Balkinization  

Sunday, November 30, 2003

JB

The Next Six Months

Tom Friedman asks people on the left to get behind the rebuilding and democratization of Iraq.

For my money, the right liberal approach to Iraq is to say: We can do it better. Which is why the sign I most hungered to see in London was, "Thanks, Mr. Bush. We'll take it from here."

Friedman and I agree that we cannot simply leave Iraq but must make the best of it. Having invaded Iraq, (which he supported and I did not) we must put it on the right course toward democracy. If we do not, we will be in much worse shape in the long run.

But Friedman's argument betrays the difficulty of his position. On the one hand, he insists that "[t]he next six months in Iraq - which will determine the prospects for democracy-building there - are the most important six months in U.S. foreign policy in a long, long time." On the other, he describes the Bush team as "a partisan, ideological, nonhealing administration" and concludes that the task of democratiziation "is way too important to leave it to the Bush team alone." I think he is right on both counts. We are at a crucial crossroads in American foreign policy and the Administration has shown that it is simply not up to the task. It has proven much better at invading and destroying than rebuilding.

What Friedman has not explained is what liberals should do in this crucial six month period given that Bush seems to show no signs of wanting to listen to anyone but his own advisors. It's one thing to say that liberals should work for a more democratic Iraq. It's quite another to support a President who will not listen to what they say and is likely to mangle the situation as badly as he has mangled the previous six months. If Friedman is correct, by the time the Democrats regain the White House (if they do!) it may well be too late. Bush may have ruined the possiblity of a democratic Iraq for years to come. And Democrats will be left to clean up the mess created by this most unwise adventure in world domination. What infuriates many people on the left, I would suggest, is that given Bush's track record so far, they do not believe that he is really serious about making the tough choices necessary to democratize Iraq, particularly with an election coming up in less than a year. For Bush is above all a political animal, who will do what it takes to win reelection. Even if he is defeated in 2004, Democrats will inherit a much more dangerous world and a financially strapped government as a result of his bad policies. The Bush Administration has not only misplayed its hand, it has created a mess that will be very difficult to clean up no matter who is in office. Under the logic of Friedman's argument he should be wishing that election were held today rather than a year from now. For if Friedman is right, and there is no time to lose, he well understands that the wrong people are at the helm.

Back before the war, in September 2002, I argued that Bush was the most dangerous person on Earth. Not because he was evil, or bad hearted, or opposed to freedom, but because he was a gambler, cocksure, arrogant, and altogether convinced of his own rectitude. He and his Administration are the last people we should be trusting to handle this most delicate moment in American foreign policy. The war was unwise because it made us less safe, and weakened our hand in the war on terror. Now we must make the best of a bad situation. The first step is voting the person who made this terrible mess out of office as soon as possible.


Saturday, November 22, 2003

JB

The Conservative Case for Same Sex Marriage

I was pretty much in agreement with David Brooks' column arguing for same sex marriage, until I got to this last little bit of prose:

The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.

When liberals argue for gay marriage, they make it sound like a really good employee benefits plan. Or they frame it as a civil rights issue, like extending the right to vote.

Marriage is not voting. It's going to be up to conservatives to make the important, moral case for marriage, including gay marriage. Not making it means drifting further into the culture of contingency, which, when it comes to intimate and sacred relations, is an abomination.


Liberals have not been pushing gay rights as "a really good employee benefits plan." They have been pushing it as a civil rights issue, but that is because a central feature of equal citizenship is and should be the ability to solemnize one's most precious, intimate and long lasting commitment to another person through marriage. Slaves could be prohibited from marrying in the antebellum South. With freedom came basic rights of citizenship, which included the right to marry.

Brooks' conservative case for marriage is based on the notion that everyone (and if you read the whole column, you will see that he especially means everyone who has sex) should be married, and that it is "scandalous" that people who "claim to love each other" should not be married. On this Brooks and I disagree: I reject his insinuation that if you love another person you must also want to marry them or else you don't really love them. Marriage is not for everyone. The notion that everyone must conform in lock step to the same set of social practices is the darker side of Brook's so-called conservative case for same-sex marriage, and it conflicts with the view of many conservatives (and liberals too, I might add) that individual choice about the most important matters in one's life should be respected.

Yet the question is more complicated than simply one of liberty versus conformity. Like Brooks, I believe that stable families are a good thing, particularly (but not exclusively) because of children. For that reason, I also agree with him that it is important to encourage marriage and fidelity. But marriage is hardly a perfect institution; it still contains within it the remnants of older ways of thinking about families that can be stifiling and oppressive, particularly to women. Given its imperfections, we should not assume that if a person does not want to get married that signals that there is something wrong with them or that they are incapable of real love. That conclusion is insulting; moreover, it assumes that there is nothing wrong with the institution of marriage that could cause a reasonable person to avoid it.


Friday, November 21, 2003

JB

Is the Federal Marriage Amendment A Bait And Switch Game?

I've been thinking about the proposed Federal Marriage Amendment (FMA), whose text is available at the website of the Alliance for Marriage. The proposed text of the amendment reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The Alliance for Marriage argues on their website that this language is designed to keep courts from imposing same sex marriage on the states, and to keep legislatures from passing laws authorizing same-sex marriage, but it does not prohibit state legislatures from passing laws creating civil unions for same-sex couples.

I'm not so sure. The text is cleverly and confusingly written: The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them. Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits simlar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence.

If the FMA had been designed to do what its proponents claim it will do, it should have been drafted as follows:

Section 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status be conferred upon unmarried couples or groups.

Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples or groups.


Thus, Congress and state legislatures may provide all of the incidents of marital status except marital status itself. As you can see, such an amendment is not particularly difficult to draft. The fact that there is a gap between what the text says and what the Alliance for Marriage says the text will do suggests to me that they are not being entirely forthcoming about the reasons for the Amendment.





Tuesday, November 18, 2003

JB

Massachusetts Supreme Judicial Court Holds Ban on Same Sex Marriage Unconstitutional


Massachusetts's highest court has struck down the state's ban on same sex marriage, following the lead of Vermont. The decision was 4-3. The Supreme Judicial Court gave the Massachusetts legislature 180 days to come up with a legislative solution to the problem. This is roughly similar to what the Vermont Supreme Court did. However, Massachusetts politicians have already been considering an amendment to the state constitution that would prohibit same sex marriage. One of the key factors in the Vermont case was that the Vermont Constitution is very difficult to amend. If the Massachusetts Constitution is like most state constitutions, is entirely possible that the Supreme Judicial Court's decision will be overruled. Both Alaska and Hawaii amended their state constitutions to prevent same sex marriage when it looked as if courts would strike down legislative bans.

The Massachusetts case will probably cause renewed calls for a protection of marriage amendment at the federal level, which will probably not succeed, because it is so difficult to amend the U.S. Constitution. More importantly, it threatens to place same sex marriage in the middle of the 2004 elections. Republican politicians will probably view this as a new wedge issue to beat up Democrats with, especially in the South. Nevertheless, it's still unclear what the fallout will be. It makes a great deal of difference that this decision has come after the Supreme Court's opinion in Lawrence v. Texas rather than before it, even though the two issues are analytically distinct.



UPDATE: David Krinsky writes:

the MA constitution is quite difficult to amend; doing so
requires a vote of two consecutive sessions of the legislature
followed by a statewide referendum. See Mass. Const. art. XLVIII.

Even if such were likely to pass--and in MA, I have my doubts, since
anti-gay-marriage amendments have been successfully defeated
before--there's absolutely no way that it can happen until today's
ruling has been in effect for over a year, even with the 180-day stay.




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