Word came from Hotline yesterday that around 3pm today the New Jersey Supreme Court will lob a same-sex marriage grenade decision into the middle of a pre-election period that’s already had more than its share of gay-related news. And while the Hotline post declares it’s becoming an “article of faith” that these amendments don’t bring “angry conservatives” to the polls, I’m not exactly sure how it will play out. It may be that it doesn’t have to bring them to the polls in numbers, but just enough of them to deliver even a 1% margin of victory.
Chris Crain says that exploiting fears about same-sex marriage helped Republicans in swing states like Ohio in 2004. And though polls may have shifted somewhat, and margins harrowed on state anti-gay marriage amendments this year, the issue still doesn’t have to help Republicans a lot in order to help them win. It just has to help them enough. Close, after all, only counts in horseshoes and …. well. You know. But, whether or not the ruling is a flaming pink hand grenade thrown into an already tumultuous campaign season, I can’t say that it’s a bad thing that there’s a case for the New Jersey Supreme Court to rule on in the first place.
If nothing else, I find it highly appropriate that this is happening in the state where Laurel Hester fought her battle for justice and dignity, even as she was dying. I can’t quite bring myself to join in the hand-wringing about the fact that another court ruling on same-sex marriage is about to come down, nor does the possibility make want to cower in fear that it might actually come down in favor of gay couples in New Jersey. Unlike Stephen Miller, I don’t think we should abandon the courts as a means of obtaining justice.
The political process is where the battle for marriage equality should be fought, not the courts. Through the political process, the public could be educated, and hearts (and minds) changed. But one party is actively hostile, and the other is missing in action.
Why does it have to be an either/or question? Why not both a legal and a legislative strategy?
But what bothers me most is the apparent abandonment of the courts as a means for minorities to obtain justice, even when justice is the opposite of what the majority wants. Maybe feeling that way has to do with being an African American with enough knowledge of history to know that there were court cases that played a pivotal role in the civil rights movement, that opened up opportunities for African Americans that would probably have remained closed for much longer if people decided to give the majority time to come around. Say a decade or two. Or three. Maybe it comes from knowing that if it weren’t for those cases, I might not even be where I am in my life right now, because of opportunities that would have been nonexistent or that would have taken much longer to open up.
It comes back to the same old question of majoritarianism vs. equality, and alternate choice of incrementalism and continued inequality.
What’s unsaid and unquestioned in all of the arguments above is the increasing conservative push for majoritarianism. Or, to put it plainly, absolute majority rule. Might, in other words, makes right. The majority is automatically right, no matter what it wants or doesn’t, because it’s the majority. Only the current crop of Republicans and religious conservatives go a step further than traditional majoritarianism, by seeking to bar a future majority from disagreeing with the (perceived) current majority.
What’s scary is that the creeping support for majoritarianism may result in a situation where no one has any “unalienable rights,” that the majority can’t take away, because the two avenues minorities have traditionally had to access justice that the majority withholds — the courts and the legislature— will have been delegitimized fo that purpose.They’ll henceforth exist only for the purpose of enforcing the will of the majority because, as noted above, the majority can’t be wrong.
What’s scarier is that some pretty smart people either don’t seem to realize this, or just don’t question it.
So, even if the New Jersey court rules in favor of marriage equality and causes the issue to become part of the debate in the run-up to elections, I’ll celebrate the decision because it will at least mean that gay couples in New Jersey will have rights and protections the wouldn’t otherwise have had if they hadn’t gone the judicial route. That’s the difference between gradual vs. immediate social change, I guess. The former always means that those who are denied justice have to suffer injustice for a longer time, but the majority can comfortably take its time about changing a status quo that currently works in its favor. The latter almost always means that the aggrieved receive justice sooner than it might have been delivered to them at the acquiescence of the majority, but at the cost of upsetting the status quo.
If it’s a choice between getting our families rights and protections they need right now or continuing to go without justice while we wait for the majority to come around, I’ll probably always choose the first option. To do otherwise is like saying that Jesse Helms was right when he said that desegregation mandated by the courts shouldn’ have happened, because segregationist whites would have eventually give up on their own a system that empowered them and gave them power over African Americans.
It feels like saying that Frederick Douglas was wrong when he said this.
Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.
Or at the very least it feels like paraphrasing Douglas to read, “Power concedes nothing, unless you ask it nicely enough and long enough.”
How nicely and how long remains to be seen. Who wants to find out?