Wednesday, July 19, 2006

# Posted 11:38 AM by Ariel David Adesnik  

BEINART ON GAYS AND ABORTION: In this week's TNR, Peter Beinart [by subscription] makes a solid liberal point that borrows just enough of its logic from conservatives to make other liberals slightly uncomfortable.

In his column, Beinart codifies the emerging centrist position on gay rights in general and gay marriage more specifically: Let the people decide. Wait for democratically-elected state legislatures to authorize gay marriage rather than pushing the courts, whether state or federal, to force it through.

If you push it through, you will generate a backlash that will prevent the issue from ever being settled. But since public opinion is trending strongly in the direction of gay rights, a liberal victory is assured if liberals themselves demonstrate a measure of patience.

I support gay rights and that sounds good to me. But what about abortion? While reading Beinart's column, I constantly expected him to shift the discussion to abortion. After all, the challenge liberals face in that arena is remarkably similar: Should they rely on the courts or trust the voters?

There are two big differences, of course. Number one, the law is already on the liberal side. Number two, public opinion runs against the liberal position in large swathes of the country. When it comes to abortion, would Beinart stick to his guns and insist that liberals should trust the American voter in order to prevent a backlash against the courts? Or would he sacrifice intellectual consistency in order to align himself with the dominant liberal position with regard to abortion?

In certain respects, this is a classic democratic (with a small 'd' dilemma). In a liberal democracy there is a constant tension between majority rule and minority rights. With regard to gays and abortion, liberals come down mainly on the side of rights.

Conservatives seem divided. They tend to follow the same logic that Beinart does, i.e. support majority rule, since the majority favors the conservative position. But if the majority favored abortion rights and gay marriage, how many conservatives would suddenly find themselves favoring the liberal strategy of using the courts to trump public opinion?

If you believe abortion is murder, how can you let the majority decide the issue? If you believe there should be a constitutional amendment preventing gay marriage, might you not push for the courts to strike down legislation allowing it?

So then, would it best serve the national interest to let the voters have the final say on the issues instead of the courts? In an ideal world, liberals and conservatives could reach some sort of consensus on gays and abortion. In light of how divisive these issues are and how little we can afford to be divided in the midst of the global war on terror, I am willing to compromise in the name of consensus. I hope that others are as well.
(15) opinions -- Add your opinion

And then there are people like me, whose opinions on abortion and gay rights aren't particularly strong, but I am appalled at the way the courts are subverting a democratic public's prerogative to choose the future course of our society.

So, to put it another way: as long as the two sides channel their debate into the state legislatures, I don't have a strong opinion on how things should turn out. But I will vote for the party that seems to be in favor of democracy at any given moment.
I think former Canadian Prime Minister got this exactly right, with regards to the legitimacy of legislatures deciding on gay marriage:

"The second argument ventured by opponents of the bill is that government ought to hold a national referendum on this issue. I reject this not out of a disregard for the view of the people, but because it offends the very purpose of the Charter.

The Charter was enshrined to ensure that the rights of minorities are not subjected, are never subjected, to the will of the majority. The rights of Canadians who belong to a minority group must always be protected by virtue of their status as citizens, regardless of their numbers. These rights must never be left vulnerable to the impulses of the majority."
*former Canadian Prime Minister Paul Martin, that should read.
Conservatives generally follow the rule of law, even when they disagree. Even conservatives who hold elected office. There are exceptions such as Alabama Chief Justice Roy Moore, but they are usually scorned by the media as nascent theocrats, etc.

Liberals, on the other hand, often feel free to disregard the law in the service of their beliefs. It flatters their self-perception of being rebels and speaking truth to power. This perhaps holds doubly true for liberal elected officials such as San Francisco Mayor Gavin Newcomb, who was feted by the media a pioneer and freedom fighter.
I think former Canadian Prime Minister got this exactly right, with regards to the legitimacy of legislatures deciding on gay marriage

Except that that, um, had to do with him supporting a legislature (as opposed to a referendum) deciding on gay marriage, not opposing it. So I don't really understand your point. Although that's also because the Supreme Court of Canada had failed to find that the Charter enshrined gay marriage. Perhaps he favored judicial supremacy but believed that the judges (appointed largely by his party) had come to the wrong decision?

In any case, in countries where this sort of things is decided democratically, compromises seem to be more likely. I believe that they would happen here.
When people don't agree and the difference is regional, the answer is federalism. Let some states have it one way and some another.

This scheme breaks down for rights that are truly fundamental, like voting rights for black people in the southern states. That one had to be resolved nationally. But I see nothing in either the abortion debate or the gay marriage debate that requires a single, nation-wide decision.
John Thacker,

He wasn't supporting a legislature. He was saying that neither Parliament nor a referendum has the right to restrict the rights of a minority group. It would be just as incorrect to hold a free vote in Parliament on the issue as to poll the public.

Not allowing gay marriage is discrimination in exactly the same way as not allowing black people to vote. I am confident that in fifty years time, it will be seen similarly.
Note: I am not claiming that the magnitude of the harm is equivalent in the two cases. Rather, I am claiming that the basis for exclusion is equally arbitrary.
He wasn't supporting a legislature. He was saying that neither Parliament nor a referendum has the right to restrict the rights of a minority group. It would be just as incorrect to hold a free vote in Parliament on the issue as to poll the public.

I must disagree with that interpretation. He was supporting the legislature passing a bill to legalize gay marriage because the Supreme Court of Canada had refused to find it in the Charter. He may have appealed to natural rights or the rights inherent in the Charter, but he was still having the legislature decide it because the Court didn't give him the answer he wanted.

If the legislature of Louisiana passed a law forbidding abortion "because no state has the power to allow one to take another's life, as we are all given the right to life, liberty, and the pursuit of happiness," and said that no legislature or referendum had the right to take away the right to life of a fetus and give it to the parent, would you call that a non-legislative response? Particularly when all courts had failed to find such a right? I should think not.
Especially since the case in question was not about people being arrested for claiming that they were married or having a private marriage ceremony, but about the state granting certain important benefits that it gives to married couples.

A legislature may very well be (and should be) motivated by an understanding of the limits of the Consitution and the rights protected therein when passing a law, but one can still distinguish between legislative action and judicial review.
"Number one, the law is already on the liberal side."

No, the courts are. Not at all the same thing, since in joining your side they struck down "the law".
(This is the same anonymous as before, by the way...)

Part of the problem here is that we don't really have consensus on constitutional law (in any country), and we have thrown away any concept of natural law as a living entity. Abortion law in the US is based on what I consider a very odd vision of what the US constitution says. It relies implicitly on an assessment of the biological realities of the human condition, but it doesn't REALLY address these realities systematically. The result is something that should be calling itself natural law, but doesn't do so and therefore ends up looking like shaky constitutional reasoning.

I think that you can get to a theory that accepts gay rights and tolerates early abortion just by looking at contemporary understandings of how human beings work. We know that some people are gay by nature, and that it is as cruel to force them to act straight as it is to force straight people to act gay. And we know that nature aborts a whole lot of embryos early in pregnancy, for reasons we can't really understand. It's not exactly a good thing when a pregnancy ends early, but it is part of the human experience and not really the same thing as the death of someone who has already been born.

But that doesn't translate to any particular stand on gay MARRIAGE, or on Roe v. Wade. I happen to favor gay civil unions for the legal/financial side of life and whatever rituals gay people choose to invent for the social side -- heterosexual marriage may not be the only model. And I would like to see more restrictions on late-term abortions, along with a recognition that earlier interventions are always to be preferred over later ones for dealing with problem pregnancies. (Avoiding exploitative sex is better than relying on regular contraception, which is better than relying on emergency contraception, which is better than relying on early abortion, which is better than relying on late abortion.)

But I'm convinced that you can't get to these centrist solutions, at least not now, with a rights-based approach centered on the courts. Better to toss things to the legislatures and let all social interests (not just the litigants in specific cases) present their best arguments. We're more likely to end up with stable solutions -- social changes that stick -- by respecting the democratic process.

(My opinion would change if someone wanted to deny women or gay people the vote, but that isn't happening.)
how many conservatives would suddenly find themselves favoring the liberal strategy of using the courts to trump public opinion?

Very few, I'd guess. Because they would almost certainly fail -- as mentioned above, the people who make up the judiciary largely trend liberal. This is not necessarily the case at the Supreme Court level, and Bush II (following Reagan and his father) has been trying to shift the balance in favour of conservatism, broadly defined. But the legal establishment as a whole is nevetheless dominated by liberal voices, and likely to remain so for the immediate future.

Conservatives mostly don't have the option of implementing policy through the courts, so they don't face that tradeoff.

On the other hand, the analogous tactic conservatives have pursued with success is to pursue amendments of state constitutions (and, somewhat less seriously, the national Constitution). At the moment, momentum in the democratic process is still, weakly, with liberal causes, but the conservative side preserves a majority on a number of issues (e.g. gay marriage), and if they can implement state constitutional bans before the liberal view edges into majority status, they can preserve their favoured policy for much longer -- the liberal view will have to reach supermajority status before they can overcome the amendment.

The obvious gamble, with such a policy, is that liberalism will never reach supermajority status (and hence be able to pull the same trick), and that the "pendulum" of public opinion will continue its shift towards conservatism, causing the momentum behind liberal causes to peter out and then invert. As a result, conservative views just have to weather a few years/decades where the liberal view can muster 50-55%, say, and then the pendulum will swing back and conservatives will have a majority again.

This seems like a rational enough policy to me, given the circumstances, although abusing the amendment process for this purpose is about as objectionable as abusing the court system for the same end.
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