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Thursday, February 26, 2004
posted by gbarto at 3:41 AM:
Cicero takes his shots at my post against FMA here. With his broader concern about the ways of the courts, his opposition to my opposition - if it's not too awkward to put it that way - is coherent within his view of things. I think, however, that implementing FMA to prevent imminent federalization is reminiscent of "destroying the city to save it." The phrase, "We federalized it to keep it from being federalized doesn't wash" - it's about federalizing in one direction instead of another, if anything. The Turkster, though woefully naive and optimistic, thinks there might still be a way to resolve this without working our way down the ugly path from the beautifully open-form and succinct Constitution we have to the ugly laundry lists that most European and state constitutions have over time become.As to the point that laws contract the options of citizens, that's largely true. Laws do. And in some cases, the citizens do need to be restrained. Should they start eating one another or such things, surely our civil institutions, many a part of government, should step in. But my point was that we're no longer talking about laws, changeable by the consensus of the legislative and executive branches at the drop of a hat; we're talking about the Constitution, the meta-law, if you will, which in its conception did less to determine how we would operate than how we would decide how we operated. The Constitution of the US has been so successful largely because the restrictions it placed were not upon citizens, but upon how government could expand its reach. The first ten amendments were explicitly put in place to make sure government knew its place. Succeeding amendments to recognize Blacks as fully human, women as legal voters, etc, tended to expand the powers of citizens and the protections of citizens. Most of the other amendments, including those that gave us the income tax and presidential term limits, were procedural. With the exception of prohibition, the Constitution has largely told us not what the rules were, but how we were to go about making the rules and what things we could or could not make rules about. The FMA skates dangerously close to legislating, which is what laws are for. Its provisions should be debated in Congress, voted on in Congress, and signed or vetoed by the President, before being written into the law of the land. As a matter of fact, this already happened when they passed the DOMA a few years ago. What's going on in San Francisco is, plain and simple, defiance of state and federal law.
So... our problem today is not that we need a Federal Marriage Amendment. What we need is for the government to get a little spine. It is already the law of California that gay marriage is not sanctioned. And it is already the law of the land that San Francisco can issue all the marriage licenses it wants, but if they're issued to gay couples then Nevada won't have to honor them. Why, if this issue is so sacrosanct, are the family values Republican governor and president not enforcing the laws on the books? Why hasn't Governor Schwarzenegger sent the State Police to intervene at San Francisco's gay wedding ceremonies? Why hasn't President Bush issued an executive order that a San Francisco marriage license means no more to the government than the price of the paper it's printed on?
There is no need for a Constitutional amendment. There is a need for the various governments to enforce the laws on the books and let the people and their elected representatives decide if the laws are serving or thwarting public purposes. If the laws were enforced, the results were satisfactory to the populace and the courts struck them down anyway, then it might be time for an amendment to put the courts in their place. But to preemptively enact an amendment in case the courts might strike down a law that isn't being enforced is misguided. The real question is why the laws aren't being enforced and whether the public wants them enforced badly enough to hold their leaders accountable for enforcing them.
Marcus' fourth and fifth points assume marriage is on the ropes. I agree, but due to heterosexuals' mistreatment of the institution, not gays' desire to join it. Britney Spears is a far greater threat to the institution than a lesbian couple of 20 years that wants official recognition. If gays treat marriage like heterosexuals, as I've argued before, they won't have too much effect. If they blow it off, "gay marriage" will stay in quotes and be treated as something less than marriage by the larger society.
Having addressed - or maybe just skated right over - Marcus' points, I would like to make a few points about some of the big players in the politics of this:
I think that the cynics are right that FMA is a dodge, an amendment that won't pass. But I think they're missing part of the story. The bottom line is that our central figures here are 1) an avowed liberal, Gavin Newsom; 2) a socially liberal conservative, Governor Schwarzenegger; and 3) a compassionate conservative, President Bush. Let's take a look at the three. What's with the first one, I don't know. But I think the second and third want to find a place for gays other than marriage, and I think Bush supports FMA principally because during the time it takes to work through the system, then fail, he'll have had time to seek a better answer.
1) Gavin Newsom may be a saint to gays, but he's a sonofabitch for California. Two years ago, the citizens of California made it damn clear where they stood on the matter. Gavin doesn't care. A few months ago, fed up with the corruption and abuses of power of the Democratic governor, the citizens booted him out. We're less than 100 days into the new administration and the governor and legislature are working desperately to find a budget compromise amenable to both and - a real change here - amenable to the interests of Californians at large. A few days from now, Californians vote on a measure that could drastically change the way California manages its finances, for good or for ill, for nearly a generation. This should be California's moment. The people of California voted for a chance to start anew. And Governor Schwarzenegger vowed that he would help to restore California to its place as the place of dreams, the place of the future. We're down to the wire in the critical first steps in the effort to restore California, and what's the story? Gavin Newsom violated his oath of office by ignoring the laws of the state in which he serves... and totally buried the story of what California was going to do to come back. Don't you worry. Gavin Newsom doesn't give a damn. This is the biggest spotlight he's ever going to get, and if resurrecting the "You never know what's going to happen next out there" storyline about California is what it takes to stretch out the moment, the rest of the state can get screwed. And so can any serious effort to get gays unions legitimate protections. As I noted above, these marriages are not valid under state or federal law. Sooner or later, someone is going to refuse to recognize one or more of them and part II of all hell breaking loose will come. And Gavin will be delighted to make his tearful pleas about his sincere convictions. But he won't give a damn that he took years of bringing gays gradually into the mainstream and on their way to getting proper protections from a public that came to accept them and traded it in for a couple months carnival. As someone who lives and works in California, I'm ticked at Newsom for knocking our efforts at renewal to the side. As someone who views legitimate and recognized civil unions as necessary to assuring gays their rights, I'm ticked that in short-circuiting process he has probably set that cause back at least a decade. But as I say, Gavin got his carnival, Gavin got his kudos, and Gavin doesn't care what happens to anyone else, including the gays for whom his heart may bleed but his head will not think.
2) Governor Schwarzenegger is rightly ticked at Newsom for violating the law of California. He's probably also ticked that you've got to go ten pages into the paper to find the latest on his budget proposals and the upcoming bond issue because we're too busy debating whether Barney Frank is really mad at Gavin Newsom to pay attention to little things like how we're going to pay for police, firemen, schools, etc and still be able to pay our taxes. By all rights, when a lower-ranking elected official so blatantly violates state law - and a state law put in place by the people - the governor ought to be able to send in the cops, or even the Guard. But that's so Bull Connor, and when you're known as the Terminator, that's not the kind of symbolism you want. Furthermore, Schwarzenegger is not averse to domestic partnerships, just so they're not called marriages. Why is he only offering rhetoric and no action, when as governor he has not only the right, but the responsibility, to enforce the laws of the state? Schwarzenegger is one of many politicians who have really been put on the hot seat by Newsom. He doesn't want to stomp on gay aspirations. Not by the poll numbers and not by his own inclinations. He wants Newsom to act responsibly before the San Francisco mayor makes working to assure gay rights synonymous with disrespect for the laws and the people of California and the U.S. But Saint Gavin doesn't give a damn.
3) George W. Bush is in a rough spot here. The conservative in him knows exactly where he stands. But his compassionate side wants to understand what gays are going through and wants to assure them some place in society, just so that place doesn't offend his traditional moral leanings or his base. I think this is the last issue Bush wanted to be dealing with, because it forces him to oppose the gay lobby and seem intolerant or play ball and lose conservative backers. In his speeches, he has done his damnedest to assure that the states could create other institutions for gays, so long as they didn't call it marriage. For all the ranting, the compassionate side of this Christian conservative is not gone. But it's in a hell of a bind.
Governor Schwarzenegger, President Bush and every other Republican in the country is now at the point where simply doing their jobs in upholding laws that others, including Bill Clinton, put in place, will get them a Time magazine cover: Hates Gays. That Kerry and most other Democrats with aspirations are taking identical positions is irrelevant. A liberal news media is just as quick to assume Democrats would be more open if they could as it is to assume that Republicans would be more restrictive if they could. It's not even an issue of outright bias. It's just a question of which boxes you're trying to fit people in. Which is a helluva thing, because with what Gavin Newsom unleashed, it's going to be as hard as ever for elected officials and community leaders to go beyond what is commonly assumed and work a compromise. Those with any "traditional" notions of marriage will be labeled "bigots," and those favoring gay marriage will be labeled "freaks," and everyone will retreat to their designated corners. Saint Gavin will pronounce a few marriages. Someone, somewhere, sooner or later, will unpronounce them. And with the conflict that's come in the middle, there'll be nothing to do but tell the San Francisco thousands that their papers will make a great momento, though not much else. This, I'm sure, pains President Bush, who loves his Bible, loves his faith as he understands it, and loves his vice-president who is most assuredly in touch with this issue, given that his daughter, one of his best friends, is a lesbian. It puts Schwarzenegger, a Republican trying to wed fiscal conservatism with a more open approach to social issues who would have advanced domestic partnerships in another place and time, in a place where to do his job as governor he must tell the happy couples that they're not really married, which knocks him out of the running for bringing real options to gays as he's said he'd like to.
The question is, in his moment of triumphant civil disobedience, was Gavin Newsom really blind to the fact that people higher up could not be so careless about how they dealt with this issue, blind to the fact that he was sending thousands of gay couples out to find new and different forms of discrimination, indifferent to the fact he would be literally making outlaws out of everyone he wed? Either Gavin Newsom didn't care enough to think through what he was unleashing, or Gavin Newsom didn't care what the end result was for the gay couples struggling for real recognition today. Either way, he has done a grave disservice to San Francisco, to California, to the United States, and most of all to the movement for real progress for the rights of gay couples.
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