osewalrus (osewalrus) wrote,
osewalrus
osewalrus

Misjudging your moment in history

So a judge in MD joins 4 judges in MA and a judge in CA in finding a prohibition on gay marraige unconstitutional under the state constitution.

No this is MD, a fairly "blue" liberal state. Is there a reason why this could not have been done by legislation or a public referendum? This is what is happening in CA. They are having this debate in their legislature. Most recently, a bill to redefine marraige so it was not limited to a man and a woman narrowly passed the state legislature, but was vetoed by the Governor. But the supporters are undismayed. Every session, the bill picks up a few more supporters. Because the supporters of gay marraige are right and they understand the demographics favor them. Many who grew up under segregation got over their initial queasiness at sharing buses with black folks and now don't even think about having a black mayor, and their grand kids don't understand what all the fuss was about. And when the grandparents try to explain, "well, you see, that's just the way it was. I guess it was pretty stupid." Sure, there are some unrepentant folks, and other issues, but you could not get 15 states to pass constittuional amendments to outlaw "miscegenation".

The few folks taking the legislative track know the demographics are on their side. They will do the work and keep working until they win. Because when they win, their victory will rest on firm ground.

But folks hate to wait. When you feel like a second class citizen, when you lack legal standing and basic rights with regard to children, inheritance, medical care, etc., When people would rather give you something called "civil union" that is exactly like marraige except we don't call it marraige because "marraige is for, um, how do we put this delicately dear, "normal" people, not for *ahem* "your sort," Not that I'm judging mind!" Then yeah, you don't want to wait ten, twenty, whatever years for people to see the light. You will go to court and get your rights affirmed, just like that Plessy v. Feurgeson, umm....I mean Loving v. Virginia.

But while everyone likes to remember Loving, nobody likes to remember Plessy or the sad mess that came out of Reconstruction. Because the abolitionists and social reformers that attempted to reconstruct Southern Society to redistribute wealth and political power to enfranchise the former slave population and provide for their recompense and economic well being were absoolutely, positively, morally right. Result, when the reformers lost their political will against the united opposition of the South, Jim Crow rolled right on back in.

When Jews came to New Amsterdam, Peter Stuyvesant sought to impose on them the same limitations they knew in Europe. Had he succeeded, the course of U.S. history and Jewish history would have been very different. Even in Holland, the liberal mother country of the New Amsterdam colony, Jews were tolerated outsiders rather than citizens. But Asser Levy refused to accept this and go meekly to his fate. He sued in civil court and won. He established that Jews were real people capable of holding citizenship for the first time since the end of the Bar Kochba Revolt in 135 C.E. And he established the tradition of civil rights litigation.

He had the right moment in history.

Two hundred and fifty years later, as the enlightenment spread accross Europe, the walls of the ghettos came down and the official exclusion edicts ended as the old monarchist regimes were replaced by new forms of government. Accross the channel in England, Parliment officially removed the disabilities on Jews and granted them full rights as English citizens. This worked out very well in England, not so well in Europe.

So, what is the moment in history? Will the courts lead because society is basically ready to follow? Or by pushing too far ahead of the curve, will gay rights get set back for a hundred years? Plessy or Loving?

Sadly, the moment is not encouraging. Worse, it produces what are called "externalities," bad effects (at least from my view) that are shared with the rest of us.

While the reasons for the outcome of the 2004 election are debatable, there is a considerable body of opinion that the gay marraige decision by the Mass SJC and subsequent moves by local governments in other states to follow suit played a significant role in generating turn out for the Republicans. In states where anti-gay marraige amendments were on the ballots, many more social conservatives who had never voted showed up. Because they were showing up to "protect marraige," and while there voted the Republican party ticket so they could continue to do "God's work."

A chief concern for conservatives in 2006 is voter turnout. Turnout is always low in off year elections. But the democrats are energized and angry and therefore likely to turn out in high numbers even for an off year. Meanwhile, the social conservatives suffered a very disappointing year in 2005. Seeing government incompetence at the handling of Katrina, Harriet Meyers, the scandals, the collapse of fiscal discipline, the value to address bread and butter issues, etc., etc. are not going to make a conservative vote Democratic. But maybe you will just stay home.

But there is no way you will stay home if there is an anti-gay marraige amendment to your state constitution on the ballot. Or if you need to show up to support a "defense of marraige" amendment to the U.S. Constitution, which can't happen if those "queer loving, America hating Democrats" take back Congress.

I would regard the Republicans retaining the U.S. House and Senate as a negative externality. I would regard passage of an anti-gay marraige amendment to the state constitution here in Maryland as a negative externality. I would regard more states, even those outside of Maryland, passing such amendments as a negative externality. And certainly not worth the transient satisfaction of being right at the wrong time.

Yes, working for social change through the democratic process is hard, and the wait is long. But there is a story of Ho Chi Mihn when he was still fightint the French after WWII. Ho was very reluctant to take aid from the new Communist government in China, given China's history of involvement in Vietnam. When asked why he refused to take Chinese aid when it would hasten the day of liberation from the French Colonialists Ho reportedly replied: "Better to sniff French dung for a while than eat Chinese dung forever."

I'm grateful Asser Levy had the right moment in history. Perhaps the folks in Massachuesetts and MD and other places where lawsuits are pending are right. Perhaps this is the moment when a gentle nudge in the right direction by the courts overcomes the inertia and political cowardice of society and moves us to where we should be. At least I hope so.
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