perfidy

Arguing a strict equivalence is a little off base. Even if gays were subject to the same discrimination that blacks were subject to in the fifties, which they clearly are not; the basis is different. Homosexuality is something you do, and although the argument has been made that it is inherent (and I'm not contesting it one way or the other) it is not the same as skin color, which short of Michael Jackson cannot be changed.

Marriage has meant the union between a man and a woman. Few would argue that the family is a key institution in human life. Screwing around with it is dangerous, as are all social engineering schemes. We've seen that already. But just because we've already screwed around with it doesn't justify further screwing around. The ancient greeks were rather more tolerant of homeosexuality than we are. But they never thought that gay men and women should be marrying each other.

This is not in the same class as Brown v. Board. Even without this decision, there is nothing that prevents homosexuals from living together, practicing there lifestyle, and getting lucrative jobs in interior design and every situation comedy on TV. Its not necessary, and frankly, aside from the happy pictures, does this decision really change anyone's lives? Those couples no doubt already live together. They are a bit happier for having a formal recognition of their love, and for having stuck a finger in the eye of the straight majority. This is not world shattering progress in civil rights.

Buckethead, I see your point but disagree on several principles of fact and opinion.

First: to argue that the ancient Greeks were more tolerant of homosexuality than we are is to posit incorrectly that homosexuality as a social construct is an historical constant. As the work of many historians such as George Chauncey has shown, homosexuality in its modern form-- as an identity, as a lifestyle, as the thing it is today-- dates from little earlier than the early 20th century. Historians who point to the mash notes that Melville wrote Hawthorne, or who discuss the relationship between Achilles and Patroclus, miss the point. Gayness as we understand it didn't exist. For that matter, identity politics as we understand them didn't exist either in any recognizable form.

So, while I agree that the family is a key institution in human life, I disagree that it is an unchanging constant around which all revolves, a sun fixed in the center of a pre-Copernican social universe. What constitutes a family has changed along with everything else. Three hundred years ago live-in servants were family members for all practical purposes, and the family was a far more permeable unit than that which is now widely understood. Even the way that families interact with children has changed greatly in that short time. It used to be that children wouldn't even get a name until they were out of infancy because the death rate was too high. From the time they could walk, children were valued as economic producers as much as they were on their own merits. And let's not even talk about the ways in which the relationships of nuclear family members to each other has changed in that same time: the changing roles of men and women; the decline in strict hierarchical thinking; the emergence of women, children and other players into political existences of their own within the superstructure of "family".

So, while I agree with you that family is important, I feel you are placing too much emphasis on the nuclear family as understood in the latter half of the 20th century. As great as that arrangement is, it's only the most recent in a long string of new "traditional" arrangments. Plenty of paleoconservative handwaving to the contrary, there is no evidence that children raised in stable, loving gay households turn out to be gay themselves (not that there's.... you know), serial killers, paedophiles, rapists, or used car salesman in any proportion different from that of the larger population.

What is so bad about creating more stable and loving families? According to the 2000 census, only 23% of Americans live in nuclear family environments. More, please!

As for your second point, that nothing is stopping gay couples from living together, etc., how can you argue with a straight face that this decision has not changed lives. How happy are you to be married-- married-- to Miz B.? Did it change your life?

We've been over this before as well. Marriage confers a whole host of benefits and obligations onto each member of a couple, from hospital visitation rights to power of attorney, to acting as loan guarantor to the right not to testify against your spouse in court. Some of these are minor points, some major points indeed. But together, they all stand as evidence against your point that gay marriage is only about being "a bit happier" and sticking it to the (straight) Man.

Finally, I understand you are arguing from moral and social grounds. But how do you address the underlying and concrete legal issues (such as I've mentioned) that moral and social objections don't address?

That is how Brown is like gay marriage-- it isn't as world-shattering, but the basis for argument is much the same.

Moreover, Buckethead, my real question is this-- how was Brown NOT judicial activism, and if it was, why is it so much worse this time around?

In answer to your real question, Brown was Judicial activism. I would argue that that was activism in service of a better cause. However, there were many bad side effects, which is typical of Judicial activism. Decades of forced busing, for one. Judicial activism is not just judges making unpopular decisions. It is judges making decisions not solidly founded in the constitution. Like, say, roe v. wade with its penumbras and crap. Dred Scott was a terrible decision. But it was better argued, less "activist," at least in some senses. Totally lacking in justice, of course. Activism like all things can be good and bad. I think this is activism in a bad, or at least pointless cause. But in general, finding mysterious penumbras and rights never imagined by the founders in the service of the latest leftist cause de jour is a bad thing. At least the flag waving nutcases realized that they'd have to amend the constitution to achieve their goal.

In answer to your first comments, though - well I differ a bit.

Sure the family has changed over the years. Servants, extended family, different kinds of houses, mobility, blah blah blah. But you're using that as a smoke screen for the one, essential characteristic at the center of all of these 'different' marriages. That at the center of it all was a man and a woman. That is constant.

Constant, and essential to the happiness of mankind. Most of the social pathologies we see in urban america can be traced to the precipitous decline in marriage among blacks. (Which happened after welfare. Before that, marriage rates among blacks were higher than with whites.) Marriage needs protecting, because it is essential. The pill, nofault divorce, the scourge of radical feminism and socialist utopian thinking have taken hits on marriage. This is one more. Like I said, social engineering is dangerous.

The rise of modern identity politics is one of the most unfortunate political developments of the last century. That gays would partake of it is perhaps inevitable, but hardly commendable.

As to the happiness issue, yes, I am happier being married to Belinda. But I was happy before, too. And I was not subject to job, housing, educational or other discrimination. But neither are gays. That's why I say it's not on the same level as Brown, even if you agree with it, which I obviously don't.

Look, I've already given up on this issue. I was just making the point that it's hardly on the same scale as Brown, or in fact any of the other great civil rights triumphs. To a certain extent, it's not about equality. I think it's mass selfishness on the part of the gay community, insisting that they have something they don't need, just because the straight people have it, and it will piss them off. Upset the dominant paradigm!

I was with you until the end there. Selfishness? Don't be a cad.

I just got back from lunch, and I feel less grumpy. As I pondered over the subject while munching pizza, I thought that was a little overwrought.

[Quotin' Johno: The Massachusetts decision has been decried as base judicial activism which usurped legislative power by construing a civil-rights decision possibly (or probably) at odds with the explicit wishes of a majority of the population. How is that functionally different from the Brown decision, which did the same thing on a far larger scale and yet is hailed as a towering landmark in the history of the US Supreme Court and a great and just victory for civil rights?]

Lord, sir, thats a big question. First, lemme sidestep the discourse between you and the esteemed Buckethead as you all stepped into the definitions of fambly. Back to the History Lesson of how the two are different ... as I see it, anyway.

The Brown decision WAS judicial activism to the nth degree. Folks weren't just mildly perturbed, they were ready to lynch Earl Warren and Co. I used the verb lynch in complete seriousness. Many of the public were indeed that pissed.

The difference between school integration and gay marriage couldn't be more profound. Gay marriage is met with ... talking heads, newspaper editorials, the occasional weak lawsuit, and a bunch o blogging. Supreme Courts ever'where are planning to deal with the issue later. Much later ... like after the fact. By doing this, gay marriage has been happening in the absence of judicial oversight. Judicial activism this ain't.

School integration was met with Massive Resistance. In Virginia, the entire public school system was shut down for five years. In Arkansas, the National Guard accompanied schoolchildren through throngs of furious racists. In Alabama, they elected George Wallace to the governorship effectively from 1963 to 1987 (his wife ran and won when he met with term limits.) A whole heap of ugliness ensued from Selma to Boston.

Had integration been put to a vote it would have been defeated resolutely. Had school integration required a vote under our constitution, it would never have happened. That's the word. Never.

Gay marriage, on the other hand, is met with ambivalence. Americans are a magnanimous people and despite a strong puritanical streak revealed in attempts to tell others how to behave, American are pretty adamant that others shouldn't tell them how to behave. Thus they are often sympathetic to folks who wish to simply be left alone to live their lives in a boringly normal fashion. Getting married is pretty damned boringly normal. It's awfully hard for anyone to paint the desire to get hitched as a radical act.

"Honey, quick to the ramparts! Two people in love are getting married!"

See? Yeah, not everyone's happy about the definition of marriage changing but no one's blowing up churches.

My two cents done long been spent.

GP, nice contribution. I was looking for someone to get into that side of the question, because it's one that, despite my background US history (for that matter, black history), I wasn't clear on.

One thing. By this statement, " It's awfully hard for anyone to paint the desire to get hitched as a radical act," it's clear you haven't spent much time in the Ivory Tower, where everything from choosing toothpaste to doing two women at once can be interpreted as a "radical act."

/johno thanks the Great Spirit he got out while he could.

Maybe I should blow up a church. I have a paper model of Winchester Cathedral. I'd have to build it first, though, and that would take a while. But then I could blow it UP! However, I don't think that would make a difference.

Buckethead, if you're looking to blow up a church, I'd recommend you get one with a one-way valve that will accept an air compressor. Churches take a lot of lungpower if you try to do it unaided.

> it's clear you haven't spent much
> time in the Ivory Tower, where
> everything from choosing toothpaste
> to doing two women at once

I choose doing two women at once!

[I am so in trouble. But dammit it was just hanging there right over the plate. I HAD to hit it, you honor.]

<sarcasm> I don't understand what the problem is here. I don't see any problem.</sarcasm>

No, it's not functionally different from Brown, though you could argue that the courts are not looking at the issues it should be when making the opinion, e.g. Is it about legal contracts? Marriage? Reproduction, etc. Mind you, these are also two different courts. I'm going to get rambling here because I'm on the late shift again...

1) Brown was about equality in education, realizing that 'separate but equal' was not reality, and trying to remedy that. Brown was against defining an entire class of citizens to lesser rights. And let's get this straight, it was about legal minors not getting equal rights. I think most of the gay couples getting married have reached the age of majority. What I'd like to see is two gay teens at the age of consent try to get married in MA. Now THAT would make an interesting story.

2) Brown was filed to overturned Plessy v Ferguson. I don't believe there is a legal precedent yet to be overturned by the courts when it comes to gay marriage. But hey, this could be the first one.

3) Where do the sex therapists stand on this? I'm talking about the people who work with hermaphrodites in choosing an identity. If sex or gender is mostly clothes on the outside, I don't get it. If marriage is partly about successful reproduction of the species, which many folks purport it to be, then does that mean sterile people can't get married and share a legal and contractual bond? I mean, there are places that sterilize the severely mentally incompetent, but I guess those folks can still get married? Well, okay, maybe not if they are incompetent.

4) Judicial activism is okay with me, as long as it's the kind I want. I can't wait till Scalia and Thomas retire. Woo hoo!