Mid-Century Exceptionalism (II)

Chris Caldwell's latest column takes aim at the same point - about the difference between JFK's era and our own - that I was trying to make earlier:

Many Americans are given to quoting John F. Kennedy’s view that a president’s religious views ought to be “his own private affair”. That was a workable ideal when American laws and institutions – from churches to unions – were stable enough that the private convictions of politicians could not affect them. But it is a different country now ...

Thanks to constitutional limits on government’s right to meddle in religion, churches are the surest refuge from overweening government. Mr Smith’s church is safer from regulation than Mr Smith’s hardware store. Unsurprisingly, many new secular institutions are now organised religiously. “Church” is an inadequate description of some of the all-purpose alternative communities that have cropped up in the American Bible belt, with cinemas, libraries, gyms, coffee shops and so on. What we call “religion” in America can be as much a political secession as a spiritual revival.

It is always legitimate to want information about a candidate’s bedrock beliefs, whether they are religious or not. If Americans are pressing for such information more urgently in recent elections, the reason is not that they are turning into fanatics. It is that, when basic institutions and social rules are in flux, convictions about first principles matter more than they once appeared to.

(hat tip: Continetti)

Comments

And this is a Bad Thing?

Posted by Robert Powell | December 26, 2007 11:32 AM

"(T)he reason is not that they are turning into fanatics."

Oh, really? We don't have whole lot more fanatics underfoot these days?

That's purely a load of crap. Just take a look at the recent flap over SuperChristians infesting the Air Force Academy. Or Huckabee building his Iowa campaign on anti-Mormon bigotry. And so forth. And so on.

Posted by MoeLarryAndJesus | December 26, 2007 1:31 PM

Re: It is that, when basic institutions and social rules are in flux, convictions about first principles matter more than they once appeared to.

And things were not in flux in the 60s? Come on, that's absurd! The civil rights revolution alone was a much bigger upheaval than anything now happening. And too many people forget that the later Hippie counter-culture had deeper roots in the Beatnik counterculture of the 50s.

Posted by JonF | December 26, 2007 8:26 PM

"“Church” is an inadequate description of some of the all-purpose alternative communities that have cropped up in the American Bible belt, with cinemas, libraries, gyms, coffee shops and so on."

There aren't a whole lot of these -- one or two per major city, I'm guessing. It's not a sustainable trend.

Posted by Klug | December 26, 2007 8:32 PM

"Starting in the 1960s, bureaucracies and courts dismantled many long-standing civil institutions in the name of secularism and neutrality – integrating men’s clubs, legalising gay marriage, removing Christmas displays from public squares and so on."

These vital civil institutions were "dismantled" by those nasty bureaucracies and undemocratic courts? Really? Were men's clubs and Christmas displays in front of public buildings that vital to democracy? Has the institution of marriage been "dismantled" now that gays can marry in a few blue states?

If those are the most egregious examples that Caldwell can come up with, that's pretty pathetic. It's almost as if the government is actually not oppressing religious people at all.

Can anyone out there besides Hillary, Monica, and various right-wing reporters claim that Bill Clinton's personal values seriously affected their lives?

Posted by tequila | December 27, 2007 5:39 AM

Earlier comments have pointed out how weak these arguments are.
They also lead to a bad end - more pernicious identity politics. Bad for two reasons -
Can we trust someone who campaigns as a "Christian candidate" to fully protect the rights of a Jewish or Moslem kid against an overenthusiastic Christian public school teacher?
And, if religious identity goes up in importance, something else has to go down. The Bush administration is a dramatic example, where religious identity went up and honesty, competence, compassion and respect for the law went way down.
Voters can use whatever criteria they want to pick candidates, but they are fools if they pick based on religious identity.

Posted by peter | December 27, 2007 1:32 PM

“That was a workable ideal when American laws and institutions – from churches to unions – were stable enough that the private convictions of politicians could not affect them. But it is a different country now ...”

“If Americans are pressing for such information more urgently in recent elections, the reason is not that they are turning into fanatics. It is that, when basic institutions and social rules are in flux, convictions about first principles matter more than they once appeared to.”

I agree with this general assessment about the place of religion in contemporary politics. However: I consider this to be a stealth campaign were both parties make allusions to their (supposed) religious convictions in lieu of articulating clear policy statements.

A candidate like Huckabee and others can say “I’m a Christian” rather than have to go through a long question and answer session as to the specifics of each social policy plank.

This is driven in part by the following phenomena.

#1. The difficulty of articulating something as complex as how a society’s social fabric is knitted together. Even in the domains as sophisticated as moral theology , academia, and the social sciences such topics are long and cumbersome.

#2. A socially liberal press corp that also is averse to pluming the depths of cultural issues.

#3. The inappropriateness of the Presidency as a moral pulpit. The job of virtue instiller and cultural crusader has traditionally been religions affair. While people don’t generally like leach as President (Guliiani, B. Clinton) it’s also not the top priority in picking a president.

In short- If the culture wars were being argued in settings like academia & the media in more sophisticated & balanced way

Along With - The threat of judicial usurpation of such issues did not hang over the heads of ever presidents supreme court picks.( & therfore every president)

Then = Religion would not be proxy for common decency & moral values.

Posted by Fitz | December 27, 2007 3:01 PM

Voters can use whatever criteria they want to pick candidates, but they are fools if they pick based on religious identity.

I agree to a point - if there sole criteria is religious identity, then it is foolish. As is picking based on gender and/or having been married to a past president one liked. Or picking a president (or any employee) based on race (affirmative action, anyone?).

Religious beliefs certainly do help illuminate a person's moral beliefs, however, and are legitimate things to consider. For instance, not many of us would likely vote for a presidential candidate who belonged to a religion that believed the world is going to end in the next 5 years. Or to a religion that still held women to be property of men, etc.

Thus, stating that chosing a presidential candidate based solely on their religious beliefs is foolish is agreeable, it does not follow that religious beliefs should be ignored.

Posted by Great Banana | December 27, 2007 3:59 PM

It is indeed a matter of grave political import what a candidate considers the relationship between Christ and Lucifer to be, and I congratulate Ross for seeing this clearly. I await Gov. Huckabee's release of an organization chart describing the reporting structure among Lucifer, Satan, Beelzebub, Mephistopheles, and Leviathan, and how he expects the addition of the Antichrist and the Beast to affect it.

Posted by Mike | December 27, 2007 9:42 PM

Fitz concludes: "Religion would not be proxy for common decency & moral values. "

Which it most certainly is not in any event, when viewed from a rational perspective.

What Fitz means here - as best as I can tell from reading his ever-fractured prose - is what most religious people mean - that HIS religion is such a proxy.

The other guy's religions are almost always a different kettle of loaves and fishes.

Posted by MoeLarryAndJesus | December 27, 2007 9:47 PM

If Bush were Jewish or a Muslim and held the same political beliefs, he would never have been the Republican candidate for president. He would have been lucky if he had been governor of Texas. Think of the scene in "Jesus Camp" where kids are told to worship a picture of Bush. There is something sick in America's conservative Christian movement. Acknowledging the existence of other religious traditions in America and making space for tolerance for them and people of no religion is not an attack on Christianity, it is upholding the Constitution. The victim identity politics of modern conservative Christians is simply pathetic.

Posted by Reality Man | December 28, 2007 1:32 AM

Reality Man writes: "Think of the scene in "Jesus Camp" where kids are told to worship a picture of Bush. There is something sick in America's conservative Christian movement."

Not just sick - sick and STUPID. The "Jesus Camp" scene is a good example. So is the "Left Behind" phenomenon. Those books are just Jesoid porno. I read the whole series just so I could tell the tale - anyone who takes them seriously on a literary or theological level has shit for brains.

Pretending that there isn't a whole lot of stupid going on in the wingnut/Jesoid ranks may be polite but is just isn't true. We're overrun with morons who think they have a "personal relationship" with an Almighty. This is funny on many levels, but not when it gets serious.

Posted by MoeLarryAndJesus | December 28, 2007 2:28 AM

God, Americans are weird. In Europe, pollies usually keep their religious feelings under their hat, because we find it weird and a bit abhorrent if they bang on about their religion, given that our states are secular. See Tony Blair, a deeply religious type who basically never mentioned his religious beliefs in the correct belief that voters would sprint away in droves if he did talk about them.

Posted by Dr Zen | December 28, 2007 5:37 AM

Worship of political faction and the state is a religion too. Separation of Church and State has been most difficult to achieve in officially atheistic systems. Leviathan prefers identity politics of the sort in which reasoned discussion is replaced by a kind of color-coding for "enemies"--Jews, Kulaks, Christians, morons, etc.

Posted by Robert Powell | December 28, 2007 7:29 AM

The "liberal" neocon Robert Powell writes: "Separation of Church and State has been most difficult to achieve in officially atheistic systems. Leviathan prefers identity politics of the sort in which reasoned discussion is replaced by a kind of color-coding for "enemies"--Jews, Kulaks, Christians, morons, etc."

Tell that to the Bush administration and the Iranian mullahs, chuckles.

Posted by MoeLarryAndJesus | December 28, 2007 8:21 AM

If Bush were Jewish or a Muslim and held the same political beliefs, he would never have been the Republican candidate for president.

Yes, b/c there have been so many Jewish and Muslim democratic candidates for president.

Posted by Great Banana | December 28, 2007 10:38 AM

There is no getting around this fact: The Left launched the "culture wars" in the mid-1960s, and the Left has aggressively used the courts to effect social changes it could never hope to bring about through democratic means.

I personally deplore the habit of 21st century politicians sharing with us their theological beliefs and intimate prayer life. But let's face it, in a post-1960s world, God-talk by politicians is a code through which the candidate reassures the general public that he or she isn't interested in using government power to effect cultural change.

As long as there are courts capable of making ridiculous "discoveries" such as a right to "gay marriage" embedded in an 18th century constitution, we can expect to hear relentless God-talk from our public officials.

Posted by Simon | December 28, 2007 10:52 AM

Simon says: "As long as there are courts capable of making ridiculous "discoveries" such as a right to "gay marriage" embedded in an 18th century constitution, we can expect to hear relentless God-talk from our public officials."

Of course that decision is fairly recent, and is hardly what set the cons to bitching about the courts. They were very upset when the Supreme Court said that they had to let black kids into their schools, though - how'd you feel about that "social change" happening outside of "democratic means"? And does all change in our CONSTITUTIONAL REPUBLIC happen through such means?

And of course the Massachusetts court didn't find anything about gay marriage in the state constitution - it found a right to equal treatment. Somehow life goes on here in Massachusetts, and outside of a few cranks no one gives a ripe damn about the subject anymore.

Posted by MoeLarryAndJesus | December 28, 2007 12:14 PM

Simon
"As long as there are courts capable of making ridiculous "discoveries" such as a right to "gay marriage" embedded in an 18th century constitution, we can expect to hear relentless God-talk from our public officials."

This really is the crux of things and people serious about society & politics understand it to be true. The "religious right" was never an organized political force until the Roe decision.

Multiple decisions from Griswald, to Roe, to Lawrence & Good ridge have confirmed this striking subversion of democracy.

So the traditionally minded after many years finally becomes an organized and effective force in politics & the left starts screaming “theocracy”.

As to Religion as proxy for these issues – I must say I am not impressed. We would do better if politicians openly identified these judicial usurpations of legitimate public power. Doing so would be more difficult and somewhat more risky. However – politicians have run successful campaigns against elites & runaway courts in the past.

By centering a large part of the debate on this issue traditionalist insure that they get more than “Christian” lip service from the candidates. By going straight to the substance of the critique they expose the other side to hiding there policy choices behind Judicial Robes.

Posted by Fitz | December 28, 2007 1:44 PM

Of course that decision is fairly recent, and is hardly what set the cons to bitching about the courts. They were very upset when the Supreme Court said that they had to let black kids into their schools, though - how'd you feel about that "social change" happening outside of "democratic means"?

On the contrary, desegregation of schools is NOT what set off the culture wars. Liberalism/progressivism remained the dominant idea in America until the late 1960s. The urban race riots and anti-Vietnam War riots played a big part in destroying that idea, but so did a host of constitutionally absurd judicial decisions won by the Left -- banning customary religious expression from public schools and other public spaces, inventing an all-purpose and malleable "right to privacy," overturning 50 state abortion laws, ordering school "busing" to achieve desegregation, ordering legislatures to raise taxes to increase funds for public schools, creating a "right" to sodomy, creating a "right" to gay marriage, etc. etc. etc.

Regardless the merits of any of these decisions, their natural result is more and more talking by politicians about religion and faith. It's the politicians way of calming the fears of the public -- signalling, "I'm not part of all that social engineering."

Posted by Simon | December 28, 2007 1:55 PM

Simon replies: "On the contrary, desegregation of schools is NOT what set off the culture wars. Liberalism/progressivism remained the dominant idea in America until the late 1960s. The urban race riots and anti-Vietnam War riots played a big part in destroying that idea, but so did a host of constitutionally absurd judicial decisions won by the Left -- banning customary religious expression from public schools and other public spaces, inventing an all-purpose and malleable "right to privacy," overturning 50 state abortion laws, ordering school "busing" to achieve desegregation, ordering legislatures to raise taxes to increase funds for public schools, creating a "right" to sodomy, creating a "right" to gay marriage, etc. etc. etc."

I see what you're saying, Simon, but denying that desegregation was the opening salvo in the Culture Wars just doesn't make sense.

As for "anti-Vietnam War riots," I could be wrong, but I don't believe there were any. There were protests, some of which became violent, often due to police action. But real riots were over race. It's interesting that you choose to use the same word for both phenomena.

You also tip your hand (and it's obviously the right hand) when you say all the decisions were "absurd" yet conclude with "regardless of the merits of any of these decisions." Make up your mind.

And claiming that the courts are somehow totally divorced from the democratic process is simply mindless con cant. Supreme Court justices aren't grown in liberal laboratories - they're nominated and confirmed by elected officials, and conservatives have certainly been doing most of the nominating during the time in question. I do suppose there's something about a lifetime appointment that frees a judge up to be a decent human being rather than a complete right-wing dick, but it hasn't seemed to have had that effect on Thomas or Scalia.

Posted by MoeLarryAndJesus | December 28, 2007 2:16 PM

Moe, you spend entirely too much time commenting on every single one of Douthat's posts. Frankly it's kind of creepy...

Posted by Casey | December 28, 2007 3:04 PM

Casey says: "Moe, you spend entirely too much time commenting on every single one of Douthat's posts. Frankly it's kind of creepy..."

It's also not true.

But I'm always happy to hear from my fans.

Posted by MoeLarryAndJesus | December 28, 2007 3:25 PM

I see what you're saying, Simon, but denying that desegregation was the opening salvo in the Culture Wars just doesn't make sense.

Yes, it does. Desegregation was deeply unpopular in the South, obviously. But it was broadly popular with the rest of the country, which is why the Supreme Court decisions that began with Brown were ultimately followed up with major, bipartisan national legislation in 1957, 1964 and 1965.

No such legislative follow-up has ever occurred with the Court's numerous and far more constitutionally dubious decisions relating to religion, abortion, sex and sexuality, ham-fisted attempts to direct school policy, etc. Because most of those decisions antagonized the broad majority of the American public. Politicians, who are in the business of winning votes, understand that completely. That's why nearly all of them trumpet their religiosity as a shorthand way of distancing themselves from this sort of social engineering (whether they personally support it or not) in the public mind.

Posted by Simon | December 28, 2007 3:35 PM

As to Religion as proxy for these issues – I must say I am not impressed. We would do better if politicians openly identified these judicial usurpations of legitimate public power. Doing so would be more difficult and somewhat more risky. However – politicians have run successful campaigns against elites & runaway courts in the past.

I agree completely. Unfortunately, in a sound-bite culture, politicians will convey their message in the easiest, most dumbed-down way possible.

Thus, instead of an intelligent argument against judicial encroachment on policy areas reserved to the legislature (an argument that should command support from all parts of the political spectrum), they simply talk about their personal "walk with the Lord." Does the trick politically, and that's all they care about.

Posted by Simon | December 28, 2007 3:39 PM

Simon again: "Desegregation was deeply unpopular in the South, obviously. But it was broadly popular with the rest of the country, which is why the Supreme Court decisions that began with Brown were ultimately followed up with major, bipartisan national legislation in 1957, 1964 and 1965."

Desegregation was so "broadly popular" in the rest of the country that court intervention was sought time after time in order to enforce it, and obviously not just in the South.

I do agree that the cloak of religiosity is often used as a signal to bigots, but then so is having an (R) after your name on the ballot in many cases.

That's still a long way from giving any substance to your claims about the "absurdity" of all of those cases. But I notice you didn't even bother to reply on that score. Perhaps you realize that having a governmental branch which isn't wholly owned by the ballot box is useful in a constitutional republic, and is exactly what the Founders intended.

Posted by MoeLarryAndJesus | December 28, 2007 3:45 PM

Simon
"No such legislative follow-up has ever occurred with the Court's numerous and far more constitutionally dubious decisions relating to religion, abortion, sex and sexuality"

Well Yes...(in the positive sense of ratifying the reasoning)

We do have examples of multiple legislation AGAINST these judicial usurpations of democracy including multiple restrictions on abortion.

As well as the recent popular uprising against Goodridge which directly led the most successful constitutional drive in this nation’s history.

57-43 = Oregon 59-41 = Michigan 62-38 = California 62-38 = Ohio 66-34 = Utah 67-33 = Montana 71-29 = Kansas 71-29 = Missouri 73-27 = North Dakota 75-25 = Arkansas 75-25 = Kentucky 76-24 = Georgia 76-24 = Oklahoma 78-22 = Louisiana 86-14 = Mississippi 56-44 = Colorado 63–37 = Idaho 74-26 = South Carolina 52-49 = South Dakota 82-19 = Tennessee 57-43 = Virginia 60-40 = Wisconsin

Posted by Fitz | December 28, 2007 3:52 PM

Simon,

I would disagree with you in part. The legalization of contraception, which was probably the most important 'sexual issue' under debate in the 1960s, was broadly popular. Only a small minority of Americans is opposed to the Pill today. I would venture to suggest that the legalization of divorce was probably also broadly popular.

It's true that Americans are much less enthusiastic about gay rights and abortion than the Supreme Courts have been. Nevertheless, the American people are certainly more pro-choice than you or I would like them to be, and we should begin by accepting that fact. If Roe v. Wade was ever turned, abortion would probably still be legal in many states, at least in the short term.

Posted by Hector | December 28, 2007 4:13 PM

Fitz says: "We do have examples of multiple legislation AGAINST these judicial usurpations of democracy including multiple restrictions on abortion."

We also have numerous state legislatures removing their anti-miscegenation laws after (sometimes long after) the Court "usurped democracy" in Loving v. Virginia.

"As well as the recent popular uprising against Goodridge which directly led the most successful constitutional drive in this nation’s history."

The most pointless one, too, since Goodrich was a Massachusetts case which couldn't be enforced in other states. But it gave a lot of yahoo bigots the chance to wave their wienies at each other outside polling stations.

Prohibition was another "succesful constitutional drive" led by religious nutjobs, and we all know how history views that fiasco. Future generations will view the anti-gay bigotry of the Fitzes with the same disgust (most of us) look upon the segregationists with.

Posted by MoeLarryAndJesus | December 28, 2007 4:17 PM

Somethings that bother me, is that conservatives, so quick to condem populism in other contexts, say like economic driven populism cause it violates rights like "property rights" or "free trade", embrace it wholeheartly when it is about violating the rights of homosexuals or embrace statism when it is about imposing their own "moral" views on the rest of us cause they are mayoritarian...

Posted by Sergio Méndez | December 28, 2007 7:14 PM

When the Constitution was written, there were contradictions in it with regards to fairness and equality before the law, most obviously slavery and restrictions on suffrage due to race, sex and property holding. The likes of Lincoln, Stanton, LBJ, MLK, etc. helped to convince the American people of these contradictions and thus helped to correct them. Gay rights is just another step in the long line of Americans realizing that American values should be open to all Americans. Homophobes will have to deal with their families in a few years (or even now) asking friends and the youngest members of the families to please excuse the old farts because they were of a different era, much like how people are embarrassed of their (great-) grandparents that still use the word "negro."

Posted by Reality Man | December 29, 2007 2:05 AM

Also, would anybody want to live in an America that lacked a right to privacy? Isn't the idea of a country without that creepy?

Posted by Reality Man | December 29, 2007 2:14 AM

If the right to privacy means the right to sodmize 20 men in one night through a hole in the wall at a nightclub or the right of a woman to kill her own baby and throw it down a toilet, then I would be very very happy to live in a society with no right to privacy. Better to live without freedom than without morals.

Your 'freedom' and 'privacy' very often is nothing but a means to defend the indefensible. Abortion is indefensible on its own merits, so you throw up these smokescreens about privacy.

Posted by Hector | December 29, 2007 9:09 AM

"If the right to privacy means the right to sodmize 20 men in one night through a hole in the wall at a nightclub or the right of a woman to kill her own baby and throw it down a toilet, then I would be very very happy to live in a society with no right to privacy. Better to live without freedom than without morals.

Your 'freedom' and 'privacy' very often is nothing but a means to defend the indefensible. Abortion is indefensible on its own merits, so you throw up these smokescreens about privacy.

Posted by Hector | December 29, 2007 9:09 AM"

Should we criminalize anonymous gay sex? That is just creepy. What fucking business of the state is it if some guy gets it on near the New Jersey turnpike? Personally, I fine the statement "Better to live without freedom than without morals" to be itself immoral and thus meaningless. This is the thrust of the ideology of the likes of the Taliban and the House of Saud. It was the Maoist approach to sexual freedom (basically, you didn't get to have casual sex without being labeled a class enemy). Also, it is illegal for a woman to kill her own baby and throw it down the toilet (however that is supposed to work? How would anything bigger than a preemie even fit down there? And why is "preemie" in Firefox's spellcheck?) About a year ago on Oprah (my ex-gf used to watch it) had a bit where Oprah was chewing out some woman who was in jail for at the age of 16 or so stabbing her still born baby to ensure that it was dead. Not only is it illegal for a woman to kill her baby after it's been born, but it's illegal to mutilate a stillborn baby. You obviously have no idea what you're talking about.

The idea that a bunch of cells in a petri dish is the same thing as a newborn baby is just so retarded that you would need to justify such a belief on a misreading of an often-mistranslated ancient text. Nowhere in the Bible does it say abortion is wrong. In fact, the most moral of the members of Columbus's crew, the Catholic missionary Bartholomew de las Casas, admired the Arawarks (sp?) for the ease with which they allowed women to get abortions. He was the sole person from the crew who wrote of how the Spanish genocidal treatment of the indigenous peoples was immoral and that their society should be left alone and preserved. All of this Christian hoopla over abortion rights being anti-Christian is of rather recent vintage and is so transparently bullshit.

Posted by Reality Man | December 29, 2007 11:10 AM

Re: Multiple decisions from Griswald, to Roe, to Lawrence & Good ridge have confirmed this striking subversion of democracy.

Always ignored in the social Right's ostentatious hand-wringing about Democracy when Court decisions do not go their way is the fact that the US was never intended to be a pure majoritarian democracy; indeed, the Founders had a horror of that sort of "mobocracy" and they created a number of anti-majoritarian features in the structures of our governance. Judicial review happens to be one of those features. Now I'm willing to agree that courts do make bad decisions, but I still think we're better off with courts that make bad decisions than we would be with powerless courts unable to check the other branches of government. Nobody ever proposes junking Congress simply because Congress has pased some notably bad laws. Why treat the courts as illegitmate features of government simply because you don't get your way in them?

Re: On the contrary, desegregation of schools is NOT what set off the culture wars.

Actually it is. The Religious Right got kick-started into action when the Carter administration pulled the tax exemptions for its "segregation academies", white-only church schools that many southerners had used as an end-run around desegreation.

Re: Because most of those decisions antagonized the broad majority of the American public.

You will have to search high and low to find people who think the government should be able to outright ban birth control. For that matter even sodomy laws had only minority support as witness the fact that most states had already junked them long before Lawrence.

Re: If the right to privacy means the right to sodmize 20 men in one night through a hole in the wall at a nightclub

This is not a protected right. Public sex acts are still against the law.

Posted by JonF | December 31, 2007 4:21 PM

The foolishness persists.

It is a conscious/unconscious tactic of the left to analogize sex with race and therefore co-opt the moral authority of slavery & segregation in its bid for “equal rights” that the country rightfully rejects.

One seldom finds an argument for same-sex “marriage” or Lawrence that doesn’t use this transparent tactic.

The truth is that the analogy just doesn’t hold up – and without this spurious analogy the left has little cogent or compelling reasoning on the merits alone.

Multiple State Supreme Courts have now rejected this egrigious reasoning (comparing sexual orientation to race) When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. They include Washington, Maryland, New York & now Road Island.

The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy.Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of anti—miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together.

Note this quote rebuke of same-sex “marriage” offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

As dismissals of the Loving v Virginia case goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually an analogy that doesn’t hold up precisely because it is not the same kind of things being compared.

A more substantive reason for the dismissal of the analogy is best portrayed in the Washington decision.

“We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted: the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding through judicial fiat.

Posted by Fitz | January 2, 2008 5:57 PM

Re: Multiple State Supreme Courts have now rejected this egrigious reasoning (comparing sexual orientation to race) When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant.

For the record I do not believe that same sex mariage should be decided in courts either. But I do wonder what's going to happen when some state enacts SSM legislatively without any judicial coercion. That's going to happen as soon as Der Arnold departs the scene in California since it was only his veto that has prevented this. Will the rightwingers acquiesce to this exercize of democracy and accept defeat gracefully? Or will they, without batting a hypocritical eyelash, take up the fears of Adams and Hamilton about unchecked majorities and the danger of mob rule? The rhetorical reversal should make for some interesting political ju-jitsu.

Posted by Jonf | January 3, 2008 5:26 PM

JonF
"For the record I do not believe that same sex mariage should be decided in courts either."

What’s interesting about this is how effective a strategy it is. Without court imposition of same-sex "marriage" in multiple states from Mass, to Vermont, New Jersey & Hawaii - even civil unions would have been DOA or greatly diminished as to the legal status associated with marriage.

"Will the right-wingers acquiesce to this exercise of democracy and accept defeat gracefully?"

Well there are a couple of legal questions still in the way #1. _ does the ballot initiative defining marriage require another ballot initiative to reverse it.

#2. The very real possibility that such a move would inspire a State Constitutional Amendment. This is a legitimate process exercised in multiple other States & California.

It is in no way hypocritical to say that Judicial Usurpation is illegitimate government while at the same time thinking X or Y public policy is wrong headed even when advanced by legitimate legislative authority.

It may be beneath you JonF, however it was the legal strategy of same-sex “marriage” advocates to use court imposed SS “M” as a vehicle to catapult there agenda into the mainstream were friendly legislatures could then have political cover to do what was previously politically untenable.

Posted by Fitz | January 3, 2008 7:56 PM