The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Rethinking the NY Marriage Decision

Slate included my previous post in its coverage of reaction to the New York appeals court ruling on same-sex marriage. I’m glad they did because it brought to my attention Nick Gillespie’s post over at Reason.

I’m sympathetic to the idea that deciding issues such as this one via legislatures minimizes social disruption and backlash… Yet it always seems to be folks who are not in the minority that advance that sort of argument. It’s easy to counsel gays who want to get hitched to hurry up and wait if you’re not gay, or to sign on to a status quo social contract that gives you the shit end of the stick if you’re not gay. Which is not to say the courts should be deciding all manner of social policy; it’s just to raise a point inspired by the judge’s refusal to predict what future generations will think down the line (especially since it seems absolutely certain to me that future generations will have absolutely no problem with gay marriage).

Y’know something? He’s right. And I’m embarrassed that I didn’t consider that point myself when I was trying to put a more positive spin on it.

Also, I’m embarrassed that I didn’t get it the first time because of the number of times I’ve railed against slow social change for the exact same reasons that Nick mentioned in his post, and because it underscores a point I made in my majoritarianism vs. equality post earlier this week.

First, Nick’s exactly right that the “go slow” approach winds up meaning that people have to suffer discrimination much longer, and without remedy. In that sense, the only people who benefit from that approach are the people who want to discriminate, and people whose sensibilities won’t be disturbed by a change in the status quo (because they already benefit from the status quo). It means more Laurel Hesters, because it may take lifetimes to legislate same-sex marriage state by state; time in which our families will continue to suffer the consequences of lacking the rights and protections of marriage. But at least the rest of the country won’t have to be “uncomfortable.”

Like I said before, the judicial route is an important and valid part of any strategy to achieve equality; just as valid as the legislative route and with one clear benefit: it can rapidly alter social policy to give families rights and protections they’d otherwise lack for decades more, and offers them a way to remedy discrimination when they come up against it rather than simply having to live with it. In other words, the courts can dispense justice with a shovel rather than a teaspoon.

Are there limitations to this strategy? Sure. The one thing the courts can’t do is change people’s hearts and minds. The court can say that you don’t have the right to discriminate against me and my family, and that there may be penalties for doing so, but it can’t make you like me or my family. Just like when previous civil rights rulings came down; the legal landscape of rights and protections shifted, but the rulings didn’t do anything to decrease racism. (In some cases, though, they did jump start the legislative process.)

Did they cause some unrest and social upheaval? Yes. But people also had opportunities they wouldn’t have had otherwise, and legal remedies against discrimination they didn’t have before.

Then there’s the reality that our system currently recognizes that the will of the majority may sometimes be the exact opposite of justice. In fact, the will of the majority may be in direct opposition to both the letter and spirit of the law.That’s why it offers minorities a judicial route to seek justice alongside the legislative route. I’m no legal scholar or constitutional expert, but at least that’s my layman’s understanding of how and why things work the way they do.

Losing that route to justice would be a huge loss to anyone who finds themselves in the minority and facing an injustice that happens to have popular support, because all we’re left with is absolute majority rule. And in that circumstance nobody has any inalienable rights that can’t be taken away at the whim of the mob.

Should the judicial route be the only strategy for working towards justice and equality? No. The legislative route and the public education route are just as important, and if employed effectively, they can work in tandem with the judicial strategy until one or the other, or some combination of the three yields success; and sooner than any single one of them could alone.

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