Sunday, September 13, 2015

Obergefell v. Hodges (gay marriage) and Democracy

(This was written just after Obergefell was released. The predictions, rather than the commentary, seem to so far be valid.)

This is a beginning, not an end. Already some counties are threatening to stop issuing marriage licenses for all couples. That probably will not stand, since it weighs so heavily against fathers—the religious right is nothing if not patriarchal—but there will be continued, possibly violent, resistance at the state and local level. We may also see further attacks on the 14th amendment, which, if successful, would be deeply destructive of human rights in the United States.

Gay marriage, even before it achieved majority acceptance, was popular, yet could not even be debated before most state legislatures or the national Congress. Reactionaries with a sufficiently motivated group of voters behind them can block almost anything in any US legislature. At the state level, it is not hard for a determined faction to destroy the career of most legislators; at the Federal level, it is easy for any faction to make sure that a measure without overwhelming popular support fails in the Senate. So this is not political cowardice, but political reason; how the system works. That, like Roe, this decision had to be achieved judicially in most states and at the federal level, is an indictment of our democracy. The US legislative process is not merely conservative, as might be reasonable, but actively reactionary and the various legislatures reflect our fears, yet not our aspirations. Undemocratically, a change in law may be delayed indefinitely by minority pressure to keep the various legislative bodies from acting on it. Because the legislatures did not act in this matter, despite much pressure, gay rights activists brought the issue to the Courts.

Obergefell hinges on the 14th amendment, the law that affirmed, once and for all, that African-Americans were citizens and entitled to the same legal rights as all US citizens. Gay rights weren't even on the agenda when the 14th amendment was passed. It's a stretch, though a well-argued one, to make it to cover gay marriage. This practice of stretching the law in default of, and sometimes in contradiction to, legislative action, reduces debate to debate among the Supreme Court Justices. Instead of a debate over the law by elected officials, it is only the unelected Justices and lawyers who hold the debate, and make the decision. This is not even remotely democratic, and apt to favor the party which appointed the Justices. Citizens United, which has legalized unlimited corporate spending in political campaigns, is another such stretch.

Stretching the law at need is a poor substitute for public debate and legislative process. It is not, to be sure, a new thing. Supreme Court decisions both famous and infamous have shaped the United States, from Dred Scott to Brown v the Board of Education and now Obergefell. That we have come to rely on this because our legislative system is fear-dominated and tends to stagnation is cause for great concern.

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