In 2001, I developed and taught a course on Gay and Lesbian American History at PCC. I taught it for three consecutive semesters, and then took some time away from it. I will teach it again in the fall of 2005.
In the aftermath of the success of some eleven anti-gay marriage initiatives across the country in Tuesday’s election, it’s easy for those of us who advocate marriage equality and full inclusion to get depressed. This depression is exacerbated by the real possibility that conservative turnout was bolstered by anti-Same Sex Marriage sentiment, and that that boost in traditionalist votes played a decisive role in the president’s re-election. It’s not a happy time.
But history gives us a more comforting perspective.
Gay and Lesbian political history is not old. It’s difficult to establish an exact beginning point; some place it with the "Society for Human Friendship" of the 1920s, or the Mattachine Society of the 1950s; the popular imagination dates it to the Stonewall Uprising of June 1969.
Few folks remember that the very first time gay and lesbian issues were on the ballot, those of us fighting for GLBTQ equality were soundly defeated. The story is well told in Dudley Clendinen and Adam Nagourney’s magisterial Out for Good: The Struggle to Build a Gay Rights Movement in America. In June 1977, reacting to a modest human rights ordinance adopted in Dade County, Florida, former beauty queen and Christian activist Anita Bryant mounted a campaign called, slyly enough, Save Our Children. Bryant and her SOC called for the repeal of the ordinance, which was the first in the country to grant protection in housing, public accomodations, and employment to people based on their "affectional or sexual preference."
Today, we think of Miami-Dade County as a fairly liberal part of Florida. (I don’t know much about Florida. My fiancee and I spent a glorious weekend on South Beach and Key Biscayne last year — those were exciting and lovely. What little I saw of the rest of the city and state was less appealing, frankly…) In any event, Miami-Dade was far more conservative 27 years ago. When Bryant’s referendum to repeal the human rights ordinance went before the voters, the anti-gay forces won 69%-31%, carrying every section of Miami except for Coconut Grove. Even Jewish liberals in the beach areas voted against the ordinance.
The gay and lesbian community had no history at the ballot box. This was setting precedent — and what a disheartening precedent it was! And yet, it marked the coming-of-age for what is now the senior generation of GLBTQ activists. And it also set the stage for some smashing successes. Less than 18 months later, gay rights supporters would have their first major win at the ballot box.
In November 1978, a conservative Californian state senator named John Briggs got an initiative on the ballot called Proposition 6. It was designed to bar openly gay and lesbian teachers from public school classrooms. Briggs, taking a page from the Bryant playbook, was using children as the wedge issue. The conservatives were confident. But a newly galvanized coalition of gay activists, led by San Francisco’s Harvey Milk, managed to turn the tide. They even (as I wrote in June) managed to enlist Ronald Reagan’s opposition to Prop. 6. And on November 7, 1978, California voters resoundingly rejected the Briggs initiative, 58-42. 17 months after their first defeat by the voters on one side of the country, gays and lesbians had their first victory on the other. And three weeks later, following Milk’s assassination, the political movement had its first martyr.
As one of my local heroes, California state senator and lesbian activist Sheila James Kuehl points out, "no group has ever fought for civil rights in this country without eventually attaining them." The struggle is hard. There will be setbacks. But all is by no means lost, and we must have some intelligent and thoughtful perspective on just how far we’ve come. As Amp at Alas, A Blog points out,
Measure this fight in generations, not in elections. In 1984, marital rape was still legal in most states and not even Walter Mondale would have dared come out in favor of civil unions…. (Today)Massachusetts has same-sex marriage, and with the failure of the FMA that’s not going away.
Since I last taught my course on gay and lesbian history (in the fall of ’02), the movement has had a series of dramatic successes. The Supreme Court decision in Lawrence v. Texas (undoing the monstrosity of Bowers v. Hardwick); the elevation of Gene Robinson as a bishop in the Episcopal Church, and of course, the "Massachusetts miracle" which shows no signs of being undone anytime soon. The fact that even President Bush seems to have no problem with civil unions or domestic partnerships is a sign of just how far we have moved the debate in a very short period of time.
I am a heterosexual man. (I don’t like the term "straight"; I’m enough of an evangelical to believe, as my friend Richard Mouw points out, that none of us are "straight." We all fall short of a mark, we are all bent and twisted to one degree or another.) But from my childhood, I have believed that I was called to play a small part in the struggle for full inclusion for my gay, lesbian, bisexual, and transgendered brothers and sisters. (I apologize for the hubris, let me reemphasize the "small" in the previous sentence!) I do this work through teaching and outreach. As a hetero Christian man, I can, frankly "go places" where my queer friends cannot. Indeed, if I were a gay man, I might not have dared teach the course that I teach, even with tenure. My heterosexual privilege gives me a strong defense against homophobic attacks.
Yes, I’m still allowed to marry. Next year, I will get married for the fourth time to a woman I love with all my heart. God and the state give a man like me second, third, and fourth chances to "get it right." I’m grateful for that, and at the same time, palpably furious that our society will not give even one such chance to my queer brothers and sisters. It makes me shiver with rage and frustration, frankly. But I can swallow my harsh words, speak gently to those with whom I disagree, and try and offer the perspective that my profession teaches me to offer.
Though short, GLBTQ history in this country has had its shares of highs and lows. In the early 1980s, the community was hit simultaneously with the ascendancy of the Reagan right and the dawn of the AIDS crisis. The movement survived then, and it will survive the disappointments of November 2004.
In another 27 years, I will be 64 and ready for retirement. I imagine I may well still be teaching GLBTQ history in one form or another. And I am sure of this: if the next 27 years see half the progress that we have seen in the 27 since Anita Bryant’s victory in Miami, then we will have marriage equality in every state in the union by the time I retire. My faith in history, my faith in people, my faith in progress, and my faith in God all assure me that that is more or less a certainty. And that is a great comfort this week.
Thank you for a useful history lesson. We have made progress and I suspect that you are right that we will continue to make progress. However, as we have learned from our nation’s struggle with racism against African Americans, we can make progress and, at the same time, see the right continue to use hatred as a tool to get votes.
I hope this is not too personal, but four is a lot of times to get married. Is that something that you’ve ever written about?
Thanks for that.
I’m so glad to see that you have the faith. I kind of wrote about the opposite side today, that people who voted against gay marriage had no faith in their beliefs. BTW, I just wanted to let you know it’s been a real pleasure discovering your site. I just wished I was exposed to open minded Christians like you when I was involved in the church.
Thanks–this was a real mood-lifter in a week in which my mood definitely needs lifting.
I know that it is hard to see the voter turnout from a positive light in the darkness of defeat. But I’m going to stand by my belief that it is a good thing for everyone. Americans are ready for the discussion; they are poised for debate. Yes, a lot of people are hard headed, aren’t we all when we think that our values are being challenged…we should be because that is exactly what is happening! It has to happen for change to continue. By showing up on Election Day, Americans have shown that they are ready to be engaged. You can’t start teaching until a student shows up, otherwise your just talking to yourself. As a Prof myself, I find it discouraging when students don’t show up to class. Show up late, show up tired, show up with the wrong answers, but show up and have something to say…give me something to work with. America showed up on Nov 2. I for one, find that a place to start.
Amen, blackkoffeeblues. I think more folks are interested in dialogue now, rather than the same-old same-old preaching to the choir. And I think more folks are ready to get down to business. Hope so, anyway.
I totally agree with La Lubu and Blackcoffeeblues (love the name btw, from the song right?), i’m glad that there is now room for dialogue. I don’t mean to be a sad sack and cast a gloomy glow on the positive turn of our thoughts and conversations, but didn’t California just pass a law (was it last year?) prohibiting gay marriage? I distinctly remember it being on the ballot, I just can’t remember which election. Anyway, my point is, is that we’re all miffed about those 11 states, but we are one of those states and the sad thing is we’ve been one for over a year now. Even sadder is that I had forgotten all about it, until a gay friend reminded me “uh, we voted against that over a year ago”. and I was like “oh yeah, you’re right, oopsie”.
Thanks for the history lesson. I do think that gays have made much progress in recent years. Your historical review helps reinforce that. We cannot expect dramatic change to come without a struggle.
Some may be surprised that exit polls showed that 20% of gays/lesbians who voted this year voted for Bush. (I did not vote, but cheered his victory for a variety of reasons.)
I just want to caution everyone, that Bush’s victory was not solely because of the “anti’gay” vote. To think that that issue was the main reason for his victory lends itself to tunnel vision. We might start with 9/11 as one of the many issues that framed the final outcome of this election.
I know where I stand on gay rights. I cheered when the Supreme Court overturned Texas (my current residence) law on making gay activity illegal. I cheered when the Massachusetts Supreme Court declared that gays should be allowed to marry.
But I am not a one issue person. Just like many of you conservative Christians didn’t approve of Bush’s conservative Christian values, I didn’t approve of Kerry’s liberal views on economics and national security. Apperently there are many people who had to wrestle this year with their vote.
Contrary to what many seem to be saying on the blogs these days–that is not entirely bad.
Kelly, that is correct. California voters easily passed Proposition 22 in the March, 2000 primary. Between that, Oregon and Hawaii, it’s not a red-state/blue-state thing. For better or for worse, Americans don’t want gay marriage, and they really don’t want it imposed by a court.
On the other hand, California does have expanded, civil union-like domestic partnerships, without significant objection. It looks as if, for better or worse, having one state after another institute civil unions (probably with arrangements gradually being made to recognize each other’s civil unions) is the way we are heading.
By the way, I remember the Briggs Initiative – that was right after I got to California for college, and was the very first California election in which I was involved (barely too young to vote, but not too young to campaign).
Yeah, well Americans didn’t want intergrated schools imposed by a court either. I don’t see the point of that argument.
They certainly didn’t want the abolition of anti-miscegenation laws imposed by a court, either.
Amanda, if you don’t see the point now, when will you? After all 50 states and D.C. pass mini-DOMA laws of their own? Bypassing public debate and courts to make crap up is not only undemocratic and immoral, it’s also extremely ineffective.
Besides, let’s not pretend that courts have traditionally been champions of civil rights. One Supreme Court gave us Dred Scott, forcing the other two branches of the government to fight an extremely bloody civil war. Congress responded by enacting not one but three constitutional amendments aimed at integrating the newly formed slaves into society. The courts’ contribution? To gut the 14th Amendment by nullifying the P&I clause and inventing the now-infamous “separate but equal” ruse. It was nice of them to finally start enforcing the 14th Amendment almost a century later, but even that doesn’t make the institution a champion of civil rights. It makes unelected judges guilty of maintaining school segregation and anti-miscegenation laws for almost a century after the democratically elected government had acted to end them. Even most of the post-1960s cases where courts have generally advanced the civil rights cause, they have done so by implementing relatively recent legislation, e.g., the Civil Rights Act. They didn’t make their rules out of whole cloth, as the Masschusetts SJC did.
Baehr v. Lewin was not made out of whole cloth, yet “state’s-rights” conservatives called it judicial activism. Funny how the same people who scream about the Feds suddenly get all Congress-huggy when the “right” in question concerns sex or drugs.
Strict constructionists are every bit as “activist” as the “judicial activists.” The difference is that the SC’s are conservative while the JA’s are liberal. That, plus the Right has been extremely effective in the use of language to advance its agenda. Orwellian, even.
Mythago, Baehr v. Lewin is a prime example of judicial activism if there ever was. It takes a lot of chutzpah to pretend that a ban on gay marriage is a form of sex-based discrimination. Which sex is it even supposed to discriminate against? Men, or women?
In any event, it didn’t take long for liberal Hawaii voters to undo that screwball decision, did it? That’s hardly the response one would expect for a sensible court ruling that properly applied existing law and offended only the far right, as you suggest.
Zuzu, your claim that strict constructionists are as “activist” as those who make crap up is almost too dumb to respond to, but I’ll try anyway since I’m such a nice guy. The difference between strict constructionism and judicial activism is actually quite simple. One group endeavors to apply the Constitution or other applicable law as written, while the other twists the law any which way it can to obtain a desired political result. Confronted with the fact that he and the lawmakers will not always see eye to eye, a good strict constructionist will invariably have to make some rulings he considers unjust. A judicial activist, by contrast, never has that problem; if you and the law agree, twist the law to make it agree with you. If the legislature responds with a “no, you dummy” amendment, no problem; just torture a constitutional provision instead.
This distinction has nothing to do with being politically liberal vs. conservative, except for the historical accident that in recent decades, judicially activist shenanigans have been more popular among politically liberal judges than among politically conservative ones. It hasn’t always been that way, it just happens to be that way now. For example, my copy of the Constitution doesn’t say a word about abortion, and I’ll bet yours doesn’t, either. Notwithstanding this, six of today’s nine Supreme Court Justices agree that some emanations and penumbras guarantee an individual right to abortion. On the flip side, zero Justices believe that the Constitution guarantees an individual right not to be aborted. Ditto for gay marriage, where three state courts have made up a pseudo-constitutional “right” to gay marriage, while none have, or likely ever will, invent a constitutional prohibition of the same (although voters are quickly moving to do that for them).
Zuzu, your claim that strict constructionists are as “activist” as those who make crap up is almost too dumb to respond to, but I’ll try anyway since I’m such a nice guy.
“Nice.” That’s what the kids are calling it these days? Out of respect for Hugo’s space, I will refrain from suggesting where you might think of locating your “I’m a nice guy.”
The difference between strict constructionism and judicial activism is actually quite simple. One group endeavors to apply the Constitution or other applicable law as written, while the other twists the law any which way it can to obtain a desired political result.
The Constitution as written is open for interpretation. It was designed that way. It’s a framework. What those who would purport to “strictly construe” it in order to restrict liberties seem to forget — or wilfully ignore — is that those who drafted it were steeped in Enlightenment principles. They believed that man had certain inalienable rights not to be proscribed by government or by the tyrrany of the majority. The moves by “judicial activists” to expand the freedoms of Americans would seem to be more in line with those Enlightenment principles than would the moves of strict constructionists to limit those freedoms.
Do I think that some of the Court’s interpretations have been a stretch? Absolutely. But guess what? In common law traditions such as ours, judges make law. They strike down or uphold statutes and prescribe the limits of certain practices. They act as check and balance to the other branches of government; those other branches are free to overrule decisions by statute or enact other laws to achieve the same purposes but without the objectionable language or content. And judges make law whether you call them activist or strict constructionist. They would frankly serve no purpose if all they did was ratify the acts of the other two branches of government and make decisions based on what might possibly have been in the Framers’ minds back in the 18th Century.
Zuzu – You make some good points, but one drafter of those principles had some interesting observations looking back on the process.
Thomas Jefferson wrote:
The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them
and later added,
The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.”
Checks and balances may be two sides of the same coin, but often depends on whether you win or lose the toss.
I reread your post 3 times and I still don’t see your explanation for why the majority has a right to vote on the rights of the minority. Again, if this is so, then we can take a vote to ban interracial marriage again, no? And it’s likely that such a ban would pass, whether we like to admit it or not. People’s willingness to take away the rights of their neighbors knows no bounds sometimes.
Judicial activism may expand the liberty of judges, but it doesn’t do a damned thing for anyone else’s. A strict constructionist won’t invent new rights, but can be trusted to enforce the ones already written into our Constitution, or any other applicable law. A judicial activist cannot be so trusted; all he’ll protect is whatever rights he personally thinks you ought to have. How else do we end up with a near-absolute “right” to kill unborn fetuses, yet no enforceable right to own a gun for self-defense? This has nothing to do with the Enlightenment or the common law, and everything to do with the divine right of kings.
How else do we end up with a near-absolute “right” to kill unborn fetuses, yet no enforceable right to own a gun for self-defense?
I’m not sure where you live, but in my America, there is no absolute right to terminate pregnancies, and as for gun rights, when you can buy handguns at Kmart and gun shows and maybe only have to undergo a cursory background check, I don’t see how that translates to “no enforceable right to own a gun for self-defense.”
Let’s just dispense with the notion that Roe v. Wade established unlimited right to abortion. What it did was create a balancing test weighing the state’s interest against the woman’s right to control her own body. You may also recall that as the pregnancy progresses, the balance shifts.
And where, anywhere in this country, are guns for personal protection completely banned? Unless you require an assault weapon to protect yourself (and even then, that ban’s been overturned). No right, even those explicitly granted by the Constitution, is absolute. Free speech is subject to reasonable time, place and manner restrictions so that it does not impinge on the rights of others or a compelling state interest. Why should gun ownership be any different? And what’s so onerous about getting a license or registering your weapon, or being subjected to a background check to make sure that you’re not likely to use the gun to commit crimes? It doesn’t change the basic nature of the right — you still have your gun, but given that it’s dangerous, the state has an interest in making sure you aren’t going to use it for some purpose other than self-defense or hunting, and, if you do, that it can be traced to you.
Roe v. Wade didn’t establish a right to “destroy fetuses”, a handy little phrase that makes it sound like they are growing in a cabbage patch and someone went in there with a sledgehammer. It established a basic right to private consultation with your doctor.
By the definition laid out by our Founding Fathers, rights are not invented. They are god-given or natural or whatever. Judicial “activists”, once known as judges, are simply ruling that people should be allowed to enjoy the rights they already have.
Zuzu, I didn’t say Roe v. Wade established an absolute right to abortion, I said it established a near-absolute right. Expressio unius exclusio alterius est. By itself, Roe pretty well guarantees abortion on demand for the first trimester, but subsequent cases have expanded it further to strike down Nebraska’s partial-birth abortion ban.
As to guns, “assault weapon” is a misnomer. A more accurate term would be “ugly gun,” because an ugly appearance really is the only thing that separates most “assault” weapons from other, more commonly own firearms. The AW ban is to the Second Amendment as a ban on criticizing the government on the second Tuesday of every month would be to the First – on one level, a relatively minor infringement; on another, an ominous sign that Congress can regulate on a whim. And the ban wasn’t overturned. The federal one was allowed to expire, but the seven state bans, including California’s, remain despite having hand no measurable impact on crime whatsoever.
I don’t know what K-Mart you shop at, but I’ve never seen a handgun for sale at any K-Mart. Wal-Mart used to carry them, but hasn’t for years. I do see them at gun shows, of course, but I’m not sure what the significance of that is, seeing as guns sold at gun shows are regulated exactly the same way as guns sold anywhere else. But those aren’t the issues that prompted my earlier post, anyway. I can live with background checks, registration, nondiscretionary “shall-issue” licenses to carry concealed (CA is “may issue,” which generally translates into “won’t issue”), waiting periods, and the like. I don’t like those restrictions, mind you, but I can live with them. What I can’t accept is the ACLU’s position, shared by many liberal judges, that the ACLU protects no individual right at all, only a meaningless “collective” right that is enforceable by no one against no one. Think I’m making that up? Read the ACLU’s own take on the matter. Then read Silveira v. Lockyer, authored by that icon of the liberal left, Stephen Reinhardt.
As to where guns for personal protection are banned, try New York, Chicago, the District of Columbia and suburbs for starters. San Francisco tried to join the club in the early 1980s, but their ordinance was struck down as an obvious violation of California’s firearm preemption law; it wasn’t a Second Amendment case.
Is it just me, or does the argument about Constitutional law and “strict constructionism” remind others about the arguments about Biblical literalism? Right down to the dickering about or ignoring of slavery citations?
Assault weapons are those with fully or semi-automatic mechanisms and high-capacity magazines. They are NOT the .22 target-shooting rifle I used as a kid, nor are they standard service revolvers. Come on Xrlq, what I want to hear from you is not the namby pamby defense fo assault weapons as ugly guns that should be ownable by members of the general public. Let’s hear the 2nd amendment case for private nuclear weapons, or for the slightly less affluent, private fertilizer bombs, or if that makes you blanche, how about privately owned rocket-propelled grenades.
Oh, and I do think that Hugo is right – it takes about one hundred years for civil rights to be extended to a new group.
By itself, Roe pretty well guarantees abortion on demand for the first trimester, but subsequent cases have expanded it further to strike down Nebraska’s partial-birth abortion ban.
The problem with the “partial-birth abortion” bans that have been struck down is the failure to make allowances for the life or health of the mother. And while it’s true that Roe established a near-absolute right to abortion on demand in the first trimester, subsequent cases have upheld restrictions on this such as parental notification, waiting periods and counseling requirements. So the reach of Roe has been chipped away at over the years; in fact, it no longer stands as the controlling authority, having been eclipsed by Casey. In any event, even though abortion remains legal, it’s simply de facto unavailable in large parts of the country, whether because there are no providers or because of having to run the gauntlet of clinic protesters.
How, exactly, is a position taken by the ACLU relevant here? The ACLU is not the judiciary. They can advocate any position at all until the cows come home, but they’re not the ones making the decisions.
Thanks for the good post on history. I’ve added a link from the Gay Spirituality blog. And blessings on your upcoming marriage.
NancyP, here’s the difference between Biblical literalism and constitutional literalism: the Constitution is the law of the land; the Bible is not. Frankly, I have little time for religious liberals who delude themselves into thinking they believe the Bible, when in fact they just believe whatever they want to believe, and fall back on handy Bible verses when it suits them. Better they should simply admit that they don’t believe the Bible, and move on with their lives. But I’m not obligated to live my life according to anybody’s interpretation of the Bible, so frankly, I don’t care. I do care when people do the same thing to the U.S. Constitution, or any other laws I’m required to follow whether I want to or not.
True assault rifles, i.e., the fully automatic kind, have been regulated to the hilt since the gangster era and banned outright since the first Bush Administration. They are not the subject of the 1994 federal “assault” weapons ban, nor of California’s 1989 and 1999 bans, nor any of the other six to which I referred. Most affected weapons are semiautomatic, but not all – as of 1/1/04, even bolt action .50 BMG rifles will be considered “assault” weapons in California. And most semiautomatic weapons aren’t “assault” weapons, either. Some take high-capacity magazines, but others don’t. The .50 BMG caliber is extremely powerful, but most other affected calibers are not; the .223 is a common caliber among “assault” weapons, for instance. Some non-assault weapons take high-capacity mags, too, only to magically morph into “assault” weapons as soon as someone attaches a flash suppressor, a folding stock and/or a bayonet lug (any two). The only fool-proof method of determining what is or isn’t an “assault” weapon is its presence or absence from the list of weapons defined as such.
I’ll take up the Second Amendment case for private nukes, grenades and fertilizer bombs just as soon as you champion the First Amendment case for libel, death threats, intentional leaking of classified information, a Mafia don’S right to order “hits” on his rivals (as long as he only speaks and does not actually participate in the murder), and everyone’s favorite example, your First Amendment “right” to falsely yell fire in a crowded theater. Courts have ways of dealing with those fringe issues without undermining the basic protections of the First Amendment; there’s no reason they can’t do the same for the Second. Zuzu all but conceded as much by advocating gun laws be upheld or struck down under the strict scrutiny test. If only!
Zazu: the ACLU is relevant because the judicial activism they call for is shared by many judges. They are lying about U.S. v. Miller, but they wouldn’t be lying if they said that a number of federal circuit courts have ruled for their “collective rights” interpretation since then. You did read the Silveira decision, didn’t you? I assume you can see why that is relevant.
Zazu = Zuzu
XRLQ, I’m staying out of this discussion, but surely you meant to say you had little time for religious folks of all political persuasions who use the bible when it suits them, but regard it as irrelevant most of the time. The left tends to ignore the call to purity, the right to economic justice and jubilee, but we all fall short — not just the liberals, my friend.
Zuzu, I didn’t say Roe v. Wade established an absolute right to abortion, I said it established a near-absolute right.
But this isn’t true. It limits the right to privacy (in the form of control of one’s body) by the state’s interest in fetal life.
I’d note that you don’t hear too many strict constructionists arguing against libel laws or anti-obscenity laws, both of which are forbidden at the Congressional level by the First Amendment. (And at the State level by the Fourteenth, if you go that far.)
Hugo: I don’t use the words “liberal” and “conservative” the same way when discussing politics vs. religion. The two often overlap but they needn’t; one can be a true blue fundamentalist Christian while voting a straight Democrat, Green or even socialist ticket. Conversely, one can subscribe to squishy, “all the Bible that fits” theology, while holding political views that are solidly right wing. There may well be a strong correlation between political and religious liberalism/conservatism, but I don’t think one follows from the other, and I certainly don’t think it makes sense to talk in terms of left vs. right when discussing a “liberal” vs. a “conservative” reading of the Bible.
Religious fundamentalists – the ones I call “conservatives” when discussing religion – tend to try really, really hard, almost to a fault, to follow the words of the Bible, as written. They are loath to second-guess it, knowing full well that they are errant while the Bible, presuambly, is not. As a result, they often end up holding views out of step with society. I don’t necessarily agree with those views – some of them, I find particularly abhorrent – but there, my beef is with the Bible itself, not with the true believers’ interpretation of it.
Conversely, I’d have no problem with religious liberals if they simply came out and said “we don’t believe the Bible is right, here’s what we believe instead.” What I do take issue with is a mentality that seems to be something like this: “We believe the Bible is inspired by God … well, most parts of it, anyway, but not that part about homosexuality being a sin, nor that part about wives submitting to their husbands, let alone slaves to their masters … or that bit about everyone going to hell who doesn’t believe in Jesus, or there even being a hell .. oh yeah, we also don’t really believe Jesus was the ‘son’ of God in any literal sense … or that there necessarily is a God … but other than that, we believe the Bible is just about right.”
As to the areas where you think religious conservatives fall short doctrinally (everyone “falls short” of consistently following his beliefs, but that’s a different issue), I’m not sure what you mean by “jubilee.” I am pretty sure, however, that NO part of the Bible says anything about “economic justice.” That’s a Marxian concept, not a Biblical one.
I don’t think that is a reasonable interpretation of the First Amendment. No one argues it should be absolute, let alone that it should be construed to undo laws that existed at the time it was enacted, and which everyone back then surely assumed it did not prohibit.
At the most, a strict constructionist might argue that a federal obscenity or libel statute is unconstitutional because it exceeds Congress’s powers under the commerce clause, or whatever other grant of power it may be based on.
but there, my beef is with the Bible itself, not with the true believers’ interpretation of it
My beef is with their interpretation, because it is so often shallow, self-serving and ignorant. We can’t expect every believer to be a Talmud expert, but there’s a long way between being able to argue Shammai vs. Hillel and thinking that you can know exactly what the words of the Bible mean by looking up their English translations on dictionary.com.
I don’t think that is a reasonable interpretation of the First Amendment.
I don’t either, but strict constructionism has to draw the line somewhere–and do we draw it from what the Framers wrote? Which Framers? (They didn’t always agree.) Early Supreme Court cases? (Lino Graglia gives a great lecture on how Marbury vs. Madison is highly suspect.) And no strict constructionist can honestly argue that the First Amendment doesn’t cover flag burning.
This is why I consider Baehr v. Lewin to be a much better-reasoned approach to same-sex marriage than the Massachusetts decision; it’s grounded solidly in established Constitutional analysis. But because it has a ‘liberal’ outcome, it is called judicial activism.
(By the way, I had any lingering conservative idealism about “judicial activism” driven out of me in law school, on studying the recent history of civil forfeiture on the War on Drugs, and on listening to ostensible ‘conservatives’ explain why they supported Bowers v. Hardwick on public health grounds.)
Amos 2:7, for starters, XRLQ:
They trample on the heads of the poor
as upon the dust of the ground
and deny justice to the oppressed…
Mythago, I agree that there are hard cases where reasonable minds can differ. I wouldn’t call someone a judicial activist for disagreeing over those cases. Baehr v. Lewin is not such a case – as you’ve effectively admitted yourself by not answering my earlier inquiry as to which sex Hawaii’s law discriminated against.
I disagree that all strict constructionists must agree that the First Amendment protects flag burning. The basic idea is right, but reasonable minds can and do differ as to the scope. That said, it’s probably not coincidental that the US Supreme Court decision striking down the anti-flag burning law was penned by everyone’s favorite strict constructionist.
Hugo: it’s quite a stretch from “be just, and don’t oppress the poor” to “workers of the world, unite.” Even if that is the correct interpretation, it’s hardly the kind of slam dunk you can fault other Christians for disagreeing on.
as you’ve effectively admitted yourself by not answering my earlier inquiry as to which sex Hawaii’s law discriminated against
Sorry, did I miss that? As you know, a ‘separate but equal’ law raises a Constitutional issue. The fact that the law makes a sex-based distinction means there is an Equal Protection issue–just as in Loving, the Supreme Court rejected the State of Virginia’s argument that since there was no racial discrimination, there was no problem.
As soon as you start drawing lines based on a suspect classification (race, gender, alienage, whatever), you raise an Equal Protection problem. The fact that you do not treat one group worse than another is not relevant to whether there is a Constitutional issue. Claiming otherwise is to claim “separate but equal” exempts a law from the 14th Amendment and state analogs thereof.
Baehr referred to Loving, a long-established decision, and looked to the wording of the federal and state constitutions. There is no radical Constitutional analysis in Baehr, no mushy language about fairness, no decision that sexual orientation is a protected class after all. The only reason anyone calls it ‘judicial activism’ is that it found Hawaii’s marriage law as written to violate the Equal Protection Clause of Hawaii’s state constitution. That is, it was a decision conservatives didn’t like.
Strict constructionists would look to the Framers’ intent and note that flag-burning is exactly the kind of political speech the First Amendment was designed to protect; there’s no evidence that the Framers assumed, as with libel or obscenity, that of course such laws would not be banned by the Free Speech Clause. And I give Scalia a great deal of credit for not falling into the lame brained “But…but…THE FLAG!!!OMG!!!” analysis Rehnquist penned.
Don’t get me started on Employment Division v. Smith, though. I still wonder which law clerk talked him into that one.
xrlq, are you an expert in Hebrew and Koine Greek, able to read fluently without recourse to lexicons? Knowledgeable about the various civilizations of the Old and New Testament worlds, of the archaeological evidence? I would like you to present your professional qualifications for being able to interpret the Bible “literally”. Or, if not an expert yourself, provide your textual and theological experts and THEIR qualifications.
Oh, please. Of course it is relevant. Anti-miscegenation laws, like the “separate but equal” rule your heros the courts gave us for almost a century, served one purpose and one purpose only: to thwart Reconstruction and keep the former slaves from fully integrating into society. In fact, the statute challenged in Loving v. Virginia wasn’t even neutral at that level, as it sought to preserve the “purity” of one race only (i.e., blacks were free to marry non-blacks, just not whites).
Now, if a woman could credibly argue that Hawaii’s law was discriminatory against her by virtue of her status as a woman, that would be one thing. That’s not what happened, and you know it.
Suppose the California Legislature went the way of Jim Crow, and decided to impose a punitive tax on blacks. They knew they couldn’t tax race directly, so instead they taxed people according to what ZIP Code they grew up in, and I get stuck with the tax. As the intended victims of the law, blacks who grew up in my ZIP Code can bring a race-based challenge to that law and expect the benefit of strict scrutiny. As a white, incidental victim of the policy, I can’t. My only claim is that the state lacks a rational basis for discriminating against me based the non-suspect class that is my childhood ZIP Code.
Repeating your mantra about this idiotic decision being a well-reasoned one does not make it so, nor does it change the fact that the ruling offended not only judicial conservatives, but the overwhelming majority of the population of an overwhelmingly liberal state.
NancyP: I’ll defer to your expertise on Hebrew and Greek, just as soon as you identify the portions of the Bible you think I’ve misinterpreted, and explain why.
Now, if a woman could credibly argue that Hawaii’s law was discriminatory against her by virtue of her status as a woman, that would be one thing. That’s not what happened, and you know it.
Turning to a scolding tone does not make your argument sound, Xrlq. Nor does the rhetorical device of calling segregationists “my heroes.”
Please read Loving and Baehr. I can’t believe you have, because the legal reasoning of Loving is quite clear: drawing a race-based distinction raises an Equal Protection issue, even if you do not actually put one group in a worse position. The State of Virginia argued, in Loving, that there was no “discrimiantion” because whites and blacks were treated the same–nobody crosses the color line. And SCOTUS properly rejected that argument.
That is what happened, and you know it. The fact that you’ve gone off analysis of the actual cases and back into petulance says volumes.