Moreover, Slate’s Dahlia Lithwick explained that there is nothing “activist” about this decision.

If you care at all about states’ rights and state autonomy, read this decision. If you believe in judicial minimalism, read this decision. If you think judges should engage in careful scrutiny of state law, read this decision before blasting it as activism. This was a state court taking care of state business.

Memo to Karl Rove: Those who oppose this decision aren’t opposed to judicial activism. They are opposed to judges.

It is such an obvious, modest ruling, that the collective far-right freak-out says far more about conservative activists than it does about the case, the judges, or the issue. It’s so simple — the New Jersey court said discrimination is wrong, and asked lawmakers to find a remedy to protect a group of people who had been treated as second-class citizens. Traditional marriage will remain unchanged and unaffected, while gay couples can finally get the benefits and legal recognition to which they’re entitled.

Right-wing rhetoric notwithstanding, it is inherently on the side of “family values.”

Silly commentators (and CB), facts are for wussies. Logic is for wimps. The Right knows best – it doesn’t need facts or logic, it just needs a headline (“NJ Court Rules for Gay Couples”) and a direct mail list. The truth is far, far secondary to winning elections. Anyone and everyone should have been able to see this coming, and there was no amount of moderate language the court could have chosen that would have prevented it. Trying to argue logic before fundies is the absolute textbook example that defines the old phrase “casting pearls before swine.”

  • I still think this is the stupidest timing in history.

    Couldn’t wait two weeks to release this, eh New Jersey Supreme Court?

    Thanks though for pointing out that New Jersey has already chosen, as a people and legislature, to grant most of these rights in civil unions. Something I’m sure Dobson will forget to mention.

  • What about calling gay marriage “Gay Marriage” and continue calling straight marriage “Marriage?” Everybody wins. The people worried about keeping traditional marriage distinct get what they want, and gays who want to get married can still have a “marriage.” Then to avoid confusion people could say either “so-and-so is married” or “so-and-so is gay married.” Both terms would bestow the exact same legal rights on partners. There you go America. Problem solved.

  • If this ruling didn’t come down, the GOP would have had to invent it. They need a gay-baiting amendment/ruling to get the base out every election, and this one is more than adequate. I think the response is, “The GOP ought to be a little more worried about pedophiles in its own ranks than what goes on in their neighbor’s bedrooms.”

  • Lance, you questioned the timing? One of the court’s justices (maybe, the chief justice) is schedule to retire in the next few days (age limit, not sure?).

  • After reading Dobson’s rhertoric you’d think that the NJSC banned straight hetero marriages and lealized same-sex marriage.

    What a drama queen.

  • While I’m glad that this decision will mean more equality for same-sex couples, I can’t help but feel that yet another judicial body thinks that I am not a full citizen, deserving the same rights and responsibilities as any other. My husband and I (thanks to Canada) are nearing our 15th anniversary. Both our families and friends considered us “married” not too long after we found each other.

    I’m tired of being a second class citizen.

    I’ve contacted several civil rights organizations to see if there’s anything we can do to move this issue along, at least in our hypocritical state of Florida, but unless we’re ready to get a divorce or one of us dies, there’s nothing we can do. No state income tax here, just sales tax. The Feds are also getting short shrift, tax-wise, since we pay less in Federal income taxes than a married couple would. That’s not a complaint (or a gay couple gloating at the exenses of being “married”), just a statement of fact. I’d much rather pay a little more in taxes now than have to deal with the myriad repurcussions of death and/or divorce.

    If hubby didn’t have to take a new bar exam every time we moved to a different state, we’d be long gone from this country by now. I hear Spain is nice, but then I’d have to learn Spanish. Daily siestas are also very attractive. 😉

  • In re: Gay marriage. I’m reminded of Barney Frank’s famous rejoinder to a conservative Representative (I think it was Bob Barr, I’m not sure): “Which one of your three marriages did my relationship with a man destroy?”

    I’ve been with my same-sex partner for over 30 years. We own property together. Under some interpretations of the law up for a vote in Virginia, if we lived there that would be illegal. If one of us dies we would pay dearly in “death taxes” on the houses because he’s not my legal spouse. Rick cannot benefit from my social security, he’s not eligible for my Federal employee pension, and we pay through the nose for his private medical insurance because I can’t put him on my Federal medical insurance. We pay huge property taxes to pay for schooling for other people’s children (Something we’re happy to do; it’s to the benefit of society). When I was in the hospital for heart surgery, we had to throw major hissy fits to get the staff to allow him to be by my side in the recovery room.

    So he and I are angry and dismayed. We’re giving big bucks to the Human Rights Campaign to help out. And this week I’m putting on my car the following bumper sticker:

    “Radical Homosexual Agenda: Life, Liberty, and the Pursuit of Happiness”

  • ***Nothing less than the future of the American family hangs in the balance if we allow one-man, one-woman marriage to be redefined out of existence.***

    First, how might “Dr.” Dobson (read: scurrilous, theo-dominionist quack) explain to the “real” world that by merely extending the definition somehow establishes an extinction event for the definition? It’s like these “bizarro-Xians” who go running about like rabid, foaming-at-the-mouth field-mice, screaming about how *liberal-minded Christians, Christians who seek to follow the lessons of Jesus, Christians who believe that Jesus brought with him a “new Covenent” that pretty much negated all of the nonsensical demonizations found within the Old Testament (other than the only “laws” that came straight from God, being the Ten Commandments, of course), and Christians who consider the various spiritual/mystery-religion aspects of “pre-3rd-Century Christianity” to be valid*…

    …are somehow not “real” Christians.

    Oh…wait…that’s already being done, isn’t it?

    And second, how might “Mr.” Dobson (what—you think I’m going to call him “Dr.” twice in the same comment, and not choke on my coffee?) explain that a solemn union, legitimized under the legal term of “marriage” and recognized by the State as such, is somehow going to send not only my marriage, but also my entire family, over the edge of some horrific societal abyss?

    Typical Neocon hogwash, it is: Join us, or die. Vote for us, or die. Do as we tell you, or die.

    Is it any wonder why Mr. Dobson and his ilk are referred to as “the American Taliban?”

  • It’s not that they’re opposed to judges, or even that they’re unable to understand facts. Instead it’s an absolute, theological opposition to gay sexuality. Anything that in any way recognizes or gives tacit approval to non-heterosexual unions is (in their minds) an Abomination Before God and must be opposed by any means necessary.

    What’s on display is the Right’s inability to come to terms with the reality of human sexuality. It’s a pattern we see again and again, whether on stem cells or evolutionary theory or the “godliness” of the chimp. Their religious convictions trump all else. No argument, no matter how compelling or well-grounded, is going to budge them.

    We’re apparently doomed to share the world with these idiots. The only way we (and they) will survive is if we keep them out of power.

  • “Lance, you questioned the timing? One of the court’s justices (maybe, the chief justice) is schedule to retire in the next few days (age limit, not sure?). ” – SKNM

    So freeking what? They are all seven for allowing Homosexuals to have the same rights as Hetrosexuals. The only difference is whether they would impose it by judicial fiat or make the legislature pass a law.

  • jimBOB said:

    “We’re apparently doomed to share the world with these idiots. The only way we (and they) will survive is if we keep them out of power.”

    Well, in my case, I also survive by being an example to others. I have pictures of me and my partner all over my office. On Monday chats in the coffee room about weekend events I say “Rick and I destroyed three traditional marriages by bickering over what foods to buy at the supermarket.” I talked proudly about singing with the Gay Men’s Chorus of Washington, DC when we performed in honor of Elizabeth Taylor in front of W., Cheney, Laura, Lynne, et. al. (I thought W. looked particularly sour when we were announced .) In our Chorus we talk about “Changing Hearts, one Song at a Time.”

    And it works… there’s a co-worker of mine here, a really conservative religious person. I’ve known him for years, and have purposely talked about my partner in general terms, but specifically by name. This guy is going through a real nasty divorce. A while ago, he said to me “You know, Steve, you’ve changed my mind. I’m now all FOR gay marriage. That way, when you guys get divorced you can get screwed by the lawyers just like I did.”

  • I still think this is the stupidest timing in history.

    Couldn’t wait two weeks to release this, eh New Jersey Supreme Court?

    I understand the concern about the timing and the fear that this could be an “unintentional” October Surprise. But it’s past time that Democrats and their allies learn to react and adapt to the ever-changing headlines rather than cringing in the fear the “momentum” will be lost. Sure, this will fire up a group of right-wing fucktards, But this group would have turned out to vote against homosexuals and Democrats on principle anyway.

    In this case, the New Jersey ruling doesn’t change the fact that Iraq and Afghanistan are massive failures. Or an increasing number of U.S. Congressmen are under investigation for corruption. Or that the GOP coddles sexual predators. The answer is don’t let Republicans change the subject. Not much has changed from yesterday — the GOP is still the biggest bunch of miserable, crooked failures ever to lead the country. If the Dems stay on message (cross your fingers), it’s not that big of a deal in terms of the election.

  • As I said yesterday re: Dobson and other cretins – “Waaaah, I don’t like it!” is not a valid legal argument, so take your ball and go the fuck home. I wasn’t a twinkle in my dad’s eye when Brown v. Board of Education came down but it gives me a double case of creeps to hear the same hatenik arguments dragged out again, including the “threat to families,” crap. (Allowing brown folk near the non-browns would lead to rape and a muddy gene pool, eeek!)

    Perhaps that could be an ad for the HRC etc. Just run quotes opposing pro-integration and pro-gay rights rulings and laws side by side. Or even better, make it a quiz. “Which anti-discrimination law does this quote apply to?”

    tAiO

    p.s. Zeitgeist, is there a way the goat ads could be applied here? “James Dobson has spoken out against gay marriage but he’s been silent on goat raping. Could it be he has something to hide?”

  • tAiO, you know I have an itchy trigger finger re the goat ads, and I think you’ve found a great use for them! Ads about Rethugs and Goat – perfect for any occasion!

  • Eeyore (8, 12), thanks for suggesting “Radical Homosexual Agenda: Life, Liberty, and the Pursuit of Happiness”.

    I also think it’s neat that you try, at least by example as well as engagement, to address “the dark side”. I wish the Democrats (and Air America, etc.) would consider doing that more often. Too much of our time is spent preaching to the choir. It’s great to re-enforce our beliefs, but the object really should be to change beliefs toward more enlightened ones.

  • It’s not the judiciary that the far right hates, it’s the Constitution. Judges are only the human face of tht document that they can lash out at. Activist judiciary? Not so much … do we have an activist Constitution? Absolutely!

    That whole bit about all men being created equal, even if one man may love another man, doesn’t sit well with the right, especially when a judge says the Constitution doesn’t prohibit it and in fact uses considerable restraint in what a government can deny its citizens, especially within everyone’s rights of life, liberty and the pursuit of happiness.

  • “Those who oppose this decision aren’t opposed to judicial activism. They are opposed to judges.”

    So right, and there are several anti-court state constitutional amendments up for election this year (Prop 90 here in California) that need to be defeated to defeat the Right.

    Michael W. and Eeyore are so right. This heterosexual has managed to stumble into going-on-11years of togetherness (not always “bliss”) and after 2 failed marriages is not interested in “screwing the pooch” with a marriage. On the other hand, my oldest friend from kindergarten is going on 26 years of committment to each other in his relationship (why they stay in Texas is beyond me).

    Barney Frank’s comment is right on point. I know of no “defender of marrige” who is married to the woman he married originally. Look at the serial philanderers like the Poster Boy For Hypocrisy In All Things

  • RE comment #7 by Michael W

    I admire all those who actually do something instead of just talking about it, i hope you get things moving along indeed!. My hubby and I consisdered getting a civil union as a opposite-sex couple as a statement, but ended up considering it too risky, and besides we moved out of the country. (and if you don;t mind cold winters, the Netherlands is very nice and will recognize your marriage and charge you a 50% tax rate 🙂

  • Oops… I responded before reading ALL the comments, and I should not have written “just talking”… Eeyore is right, it all begins with talking. I was actually refering to myself and others who tend to preach to the choir. Apologies.

  • Religion isn’t serving its purpose if it does not exclude someone. Fundamentalists would be wasting their time if God loved, and Jesus forgave everyone.

    This is why they are so happy to align themselves with the obscenely wealthy. It’s all relative: one cannot be wealthy, without the impoverished to lend contrast; likewise, one cannot be holy without the “unclean”.

  • Man, I’d hate to be a conservative republican, living in fear of the terrorist boogeyman in the basement ready to pounce, the fag that will kill everyone with AIDS, the liberal media, socialists, blacks, immigrants… Jeez… no wonder they yearn so much to be dominated by some authoritarian figure; it gives them a sense of security.

  • It might be good to remember the words of Jose Luis Zapatero, Prime Minister of Spain, when he put his entire prestige and power behind the legalization of gay marriage, as an answer to the fundie scum:

    “We are not legislating, honorable members, for people far away and not known by us. We are enlarging the opportunity for happiness to our neighbors, our co-workers, our friends and, our families: at the same time we are making a more decent society, because a decent society is one that does not humiliate its members.

    “Today, the Spanish society answers to a group of people who, during many years have, been humiliated, whose rights have been ignored, whose dignity has been offended, their identity denied, and their liberty oppressed. Today the Spanish society grants them the respect they deserve, recognizes their rights, restores their dignity, affirms their identity, and restores their liberty.

    “It is true that they are only a minority, but their triumph is everyone’s triumph. It is also the triumph of those who oppose this law, even though they do not know this yet: because it is the triumph of Liberty. Their victory makes all of us (even those who oppose the law) better people, it makes our society better. Honorable members, There is no damage to marriage or to the concept of family in allowing two people of the same sex to get married. To the contrary, what happens is this class of Spanish citizens get the potential to organize their lives with the rights and privileges of marriage and family. There is no danger to the institution of marriage, but precisely the opposite: this law enhances and respects marriage.

    “With the approval of this Bill, our country takes another step in the path of liberty and tolerance that was begun by the democratic change of government. Our children will look at us incredulously if we tell them that many years ago, our mothers had less rights than our fathers, or if we tell them that people had to stay married against their will even though they were unable to share their lives. Today we can offer them a beautiful lesson: every right gained, each access to liberty has been the result of the struggle and sacrifice of many people that deserve our recognition and praise.

    “Today, for many of our countrymen, comes the day predicted by Kavafis (the great Greek gay poet) one century ago:

    ‘Later ’twas said of the most perfect society/someone else, made like me/certainly will come out and act freely.’ “

  • I may have said this in another post here, I’ve said it in a number of places. By leaving the choice between ‘marriage’ and ‘civil unions’ to the legislature in a state where the majority of people support marriage equality, the Court makes it possible for the legislature to spike one of the larger fundie arguments. If the Legislature does it, it is no longer a question of ‘judicial activism.’

    I have also seen the interesting fact — if true — that the judges that were appointed by Jim “Gay American” McGreevey were all in the majority. The minority — who argued that gay marriage was a right, not just ‘equality of treatment’ were all appointed by Christine Todd whitman, a Republican.

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