The Wall Street Journal interviewed Jeff Bell, a conservative thinker of sorts, on the subject of social issues and Rick Santorum's recent surge. The upshot of the article is Bell's notion that conservative social issues will send the GOP to victory in 2012 and help create a permanent Republican majority in politics. This runs against traditional wisdom, which regards such social issues as divisive and ultimately off-putting to swing voters. The title of Bell's forthcoming book, "The Case for Polarized Politics," reveals what he thinks of such an argument.
What I find immediately interesting about Bell's point of view is not so much his analysis of current politics (it seems transparently wrong about the tenor of conservative politics), but his attempt to justify his position as morally true. That is, he regards the socially conservative positions he espouses as objectively right. If the interview is to be believed, he believes that this truth is grounded in History (capital "H" History). As such, it is narrative that creates moral meaning, that in essence give norms their objective reality. (For anyone interested in a theoretical position endorsing this, see Robert M. Cover's article "Foreword: Nomos and Narrative," in the Harvard Law Review, volume 97 (1983-1984).)
So what is Bell's narrative? The roots of social conservatism lie in the Revolution. "Nature's God is the only authority cited in the Declaration of Independence," said Bell, and he then says that natural law is god-given, although conveniently non-denominational. "If you believe that rights are unalienable and that they come from God, the odds are you're a social conservative." This position then allows Bell one more intervention. The Tea Party has made a connection with the Founding one of its central tenets. (Economic and social conservatives unite!) In Bell's reading, "liberals" have (since the French Revolution) attempted to pull down the institutions of family and religion. Obama's presidency proves this. After all, he let gays into the military and took on the Catholic church over contraception.
I won't comment on the weakness of the narrative--it would be unfair given that it is not fleshed out. Suffice it to say that natural law had obvious Christian roots, but the beginnings of liberal theory (Grotius, Hobbes, Pufendorf, Locke, etc.) divorced natural law from the traditional hierarchical society that had once dominated political understandings of politics. Natural law became at first a theoretical and then later a political attack on hierarchy. This meant an attack on slavery, monarchy, and--wait for it--traditional marriage. Of course, "traditional marriage" at the time of the Revolution meant the absolute subjection of women to men--women who literally lost their legal identity to their husbands, surrendered their property, their wages, and their right to defend themselves in court from attack. Conservatives who opposed them complained that to grant women the right to their own property would undermine the "natural" foundation of society. Women thought otherwise. Some men did too, and marriage was reformed (a process taking generations),and ultimately brought into line with the equality implicit in natural law thinking.
This historical interlude is, I repeat, not meant to comment on Bell's untenable historical narrative, but rather to illustrate the ways in which narrative can construct meaning. In Bell's narrative, he wishes to draw a line through time which connects today's social conservatives to the Founders. The line that connects them is respect for traditional institutions and a belief in God. These are absolute values, in Bell's reading. And the narrative gives them objective value. But the objective truth to which he clings is a chimera. And this, if he is not aware of it, ultimately dooms not so much his analysis of present politics as it does his own pretended morality.
Perhaps in a future post I will comment more about the substance of his narrative. At present it deserves no comment simply because it is so patently absurd. But perhaps after I have paused to read the comments on the WSJ post I will see whether a significant segment of the population actually takes this seriously.
Showing posts with label domestic marriage. Show all posts
Showing posts with label domestic marriage. Show all posts
Saturday, February 18, 2012
Thursday, March 6, 2008
Gay Marriage, Equal Protection
On March 4, the California Supreme Court heard arguments in the _Marriage Cases_, a legal challenge to the state's ban on gay marriage. It is a complicated series of cases that raise fundamental questions about fairness and tolerance, as well as tradition and history. Legally it pits competing claims of equal protection against the state's police power--its right to regulate the health, welfare, and morals of its residents.
But the case is more complicated than even this. In our recent constitutional and legal past, the United States experienced a national backlash against the extension of civil rights to marginal groups. From the 1940s on, all three branches of the federal government have demonstrated a willingness to protect the rights of U.S. citizens against states and individuals who threatened them. Beginning with African-Americans and eventually extending to women, Asians, and other minorities, the language of rights claims became prominent in America.
The 1980s "Reagan Revolution" was the first concerted backlash against this new, rights-oriented culture. Its success was not precisely a rollback of the civil rights movement--after all, part of the civil rights movement's success was in changing the predominant culture to such a profound degree that even right wingers could no longer profess openly racist views and get away with it. Tolerance became normalized.
This did not please some. The interest group known as the "religious right" began expressing dismay that the dominant culture was *too* tolerant. Its tolerance was creating a culture of relativity that equated with permissiveness. The right already had political muscle, which it flexed powerfully in 1992, forcing President Bush I to shuffle to the right and abandon his own centrist and pragmatic policies and, for these sins, lose the election to Bill Clinton. The religious right pressed on, joining the "Republican Insurgency" of Newt Gingrich, and ultimately becoming a decisive factor in garnering electoral votes for George W. Bush in 2000 and 2004.
This was the context within which the subject of gay marriage became headline news. When the Massachusetts Supreme Court said in 2003 that the marriage law of its state could not exclude homosexual unions (because it violated the equal protection of the law to homosexuals), the reaction became nationwide. A number of states, including Georgia, sought to amend their constitutions to define marriage as being between one man and one woman. That these votes were often brought during key national elections (the presidential election year of 2004, for example) should surprise no one. Karl Rove helped organize the backlash to bring evangelicals to the polls at precisely the moment that Bush needed votes to defeat John Kerry. It should also be noted that the first stages of this backlash were in the mid-90s, culminating in the Congress passing the Defense of Marriage Act (DOMA) in 1996 (another election year). Bill Clinton signed it into law, and the Clinton campaign trumpeted this defense of marriage in ads on southern and midwestern radio stations while remaining mute about it in the national race. So much for the progressive Clintons.
Which brings us to California. It is true that state law, not the state Constitution, bans gay marriage. But it also extends all the benefits of marriage that the state can provide to gay couples in the form of "domestic partnerships." The only difference between a domestic partnership and a marriage in California is that the domestic partnership will not be recognized by other states that prohibit gay unions. This has nothing to do with California law, but rather with DOMA (mentioned above). DOMA provided that no state could be compelled to recognize a marriage from another state that was not between a man and a woman. Whether this is a legitimate exercise of the full faith and credit clause has not been scrutinized judicially.
Does the California law violate equal protection of laws? The case recalls the question of segregation that was presented during the famous cases of Plessey v. Ferguson (1898) and Brown v. Board of Education (1954). In Plessey, the high court ruled that separate but equal facilities for blacks and whites were not a violation of the equal protection clause of the Fourteenth Amendment. If blacks chose to view it as a badge of their second class citizenship, opined the Court, that was their choice, not the reality. In Brown, famously, the Court said the reverse: that separation was inherently unequal.
Is it true with marriage? Do homosexual couples in California suffer from not being able to call their union a "marriage," even if state law extends them the same privileges as married couples under a different name? Is it an invocation of the discredited "separate but equal" standard?
I'll avoid making a direct answer. Suffice it to say that the issues are even more complex than I let on. And the fact that California's story is wrapped up in a national narrative makes it all the more interesting. We are witnessing, perhaps, one of the great constitutional struggles of our day that will be as trenchantly written about by later generations as was the 100 year struggle for civil rights.
But the case is more complicated than even this. In our recent constitutional and legal past, the United States experienced a national backlash against the extension of civil rights to marginal groups. From the 1940s on, all three branches of the federal government have demonstrated a willingness to protect the rights of U.S. citizens against states and individuals who threatened them. Beginning with African-Americans and eventually extending to women, Asians, and other minorities, the language of rights claims became prominent in America.
The 1980s "Reagan Revolution" was the first concerted backlash against this new, rights-oriented culture. Its success was not precisely a rollback of the civil rights movement--after all, part of the civil rights movement's success was in changing the predominant culture to such a profound degree that even right wingers could no longer profess openly racist views and get away with it. Tolerance became normalized.
This did not please some. The interest group known as the "religious right" began expressing dismay that the dominant culture was *too* tolerant. Its tolerance was creating a culture of relativity that equated with permissiveness. The right already had political muscle, which it flexed powerfully in 1992, forcing President Bush I to shuffle to the right and abandon his own centrist and pragmatic policies and, for these sins, lose the election to Bill Clinton. The religious right pressed on, joining the "Republican Insurgency" of Newt Gingrich, and ultimately becoming a decisive factor in garnering electoral votes for George W. Bush in 2000 and 2004.
This was the context within which the subject of gay marriage became headline news. When the Massachusetts Supreme Court said in 2003 that the marriage law of its state could not exclude homosexual unions (because it violated the equal protection of the law to homosexuals), the reaction became nationwide. A number of states, including Georgia, sought to amend their constitutions to define marriage as being between one man and one woman. That these votes were often brought during key national elections (the presidential election year of 2004, for example) should surprise no one. Karl Rove helped organize the backlash to bring evangelicals to the polls at precisely the moment that Bush needed votes to defeat John Kerry. It should also be noted that the first stages of this backlash were in the mid-90s, culminating in the Congress passing the Defense of Marriage Act (DOMA) in 1996 (another election year). Bill Clinton signed it into law, and the Clinton campaign trumpeted this defense of marriage in ads on southern and midwestern radio stations while remaining mute about it in the national race. So much for the progressive Clintons.
Which brings us to California. It is true that state law, not the state Constitution, bans gay marriage. But it also extends all the benefits of marriage that the state can provide to gay couples in the form of "domestic partnerships." The only difference between a domestic partnership and a marriage in California is that the domestic partnership will not be recognized by other states that prohibit gay unions. This has nothing to do with California law, but rather with DOMA (mentioned above). DOMA provided that no state could be compelled to recognize a marriage from another state that was not between a man and a woman. Whether this is a legitimate exercise of the full faith and credit clause has not been scrutinized judicially.
Does the California law violate equal protection of laws? The case recalls the question of segregation that was presented during the famous cases of Plessey v. Ferguson (1898) and Brown v. Board of Education (1954). In Plessey, the high court ruled that separate but equal facilities for blacks and whites were not a violation of the equal protection clause of the Fourteenth Amendment. If blacks chose to view it as a badge of their second class citizenship, opined the Court, that was their choice, not the reality. In Brown, famously, the Court said the reverse: that separation was inherently unequal.
Is it true with marriage? Do homosexual couples in California suffer from not being able to call their union a "marriage," even if state law extends them the same privileges as married couples under a different name? Is it an invocation of the discredited "separate but equal" standard?
I'll avoid making a direct answer. Suffice it to say that the issues are even more complex than I let on. And the fact that California's story is wrapped up in a national narrative makes it all the more interesting. We are witnessing, perhaps, one of the great constitutional struggles of our day that will be as trenchantly written about by later generations as was the 100 year struggle for civil rights.
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