Barry Eisler

Friday, May 16, 2008

Those Crazy Conservative Activists Again

Yesterday's California Supreme Court ruling, relying on the California state constitution to find unconstitutional the exclusion of gays from the California institution of marriage, is already being (predictably) misunderstood and mischaracterized. For an excellent summary of the opinion and a debunking of the fallacious attacks against it, check out Glenn Greenwald.

Probably the most common charge being leveled against the California court is that its judges were "activist," and thwarted the will of the people, or usurped the role of the legislature, or both. I find these vague charges of judicial activism tiresome: they're raised only when courts reach outcomes the people howling "Activists!" don't like. And the "Activist!" charges ignore the excruciatingly obvious, fundamental fact that when a court in a democracy interprets a constitution, the court is *supposed to* overturn laws enacted by the people or their representatives if those laws violate the constitution. The will of the people, or the laws of the legislature, prevail in a democracy subject to the constitution. So if you don't want "activist" judges overturning popular laws, you might as well get rid of the constitution itself, which is designed and intended precisely to place limits on how the people and the legislature can express their wills.

If the point above doesn't make sense to you, think of how the Supreme Court Justices in Brown v Board of Education overturned the "separate but equal" segregated educational framework that had been enacted with popular backing by the duly elected representatives of so many southern states. If you want to argue that courts shouldn't as a matter of principal overturn laws they find violative of their constitutions, you should be prepared to argue that the Brown court, too, exceeded its authority.

In fact, anyone who wants to argue that gay marriage should be left to individual states (and remember, the California ruling was by a state court, pursuant to a state constitution, and binding only in California), you should be prepared to argue too that Brown was wrongly decided -- that "separate but equal" education did not violate the Constitution's 14th Amendment guarantee of equal protection of the laws and should have been a matter for individual states to decide for themselves. I don't see how you can rationally argue that "separate but equal" education was unconstitutional and was rightly struck down by a court as such, but that "separate but equal" marriage (or no gay marriage at all) is constitutional and should be left to states to decide.

You might have surmised by now that I'm not impressed by the notion that gays should be able to form "civil unions" equivalent in all ways but name to marriage (this was key to the California court's finding -- that there is, after all, a great deal in a name). I'd be equally impressed by the notion that blacks should be permitted to attend institutions of higher education as long as the institutions they were permitted to attend were not called "colleges" or "universities."

Here's a little thought experiment to clarify things. Today's Wall Street Journal has an entirely predictable editorial, "Gay Marriage Returns," lamenting the California court's ruling. Let's see how the editorial reads if we replace references to "gay marriage" throughout with references to "black-white intermarriage," instead. If you can distinguish the rights of blacks and whites to marry each other from the rights of gays to marry each other, I'd like to hear the argument (and note that the California court cited Perez v Sharp, where in 1948 the California court struck down black-white marriage bans on 14th Amendment equal protection grounds).

Just when the news was filling with stories about a Republican Party gasping for air, along comes the California Supreme Court's 4-3 decision yesterday legislating black-white intermarriage. The GOP certainly hasn't done anything to deserve such luck...

California's Supreme Court is not the law of the land, but its 4-3 ruling, titled "In re Marriage Cases" for six consolidated appeals, explicitly told both the state's voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a "marriage" between a white man and a white woman or a black man and black woman...

While the popular spin on these black-white intermarriage rulings holds that this is an all-or-nothing war between Democrats and Republicans, nothing could be further from the truth. Absent an occasional burst of judicial fiat such as this, the American people have been conducting an admirable exercise in democratic discovery about black-white intermarriage.

While 27 states have passed constitutional amendments banning black-white intermarriage, reflecting what opinion polls show to be overwhelming public sentiment, most Americans do not want the U.S. Constitution amended to prohibit black-white intermarriage. Back in 2004, some 52% of Bush voters favored black-white unions stopping short of a "marriage" designation. This was also Mr. Bush's position.

In other words, the American people, rather than simply shunning the desire of some blacks and whites to marry each other, are clearly willing to take up the matter and work it through their legislatures. California's legislature has passed bills twice to authorize black-white intermarriage; both were vetoed by Governor Arnold Schwarzenegger. If California can find a Governor willing to sign off, so be it. It is preposterous, though, to let four judges decide this for a state of more than 36 million diverse individuals.

Most of all, the black community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.

If you don't think denying gays access to marriage denies them equal protection of the laws, you must also think such a denial would be constitutional with regard to blacks or other minorities. Do you?

Ultimately, opponents of gay marriage seek to legislate based not on logic, but on the peculiarities of their own preferences. They're guided not by the consistent application of law, but by the fickle idiosyncrasies of their own taste. Rather than reaching outcomes through the application of principle, they seek to conjure principles to support outcomes at which they have already comfortably arrived. And, with the usual unintended irony, they then accuse their opponents of "judicial activism." If it weren't so sad, it would be hilarious.
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Blogger Melissa Bradley said...

Very interesting, provocative exercise, Barry. My sister-in-law and I recently had a huge discussion about how forty years or so ago she and my brother would have been illegal in many states. I've never understood why a gay man or a lesbian women should not be able to take his or her partner's name or give his or her partner their name. Or have all the benefits of being a legal married couple. And it harm none...Separate but equal is such a fallacy. There is no equality in separation. Anything that calls for a division in society is already saying one segment is less.

Friday, May 16, 2008 10:58:00 AM  
Anonymous Anonymous said...

Hmmm, I lived in New Zealand for a few years. They gave a different title to same sex peoples unions called a "civil union". I think it was good and voted positive in a referendum for it. I think thats enough. Gay couples can be legally bound and have the protection of law in the event of break up and other benefits akin to married peoples. But marriage is between men and woman as I feel is child rearing. If gay couples choose their lifestyle then they must adhere to the limitations that lifestyle places on them. For example, I love scuba diving but I must carry an oxygen tank on my back and wear fins whilst underwater. I am thankful for just that. What good would it do me to scream at God "why don't you give me gills and flippers?" I am hardly religious but you get my point. Gay people are not the same as same sex people just as scuba divers are not the same as fish. Live with it and stop screaming about how hard done by you are!

Saturday, May 17, 2008 8:34:00 AM  
Blogger Barry said...

I'm letting this one run because it's so pristinely stupid it serves nicely as a negative example.

"New Zealand... gave a different title to same sex peoples unions called a "civil union". I think it was good and voted positive in a referendum for it. I think thats enough. Gay couples can be legally bound and have the protection of law in the event of break up and other benefits akin to married peoples."

So again, it's okay for, say, blacks to be permitted to attend institutions of higher learning as long as those institutions aren't called colleges or universities? Please explain the difference between blacks and university and gays and marriage. And between black-white intermarriage and gay marriage.

"But marriage is between men and woman"

This is like arguing, "It is what it is."

"as I feel is child rearing."

What is the relevance of your feelings? Single mothers shouldn't be allowed to rear children? What if an aunt wants to move in and help?

"If gay couples choose their"

What evidence do you have that people choose their sexuality? Did you choose yours?

"then they must adhere to the limitations that places on them."

"The limits 'that life style' places on them? No, society is placing the limit on the lifestyle available to gays by not permitting them to marry.

"For example, I love scuba diving but I must carry an oxygen tank on my back and wear fins whilst underwater. I am thankful for just that. What good would it do me to scream at God "why don't you give me gills and flippers?" I am hardly religious but you get my point."

I don't get your point at all and I doubt you do, either. Society forbidding gays to marry is the same as humans not being able to breathe underwater? Seriously, Anonymous, what are you talking about?

"Gay people are not the same as same sex people just as scuba divers are not the same as fish. Live with it and stop screaming about how hard done by you are!"

More bizarre aquatic references. I don't hear anyone screaming here other than you in that last sentence.

"Just be happy to have the next best thing to marriage after all,"

I assume you would have offered the same magnanimous advice to blacks who wanted to attend white schools?

"you will never really be satisfied once you get your gills and fins anyway. you will just get up the tantrums for another thing"

The ongoing aquatic bizarro aside, what evidence do you have for this assertion? And what do you mean by tantrums?

If you want to post here again, you'll need to first respond to the questions I put to you in this comment and to the arguments I raised in my post. I don't have time to respond to every ignorant, unthought-out, self-pleasuring rant that people want to post on my space. I write these articles to engage. If you're too lazy or too afraid to engage, why bother posting here at all?


Saturday, May 17, 2008 9:57:00 AM  
Blogger Swanny said...

Well put Barry. Politics (faith) of the situation aside, I've never been able to understand the duality of the homosexuality issue.

It seems to me that the same people who have such a problem with homosexuals (particularly gay men), often seem to find two women together, especially in a sexual way, incredibly exciting.

Talk about your double standards. Are they suggesting that homosexuality is wrong unless it takes a form that turns straight men on?

Why can't thses people see that, in a world as dark and troubled as ours can be, a little more love is never a bad thing.

And for those who believe that God hates homosexuals: doesn't it stand to reason that God (if He exists) a. doesn't hate anybody (see Jesus, also the Golden Rule) or b. if He is capable of hate, humanity has given Him many more reasons that are better than whether or not your sexual preference is someone who has different "plumbing" than your own.

Sorry about the run-on sentence. Great post sir!

Sunday, May 18, 2008 5:31:00 PM  
Blogger Joshua James said...


At the risk of sounding like an ass-kisser, every day I become a bigger and bigger fan of yours.

And I was a fan to begin with.

That was a righteous and yet well-reasoned smack-down, and I salute you for it.

I'm in an inter-racial marriage, as I think you know, and it boggles my mind that, in my lifetime, when I was a wee lad, it was against the law for my wife and I to marry in, I think, 14 states in this country.

Looking back, the arguments against interracial marriages were the same ones being put forth today against gay marriages.

In other words, bullshit arguments.

Very, very nice post.

Sunday, May 18, 2008 5:35:00 PM  
Anonymous ShooterJ said...

The difference between heterosexual inter-racial marriages and homosexual marriages is that one was biologically or divinely designed to naturally reproduce and the other was not.

Sunday, May 18, 2008 10:45:00 PM  
Blogger Joshua James said...

Actually Shooter, you cannot say one union is divinely designed and one is not - if you'd read your history, you'd know that the folks against interracial marriage quoted the bible extensively and said was against divine intentions of god . . . in fact, that is still said in many countries as a reason against it.

So there's that.

Plus, what about those folks who don't wish to believe in the divine?

Wait, those people have marriage licenses . . . right. Marriage is not a religious issue, nor is it a biological issue (on a side note, homosexuality is a biological trait, just as heterosexuality is, it exists in nature in other species . . . many other species have a percentage of homosexual creatures in their number, and usually get along fine with the pack - so homosexual unions in nature are also biologically designed and you're wrong on both counts) . . . in the end, marriage is a legal issue. It's a contract between two people who wish to join their property, personal finances and time together . . . it's a legal issue and that's why a couple has to get a license . . . if it wasn't a legal issue, they wouldn't need a license.

Now a couple can go to truth, get married before their god and go home and be happy. but until they get a license, they're not considered legally married until they fulfill the requirements of that individual states (common law marriages kick in at 7 years of co-habitation for most states) -

So to restate . . . opponents of interracial marriage a few decades ago claimed it was against biology and divine will . . . they were shown to be the wrong on both counts for that.

Opponents of same sex marriages make the same arguments against it (see yours above) and thus they are on the same shakey, illogical ground as the arguments against interracial marriage.

In the end, marriage is a legal issue, and the constitution of the United States says all individual citizens should have the same legals regardless of sex, creed, or color.

So there is that. Okay?

Monday, May 19, 2008 9:38:00 AM  
OpenID justinjacobson said...

shooterj, I take it, then, that you think we should forbid marriage between heterosexual couples who are unable or unwilling to procreate, e.g., a man who is sterile, a woman who has had a hysterectomy, an elderly couple? The procreation argument -- aside from being logically fallacious -- is simply a cover for anti-homosexual sentiment.

Monday, May 19, 2008 1:20:00 PM  
Blogger Joshua James said...

"Now a couple can go to truth, get married before their god and go home and be happy. but until they get a license, they're not considered legally married until they fulfill the requirements of that individual states (common law marriages kick in at 7 years of co-habitation for most states) - "

I meant to write - "Now a couple can go to CHURCH, in the above paragraph.

Oops. heh.

Monday, May 19, 2008 2:43:00 PM  
Blogger David Terrenoire said...

This is, without question, a civil rights issue. It is not the majority's right to deny a minority's right, even by vote.

Sunday, May 25, 2008 9:08:00 AM  
Blogger Patti Auburn said...

Great blog Barry. Logical and well stated.

As to shooterj and anonymous, using the argument of procreating or raising kids - your argument does not hold up - some of the ways it breaks down have already been addressed - but how about those gay men and women who are raising children. If we use your logic, it would be OK for them to marry?

If there is a god, I'm sure right now he/she is more concerned about the situation in Darfur, the earthquake victims in China, the cyclone victims in Myanmar, and all the other suffering going on in the world.

Monday, May 26, 2008 12:56:00 PM  
Blogger Louise Ure said...

The guts of the argument is constitutionality, as you've so ably described, Barry.

What I don't understand is why these anti-same sex marriage folks feel that their own unions are in jeopardy if same sex marriage is legal. Why must someone else's rights be trampled in order to protect my own?

Monday, May 26, 2008 3:16:00 PM  
Anonymous jh from toledo said...

"Let's see how the editorial reads if we replace references to "gay marriage" throughout with references to "black-white intermarriage," instead." That's your argument?

Let's replace references to 'gay marriage" throughout with references to "men and sheep", or "men and children". Does that prove that those are okay. To compare same sex marriage to opposite race is quite a stretch.

Why did I have to visit the site after a long break and get back to the same old discussions? But then, if I recall, you wouldn't mind your children seeing to men making out in the park...

Wednesday, May 28, 2008 4:28:00 PM  
Blogger Joshua James said...

jh, that argument of yours doesn't work, children and sheep are not able, per the law, to make choices for themselves, as adults are.

In fact, your argument is ridiculous and insulting . . . it's an easy neo-con trick to compare homosexuality to pedophilia and bestiality, when in reality they are NOTHING alike.

Just to say that again. Nothing alike. Homosexual acts between consenting adults are not against the law. Pedophilia and bestiality are (BTW, according to the true crime books in my library, most pediophiles are STRAIGHT) against the law, for good reasons in that they abuse someone or something that cannot defend itself . . . so your comparision again falls apart.

And again, it has nothing to do with the argument of equal rights for all citizens.

Marriage is a legal process for citizens. Children cannot get married here (unlike countries like Dubya's favorite, Saudi Arabia) because legally they're not adults who can make informed decisions.

So your silly-ass Tom Delay argument doesn't work, and it's bigoted to boot.

Thursday, May 29, 2008 10:02:00 AM  
Blogger Barry said...

Hi JH, nice to have you back. A few thoughts in regard to your post.

"Let's replace references to 'gay marriage' throughout with references to 'men and sheep', or 'men and children.'"

If you insist. But wouldn't it be more productive (and polite) if you would first address my analogy -- that prohibiting same sex marriage is no different from prohibiting interracial marriage? Otherwise, we'll just be talking past each other. Tell me what you believe makes same sex marriage different from interracial marriage, and I'll tell you why I believe your bestiality and pedophilia references are inapposite, fair enough?

"To compare same sex marriage to opposite race is quite a stretch."

JH, that sentence is an interesting topic sentence. But for a topic sentence to be anything more than a self-pleasuring, solipsistic opinion, it has to be followed by evidence and argument. Granted, opinions are easy, while evidence and opinion are hard, but if all you're interested in is self pleasure, why do it in public?

"Why did I have to visit the site after a long break and get back to the same old discussions?"

I don't know why you would come back for a visit, JH. That's a question you have to answer for yourself. As for why this discussion comes up repeatedly, I'd say this topic will be discussed and debated as long as ignorant, prejudiced people try to maintain an officially sanctioned regime of segregated marriage. But take heart -- you might have seen today that New York Governor David Paterson has directed all state agencies to recognize same-sex marriages performed in other jurisdictions. Also, polls show that marriage equality is opposed by the old and overwhelmingly favored by the young:

"Californians age 18-29 favor the idea of allowing gay and lesbian couples to marry by a greater than two to one margin (68% to 25%). Those in the 30-39 age group also approve of such marriages by 24 percentage points. However voters age 65 or older disapprove by a wide margin (55% to 36%)."

I imagine that a generation from now, we won't need to debate marriage segregation any more than today we need to debate racial segregation. At which point, you will no longer need to listen to these "same old discussions." Something to look forward to, no?

"But then, if I recall, you wouldn't mind your children seeing to men making out in the park..."

No more so than I'd mind them seeing a man and woman making out. Here, JH, you haven't even given me a topic sentence to work with, so I'm forced to guess at what you might be implying -- children would be damaged by such a sight? So I have to ask you: what do you think would happen if children saw two men making out in a park? What do you think would happen if they saw a man and a woman making out in a park? Do you object to both, on the same grounds? If not, what do you see as the difference?

Again, evidence and argument are hard... but they really are so much more productive. Give it a try and see for yourself...


Thursday, May 29, 2008 11:58:00 AM  
Blogger Bill said...

Barry: Sounds like you've got it all figured out. Maybe people who are argue same-sex marriage simply deny that any such thing is possible -- that is, a marriage, by definition, joins together a man and a woman.

The racial analogy is silly. If you bought a Playboy magazine, and Ms. July was black, you'd be like, ok, cool. If she had a dick and a pair of hairy balls, you'd be horrified (or at least surprised).

Gender cannot be abstracted out of the idea of marriage. Once you do that, you've abstracted the essence out of the definition and are left with coupling. That's not marriage, that's more akin to a corporation.

If you agree that marriage is inherently discriminatory, then why isn't ice-skating doubles competitions discriminatory.

"Same sex" marriage also requires our culture to now live on a more generic, abstract level. Warm words like mother and father and bride and groom get replaced by parent and partner. A woman has a wife? A man has a husband?

But isn't a wife by definition married to a husband? Isn't a husband by definition married to a wife? Is it really discriminatory to simply call things what they are?

Or maybe words can mean, as Humpty Dumpty said, anything we want them to mean. Very postmodern.

BTW: I just finished up Requiem. Nice little thriller. Enjoyed it very much.

Cheers. Bill

Friday, May 30, 2008 7:05:00 PM  
Anonymous Dale said...


You equate allowing a gay couple to marry with allowing marriage across racial lines. I find them different, for the reason that race is a social construct (i.e. not scientifically measurable or provable) whereas one's sex is a matter of fact.

Following your logic, if two males can marry, why not three males? Why not a two males and a horse?

I've posed this question to others before, but never received a logical argument, only an emotional one. As a huge admirer of your writing (and a man in a 24-year cross-racial marriage) I look forward to your reasoned response.

Friday, July 04, 2008 3:22:00 PM  
Blogger Barry said...

Dale, thanks for the comment and for the kind words about my books.

It might be that you haven't received a satisfactory answer to date because your question itself is hard to understand. Your argument seems to be: it's not okay to discriminate on matters of social construct (like race), but it is okay to discriminate on matters of fact (like sex). Even if I accept the distinction (which I don't really understand), wouldn't it follow that it would be all right to discriminate based on eye color? Left- and right-handedness? And any other genetically determined "matter of fact?"

If this isn't your argument, please help me understand better. But regardless, why would it be all right to discriminate on matters of "social construct" and not okay to discriminate on "matters of fact?" For purposes of discrimination, I just don't understand the distinction you're trying to make (and again, I'm not sure I understand it at all).

As for three males marrying each other, or two males and a horse, I think here you're asking a "where do we draw the line" question, is that right? If that's your point, I think the response is pretty obvious, and if you really don't see any difference between people marrying people and people "marrying" animals, I doubt there's anything I could say that might be useful.

May I ask a question in response? It's the obvious one, the one posed in my post, and you haven't even tried to answer it. It is: if a man and woman can marry each other, why can't a man and man? Addressing this question along the lines of "because then men could marry horses, too" seems at best an indirect way of coming to grips with the issue, and in fact strikes me as a bizarre and irrelevant attempt simply to avoid it.


Sunday, July 06, 2008 5:31:00 PM  
Anonymous Dale said...

Barry, thanks for your thoughtful comments. It's really quite meaningful to converse with someone whose writing has brought me so much pleasure over the years.

It does seem to me that the challenge of legitimizing gay marriage does confront the issue of "where do you draw the line." or, more directly, "why should the line be moved?" You said the response to that question is pretty obvious. I guess it isn't obvious to me.

So help me, please, because I really want to understand. Why should we move where the line is drawn? A man can't marry a child. A man can't marry a woman that's already married. A man can't marry another man. Why are the first two laws OK and the third one not?


Saturday, July 26, 2008 5:25:00 PM  
Anonymous Anonymous said...

Well I just found this blog, so I kind of missed these older posts, but I still have to put in my two cents. I don't think racism is a pure comparison with sexual practice. It's not the same. That being said, I think the real question isn't "Should gays be allowed to marry?" it's: "Should the government be allowed to sanction marriage at all?" And the answer, of course, is NO. This is a legal arrangement that should be between two people (or three, or ten, or twenty) and their lawyer(s).

And yes, I'm saying: Let gays marry. Let ten people get married. Let a woman have ten husbands and a man have ten wives and mind your own effing business, because what people do in the privacy of their own homes has nothing to do with anyone else, unless it causes harm to someone, and therefore becomes criminal behavior.

If we want to be independent-thinking liberated philosophers, we can't latch to one side of an argument like this just because it feels good. We have to seek out the true purpose of our government and eliminate the superfluous and/or unconstitutional.

But history has shown us that more often than not, people in a "free" society will vote their freedoms away quite readily. They do it to control people they disagree with, and they do it to feel safe. And they don't realize what they've lost until it's already gone. This won't be any different. Count on it.

Thursday, July 31, 2008 11:33:00 PM  

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