26 March 2013

SCOTUS and turning things red

I've written at some length about gay rights, gay marriage, and the various associated causes. I think these would place me rather firmly in the pro-gay marriage camp, for practical and ideological/moral reasons. I didn't change my status photos today though. And this is why.

The Supreme Court is hearing cases regarding state issues on laws of marriage. The Supreme Court isn't a court of public opinion. It often decides things that are rather unpopular. Flag burning is legal, prayer in public school (when led by school officials) is not. And it has unpredictable effects when it does so. Interracial marriage was deeply unpopular when it was decided (barely 40 years ago) but is mostly tolerated today, while abortion is still just as divisive as it was at Roe v Wade. It tends to decide things for very different reasons than the public understanding of "right-wrong" or what should or should not be legal. So. It doesn't have to say in a few weeks or months that any state anywhere has to allow homosexuals to have equal legal status in marriage contracts under the 14th Amendment's protections that people like me find relatively convincing (as I do also for abortion rights and a host of other things the government at various levels has at times seen fit to ban or restrict). It might not do that even if it upholds legal rights in California by overturning Prop 8, or if it upholds legal rights by overturning the Defence of Marriage Act and allowing federal benefits and legal status to be determined at the state level (as marriage and divorce laws have been determined for decades). It doesn't have to make a sweeping and decisive ruling for or against and it's not necessarily the most likely event even if lots of pundits and court watchers have speculated about what would happen if it does do that (pundits like making dramatic predictions rather than concerning themselves with whether or not their predictions are accurate). I think (from looking at prediction markets) it's probable that Justice Kennedy (as the deciding vote mostly likely for), may affirm some federal rights here, but whether that's the majority opinion including the 4 liberal justices and maybe Roberts, or whether that's a secondary ruling that isn't made while striking down the law only in California or only declining any federal definitions superseding the state laws, is not necessarily clear yet.

In any case, the Court isn't going to be swayed by your change of profile photo to do something convincing. This is more where I stand. That's a symbolic show of support. Grand that, to wear red, or to change a photo. It makes us feel better with a minimal effort, it does not cost us much of anything to do it. Given social media's dominance from younger people and younger people's strong support of this cause, it's not surprising to see so many of my friends taking up this message themselves as a result. Were the court set to overturn these rights more broadly, I might agree a demonstration of support would be more useful (I am aware the Court is very unlikely to do this). But I don't like mere symbolic actions very much. And don't like partaking of them myself (I wasn't fond of the Chik-Fil-A boycotts mostly because I didn't want to go there anyway, and most of the people who were protesting didn't either). I won't look down upon those that do them in this case, but it also doesn't seem like a very practical use of time.

I'd suggest an alternative show of support. People who live in a state that doesn't support legal equality should petition their representatives in state governments or in Congress and the Senate to do so, and explain why this matters to them when doing so (for example by pointing out the myriad of other laws that intersect with marriage to create the social institution as a civil one that should be governed by fairer and more accessible priors than traditional values, which can be imposed elsewhere than in legal strictures). People who live in a state that doesn't support legal equality should start or join petitions to place votes on ballots overturning bans, or establishing such rights. Since most of the people in my social circle do not live in Washington, or the North East, or Maryland or Iowa, and instead live in Ohio, Illinois, Indiana, Michigan, Kentucky, and elsewhere, we don't have states which recognize this as a problem and have resolved it accordingly. (Note to Illinois residents, your state has passed this partially via the State Senate and legal civil unions, go pester your state representatives and governor). We should not presume that this problem will be resolved, or even go away, because the Court will rule on it (indeed, it's still probable it won't go away at all for most of us). We who support this cause should instead seek to rally support further by taking action in the legislatures and ballot boxes of our local communities and states. HRC, who has come up with the photo of support on facebook, has a petition inclined to express this opinion. This too is less painful than it is useful, but it would be a bigger step forward in action.

Most challenging of all. We should also confront our friends and family members who don't share in this conception. Not angrily, if possible. But in search of understanding what it is they object to most strongly and why, or why they think that should be state policy rather than a neutral footing, and so on. Ask questions. Don't presume. Don't judge and dismiss them for being bigoted out of hand. There are practical or ideological reasons to oppose homosexual marriage rights out there, and their basis isn't always and obviously rooted in bias and prejudice. Discern if their motives are in fact bigotry, or ignorance, or some other preference. See if they have thought deeply and decisively on this issue or if they've merely adopted some cultural markers they think are significant without much thought and input as to the potential flaws of that approach. Many people approach the problem from the perspectives of the importance of "defining marriage", but lack the perspective to understand that marriage has already been broadly re-defined, both recently and in the distant past. To exclude polygamy, or to include multi-racial partnerships, or to include more expansive divorce protections, or greater autonomy and protections for women within these pairings, and so on. These re-definitions are often seen, by marriage equality opponents, as significant if not more pressing as problems with the existing institutions as they are now practiced, with or without gay rights. It is not established from these arguments that keeping such restrictions would improve or harm their cause but they do indeed still make them and find them persuasive.

Find common ground to acknowledge that we perhaps do have a society that no longer prizes life-long unions in the same (presumed) way as our ancestors or as these few objectors would prefer we prize them, but that the solution to that isn't to restrict who can aspire to these supposedly desirable unions in the first place. Find common ground with those that say the state should have no business by acknowledging this might be an ideal state (for libertarian-minded people), but it is not the one the polity we live in has chosen to construct and live within, where benefits and legal rights flow from these unions of mutual choice and respect and love. The enemy of the good is often the perfect here. Seeking out places where legal benefits and rights are unnecessary rather than seeking to abolish the entire civic institution at once in response to a change in its formal abilities establishes one's goals more properly as being anti-statist rather than anti-gay. Acknowledge that religious institutions have their own separated moral establishments and rituals, and that people may live under these rules or abandon them in a free and tolerant society. And so on. These are not painless gestures, but they are often the case that they need be made to allow our elders and others to accept changes and modifications to the society they must live in too.

Change is coming here. Demographics point to it even if the Supreme Court won't (and it might yet anyway). A society that prizes tolerance and basic legal equality will adapt to this, even as it will still have its holdouts and curmudgeons. Changing people's hearts and minds is ultimately more important to acceptance and the successful practice of these reforms than changing laws and it takes engaging them to understand where their hearts and minds have set themselves against you, your friends, or other people who you know and respect. Interracial marriage, as a comparison, is still only mildly accepted (and not so much in the South, where it was most recently illegal). Gay or lesbian couples are still going to have a long battle in many places to gain acceptance and avoid repression. Even if courts grant and try to ensure for them the legal rights they seek, many will not do so without grudges or will try to find ways to avoid doing so. One victory is not a war make. All fronts must be pushed.

Update: For the record, to extract the maximum practical value, in the short run these would be the states that petitioning and harassing with state and local governments would have value (in no particular order)
1) Illinois
2) Rhode Island
3) Delaware
4) Hawaii
5) Oregon
6) New Jersey
7) California (sort of)
8) Nevada
9) Minnesota
10) Pennsylvania
11) Colorado
12) Wisconsin

Most of those above listed already have legal civil unions, and it is possible this will account for most of the legal rights under changes in DoMA even as it requires stronger civil unions law in some cases or lacks the social value of being able to say one is "married". Several are in the midst of passing changes to the laws permitting same sex marriages or have had them held up in one or another branch of their government (or are being determined positively, potentially, by the Supreme Court soon).

These states one should do something else (like try to sway public opinion by talking to people).
1) Mississippi
2) Alabama
3) Louisiana
4) Georgia
5) Arkansas
6) South Carolina
7) Oklahoma
8) Texas
9) North Carolina
10) Tennessee
11) Wyoming
12) Kentucky
It will be a while before public opinion shifts there to where a vote will be useful, possibly over a decade or two in the top cases. Note that they're mostly in the South.....

There would be where a mix of both are required (they're right around but behind the national average).
1) New Mexico
2) Michigan
3) Arizona
4) Montana
5) Alaska
6) Virginia
7) Florida
8) Ohio
9) Iowa (sort of)
10) North Dakota
11) Nebraska
12) Indiana
13) Missouri
14) West Virginia
15) South Dakota
16) Kansas
17) Idaho
18) Utah
The top is more likely to see some action sooner. (Ohio is... right in the middle, which is not impressive). The variance out west is strange (see Montana, versus Idaho or Colorado versus Utah).

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