Left Flank

Two TNR editors have had a conversation about Proposition 8 and the legalization of gay marriage that has now gone three rounds. Both support gay marriage, yet I'm disturbed by the implication of their arguments. Jeffrey Rosen argues that judicial activism is a bad road to take, because it angers opposing majorities.

...when the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches.

In my view, gay marriage, like abortion, is one of those areas. The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear. Although bans on gay marriage are (literally) a kind of sex discrimination, it's not intuitively obvious to most people that the bans should be viewed as an effort to promote male supremacy. Nor has the immutability of a trait, which you emphasize, ever been necessary or sufficient for heightened constitutional protection: Religion isn't immutable, even though it's considered a suspect classification, while height is immutable, but short people aren't a protected class. Finally, some people--including some prominent gay commentators--support civil unions as a separate but genuinely equal alternative to gay marriage. They're not motivated by animus, they insist, but instead by a desire to preserve a traditional definition of marriage--hardly an argument that would pass the laugh test if race were involved. For all these reasons, I haven't been convinced by the constitutional analysis of three state Supreme Court decisions imposing gay marriage by judicial fiat. But I acknowledge that the arguments are close (like all constitutional arguments in tough cases), and for that reason, if the California justices' vision of equality had been endorsed, rather than repudiated, by the people, I would have viewed the decisions as legally shaky but constitutionally prophetic.

Rosen concludes that demography is the only hope. Richard Just counters the democratic argument, in a way that also illustrates why majorities can be tyrannical.

I know you believe that, if California voters had rejected Proposition 8, then it would have vindicated the court's ruling. But can it really be a true that a constitution contains a right if 52 percent of voters approve of that right, but does not contain the right if only 48 percent of voters approve? Is constitutional analysis really that flimsy? To put it another way: You mention that Brown v. Board of Education was backed by 54 percent of the American public at the time it was decided. But would Brown have been wrongly decided if only 49 percent of Americans had favored integration? Moreover, for all practical purposes, Brown applied to one particular region of the country. And, in that region of the country, there is simply no way that a majority of citizens in 1954 favored integration. (Indeed, if they had, then Brown would not have been necessary in the first place.)

It seems to me that there has to be a sturdier basis for constitutional analysis than the results of a 52-48 vote. Neither of us is an originalist; we both accept that the meaning of words in constitutions (both state and federal) can be reinterpreted as notions of human decency, progress, and liberty evolve over time. Of course, determining what vague words written long ago mean in the present moral context has to be done with reference to some sort of public consensus. But I think the metric that you're using for making this determination--four percentage points in a heated election, in which public opinion swung several times from one side to the other--is too narrow. There are other data points that strongly suggest a contemporary reading of the California constitution's equal protection clause ought to bar discrimination against gays and lesbians. Chief among these is science. Our understanding of what causes people to be gay has radically changed in the past generation. Fifty years ago, people would have scoffed at the notion that sexual orientation was an immutable category similar to race or gender. Today, that idea is widely accepted, at least by psychologists and others who study the subject. There are other data points, too. The overwhelming majority of young Californians support gay marriage, which suggests that, at some point in the next generation, there will be a widespread moral consensus on the issue. In other words, it's clear where history is headed on the subject, even if only 48 percent are there now.

Just concludes that homosexuals will have to prove the value of their lifestyle to communities to current opposing majorities. So, does this mean there is no equal protection under republican law? Do minorities just have to wait for majorities to dwindle into minorities finally to earn equal protection? Or, should we all wait for arguments to trump interests in the political process? Just and Rosen have accepted the animus against courts, so-called judicial activism, too readily. Who else will protect minorities - the executive? That's not even a measure I want to mention.

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(For a wholehearted endorsement, I enjoyed all of November 7, 2008's «New Rules».)

Bill Maher heaps scorn on religion - and I'm not defending religion in the opposite way Maher ridicules it - when the real «elephant in the room» is money, as a proxy for speech in this constitutional republic, reacting weirdly with organized religion. Joe Queenan has a good point, that some liberals in California, and in Arkansas and Florida, might not be as comfortable with homosexuality as they brag. And, the Mormons put up the money to give them the means and the legal cover to express their discomfort.

On the other hand, I don't blame a majority of African-Americans from not accepting a civil right for homosexuals. As The Economist quipped, «...America remains a largely conservative country, opposed to gay marriage, worried about crime and suspicious of tax rises.» It might be ungrateful, though, because of the support African-Americans received from other civil rights groups. And, perhaps a majority of mainstream Americans are unaware of the fractiousness of all these groups for a «Yes, we can!» moment. Or, how plutocrats-masquerading-as-a civil-rights group, i.e., Mormons, could create a swamp full of their own fetid cash, to make 52% of Californians believe Mormons weren't overrepresented and didn't need to be heard so clearly over the screams of a minority. Chris at TNR offers a sound argument responding to Jeffrey Rosen's contention, that «...the California Supreme Court's decision to impose gay marriage by judicial fiat might trigger a backlash that would overturn the decision by popular initiative.»

If the function of the courts is only to protect suspect groups when the public is also in agreement, or soon to move in that direction, then the courts would not be needed to rule in civil rights cases -- the discriminatory laws would be struck down by the legislature with the support of the people. The purpose of the courts is to guarantee that suspect classes of people, such as racial minorities, women, and gays, are not deprived of their fundamental rights due to the vagaries and whims of the majority. I would argue that is it precisely WHEN the public is in favor of stripping rights that the courts must intervene, and not when public opinion finally shifts in favor of equality.

There's also this misguided reaction to gay outrage at Proposition 8's defeat:

The anger coming from this side of the political spectrum in recent days has been shocking, breath taking. These people are not reasonable activists, willing to accept the outcome of democratic elections, but hateful, angry radicals willing to get rid of democracy altogether in order to accomplish their goal.

One would almost dare these individuals to take it one step further; singling out Mormons is unfair. Do the same, then, for Catholics, white protestants, African Americans and everyone else who voted for Proposition 8. Instead, they show just how biased and intolerant they truly are themselves; their complaints about 'intolerance' from the other side are increasingly hypocritical.

A word of caution to these people - and this is coming from the perspective of someone who believes it should be legal: you'll lose the battle if you try to turn this into a major cultural war. You'll be squashed, destroyed, without any hope of every reaching your goal.

Firstly, talk is cheap - that's why paying for it, or trying to suppress it, is really egregious. No one yelled, «Fire!» Secondly, America is a constitutional republic, not a representative democracy. Minorities deserve an extra measure of protection, regardless of whether I detest esoteric eschatological beliefs. And, thirdly - why I voted against this same amendment in Florida - is, that no one gets to tell me how to define my religious beliefs, especially when the question of where I put my money is involved. I might be alone in this conviction, but I hope as an American, someone doesn't take away my chance to convince others I am not wrong.

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California's byzantine Proposition 11 is a laudable fight against gerrymandering. Yet, open primaries just might be an easier reform. Or, perhaps, a committee of Buddhists taking a ruler and calculator to the state map and drawing square districts.

That's too simple!

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Michael Merritt expressed his preference for divided government, and here's a cautionary tale against a President McCain and a Democratic-controlled Congress.

Far from confounding the parties, divided government has enabled them to adhere to dogma. Democrats have succeeded at increasing spending and Republicans at holding down revenue, with credit and con games making up the difference. The result: the state budget, signed 10 days back by Mr Schwarzenegger, may not last the month. On Thursday the governor wrote Hank Paulson with an urgent request for $7 billion, without which the state may not be able to pay its bills in the short-term.

Like Mr McCain, Mr Schwarzenegger campaigned as a centrist who could check the ambitions of a Democratic legislature with the strength of his personality and principles. A President McCain might do better with a Democratic legislature than Governor Schwarzenegger has, but a Republican identity and fearsomeness don't guarantee that he will.

And, I was just going to argue something about remaining principled during a financial crisis.

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I guess this is an example of radical centrism. TMV's Patrick Edaburn takes «the hard line enviromental (sic) movement» to task for an unbalanced environmental approach, that «...is a deeper cause which allowed for the buildup of tons of fuel...» causing the 640-acre Trabing Fire in Larkin Valley, California earlier this month.

The dirty little secret that everyone wants to ignore is that another significant factor is the hard line enviromental movement. Just as they have contributed to higher energy and gas prices by fighting the building of any new refineries, they have also blocked reasonable efforts to protect against fires.

Talk about scapegoating! The San Jose Mercury News is a little more level-headed.

County planners say the last thing they want to do is put up roadblocks for homeowners, particularly when it comes to fire safety. But the Planning Department, which serves as the clearing house for all construction and tree-removal in the county, is obligated not only to the safety of residents but also to the enforcement of state and federal laws that safeguard such things as water quality, the stability of hillsides and endangered plants and animals.

«There's got to be a balance between environmental protections and allowing people to protect their houses,» said Planning Director Tom Burns.

It's that balance that has become the subject of recent debate, with critics contending the environment has too long taken precedence and hoping recent fires will tip the scale toward fire protection.

«Don't get me wrong, I love animals and plant species, but if we are going to allow for people to be in structures, we do need to provide for their safety and protection,» said Claire Machado, a local land-use consultant and Planning Department watchdog. «It's unfortunate it takes events like these to put the issue on the table.»

I don't want to sound like an enviro-radical (which I'm not), but isn't it at least an open question whether balance is possible after the construction of homes occurs, possibly ill-advisedly and excessively, in sensitive areas? Is it wise to assume any construction is just necessary?

Far be it from me to bring up the specter of over-population!

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TNR's Isaac Chotiner asks why California's Asian American population turned out for Senator Hillary Clinton on Super Tuesday by a 3 to 1 ratio.

It's worth keeping a map handy when thinking about Asian American voters, a diverse group whose ancestral homelands fall anywhere between Japan and Punjab. California alone has large populations of voters descending from India, Cambodia, Vietnam, the Philippines, Korea, Japan, and, of course, China. But Clinton's absolute evisceration of Obama among these voters, who composed 8 percent of Democratic primary voters in California, suggests that he did poorly with almost every (sub)-subgroup. This is surprising for a number of reasons, most of all because the best-educated nationalities in America tend to be Asian ones, and education has been a solid indicator of support for Obama among white voters.

In evaluating Hillary Clinton's success on Tuesday, it should not be forgotten that Bill Clinton was widely popular in California (and for obvious reasons, given the state's Silicon Valley-driven economic boom in the 1990s). Also, the Clinton administration made numerous prominent Asian American appointments, and received significant support from the Asian American community during Bill Clinton's 1996 reelection campaign (this fact is usually remembered because of the fundraising scandals involving Asian donors in that year). Clinton had a deft understanding of the outlines of what a new Democratic majority could look like--and cultivated various groups accordingly. "It is admiration for the Clintons," says University of Virginia political scientist Larry Sabato, when I asked him to explain the Asian vote on Super Tuesday.

Unfortunately, there are also less seemly reasons why Obama may have come up short in Asian American communities this week. California has a long history of battles over affirmative action, and as Henry Brady, a political scientist at UC Berkeley explained to me, "A lot of those fights pitted African Americans against Asians." Brady's colleague Taeku Lee put it even more bluntly: "Many Asian Americans have very deeply rooted and stereotypical reviews of African-Americans. [Blacks] will face a higher degree of scrutiny." David Lee, the founder of the Chinese American Voter Education Committee, appeared to second this view when he told John B. Judis and Ruy Teixeira, authors of The Emerging Democratic Majority, that one of the reasons Bill Clinton appealed so much to various Asian communities was that he "distanced" himself, as a New Democrat, from the party's African American base.

The most interesting theory I have heard for why Obama may have underperformed in Asian American communities came from Taeku Lee, the Berkeley political scientist. The Illinois senator has focused his campaign squarely on the theme of change, and on the promise of radically altering the status quo in Washington, D.C. Obama aides are not shy in arguing that their boss is leading a movement as much as an ordinary fight for the presidency. Rhetorically, at least, his campaign can seem almost radical. For ordinary Democrats fed up with eight years of the Bush administration, this has been his main selling point. But, in an interview yesterday, Lee gave a different and very interesting explanation for why Obama may have underperformed in Asian American communities. "Running on change is risky," he explains. "It's not the best way to sell your candidacy in some immigrant communities. Many people who just came to this country or who feel unsettled are looking to have their anxieties alleviated, looking for a sense of stability." When I spoke with an aide to a California congressman whose district includes a large East Asian population, he agreed with the assessment. "Many of our voters think his pitch is too radical. They are 'New Democrats' for a reason." It probably does not help Obama's cause that many of the immigrants who came to America were fleeing "revolutionary" regimes.

These issues aside, however, Obama's campaign seems to have something of a blind spot when it comes to some voters. Here, for example, is a typical passage from Obama's speech Tuesday night, which many viewers probably found powerful: "When people said that maybe we don't have to be divided by race and regions and gender... that the crumbling schools are stealing the future of black children and white children...that we can come together and build an America that gives every child everywhere the opportunity to live out their dreams." Completely missing here is any attempt to reach voters who may consider themselves neither black nor white. This is not to say that Obama never mentions Asians on the stump. In his victory speech after South Carolina, for example, Obama mentioned them, along with other ethnic groups, but only in the context of the diversity of his supporters: "There are young and old, rich and poor. They are black and white, Latino and Asian and Native American." And in recent weeks, he has been peppering his speeches with more direct appeals to Latinos, which is probably smart. But he still faces the reality that his words are, too often, not "post-racial" or "colorblind" but actually dichotomous. In short, it's not surprising some voters may feel left out.

Senator Obama's Punjab memo also didn't help. Kenneth Kim relates another Obama campaign slight.

The 80-20 Initiative, a political action committee dedicated to winning equal opportunity and justice for all Asian Americans through a swing bloc vote, asked all presidential candidates to answer the following questions last year: If elected, are you going to increase the number of Asian Americans in the federal judiciary? Are you going to enforce executive order 11246 to ensure equal opportunity for Asian Americans in work places?

Clinton and John Edwards committed to promote Asian American interests by answering yes to all of the questions, but none of the Republican candidates replied. Surprisingly, Obama declined as well. According to the 80-20 Initiative's website, Obama replied Yes to the questions only after the group modified the wording of two questions about appointing Asian Americans as federal judges. By then the group had already endorsed Clinton for the Super Tuesday primaries.

Then again, who cares for all those PAC's! That's old-style politics, right? Kim offers also offers a gender-related observation to go with this race-related one.

Chinese-language newspaper Sing Tao Daily also noted that many of this year's Asian and Latino voters became naturalized U.S. citizens during the Clinton administrations between 1992 and 2000, and that Hillary Clinton helping her husband campaign for presidency years ago in the Asian community added to her positive recognition. Sing Tao also said Asian women were particularly anxious to vote for a woman as president.

Finally, and a comment that really twists liberal identity politics around itself, there's the Vietnamese vote.

Vivian Truong Gia, publisher of Viet Tribune, says she got to interview Hillary Clinton while Obama did little outreach to Asian Americans. Though the Vietnamese community traditionally votes Republican, many broke ranks to vote for Clinton, says Truong, because «we want America to be strong again and are disappointed with the last eight years. China has become dominant and the United States so weak overseas.» She thinks that if Obama actually secures the nomination many of those who voted for Clinton would end up voting for John McCain.

This Asian-American support, along with Senator Clinton's appeal to Latino voters, all adds a slightly less Caucasian spin to former President Clinton's "Jesse Jackson" quip. It also seems there's a similar foreign component to Clinton's Asian appeal, and a soft power counterpoise to Obama's international appeal.

Latinos and Asian-Americans, or African-Americans? What "other" America do you foresee will assume the reins of political power?