Perception of Gays

January 22, 2004 | 63 comments
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A recent Meridian Magazine article discusses gay marriage. While the article has been praised elsewhere in the blogosphere, I thought the article as a whole was unconvincing, and there was one sentence in particular that I found disturbing. Ms. Barlow states that:

“There is no societal benefit to homosexual unions which are based primarily on genital stimulation and the perception of love.”

Quite frankly, anyone who thinks that gay relationships are based primarily on “genital stimulation” (wow – she can’t even bring herself to say “sex”!) should actually meet a few gays. Or even crack open a newspaper once in a while and read about committed, long-term gay relationships. Many Mormons seem to have the idea that all gays are wild partiers running naked around Greenwich Village. (And if that were true, then gay marriage might be a bad idea — but it’s not the case.)

Some of this perception of gays as excessively promiscuous or interested only in “genital stimulation” may be caused by disproportionate media attention on flamboyant gays. However, anyone presuming to discuss homosexuality (as Ms. Barlow does in her article) should recognize that most gays are much more sedate. Are all heterosexuals like Britney Spears?

It is doubtless true that some gays (like some straights) are interested mainly in sex. However, a large number of gays are stable, intelligent adults in monogamous, long-term relationships and who truly care for each other — not sex maniacs interested only in “genital stimulation.” And if we as church members want to discuss the politics of gay marriage, we should base the discussion on facts, not stereotyped images.

Finally, a quick note on the main reasons why I thought the article as a whole was unconvincing:
(1) It’s based on a non-sequitur (People say marriage is about love, but it isn’t, therefore no gay marriage), and
(2) It relies on a marriage-as-baby-factory idea which is difficult to reconcile with other marriage rules.

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63 Responses to Perception of Gays

  1. Adam Greenwood on January 22, 2004 at 9:56 am

    “Marriage as a baby factory.”

    A marriage without issue is a marriage unfulfilled. I don’t think in your zeal to defend gay marriage you should denigrate a fruitful marriage in quite this way, or act as if having children were some sort of freakish after-thought.

  2. Brent on January 22, 2004 at 10:29 am

    Kaimi, I don’t think anyone who opposes same-sex marriage argues that all homosexuals are wild partiers running naked anywhere. The facts are, however, that, statistically speaking, homosexuals, especially males, are significantly more promiscuous than heterosexuals. This is not based on media coverage, but rather on scientific studies. (Incidentally, I find it curious that you would suggest that the media sensationalizes homosexuality and portrays it in a negative light when the media is so clearly in favor of the homosexual rights agenda). Furthermore, I think church members and others find the sex-outside-of-marriage (man/woman marriage) aspect of homosexual relationships objectionable itself. The fact is that homosexuals cannot actually engage in sexual intercourse. Thus, their sexual relationship is reduced to “genital stimulation.” Yes, I am aware that many heterosexuals conduct their relations in similar fashion. However, we are discussing the perceptions of church members.

    I have this strange feeling that we’ve been down this road before. No one doubts that significant numbers of homosexuals lead otherwise “normal” and stable lives. Nevertheless, the question really comes down to what does society want to encourage. If you allow same-sex marriage, society is saying that it is no different than heterosexual marriage. What impact do you think it would have in our public schools and other public forums. What about the terms husband and wife? Same-sex marriage would radically alter how our society functions in ways we can’t even imagine right now.

    I have yet to hear a single good argument justifying changing the institution of marriage as it has existed since Adam and Eve (i.e. union of man and woman) other than the fact that some people want it to change. You do not change the building block of society to satisfy the selfish demands of 1-2% of the population.

  3. lyle on January 22, 2004 at 10:48 am

    (wow – she can’t even bring herself to say “sex”!)

    kaimi…i got a goode laugh out of your interpretation/skew of her interpretation/skew.
    thanks.

    however…it isn’t, imo, that she could ‘bring herself to say sex.’ more likely, i think it is faire for the author to create a euphemism that they consider more appropriate when they are trying to ‘frame’ a debate so as to not concede anymore legitimacy than necessary to the other side.

    granted, ‘genital stimulation’ is a little harsh for those indvidual couples (of which i know several) who have lived in a stable relationship for years. i don’t want to get into a debate re: % of couples v. wild swingers, or % of the population as a whole. but i’m reminded of a recent nyt article about the problem of crystal meth and gay bath houses…which harkens to the promiscuity which originally gave raise to the AIDS epidemic. sum: it isn’t democratic, just, or accountable to allow individuals to impose the costs of their lifestyle upon others. (although…MOs in UT might need to take this advice re: public education and imposing high taxes on others to educate large families).

  4. Matt Evans on January 22, 2004 at 1:06 pm

    Hi Kaimi, I think you misconstrued her argument by omitting an intermediate premise. You wrote that her argument was “based on a non-sequitur (People say marriage is about love, but it isn’t, therefore no gay marriage)”.

    Her argument is actually:
    (1) People think marriage is about love,
    (2) it isn’t,
    (3) marriage is about optimizing the likelihood that children are raised by a mother and father,
    (4) therefore no gay marriage.

  5. Greg on January 22, 2004 at 2:49 pm

    Kaimi, I had much the same reaction as you. Is it impossible to imagine that many gays feel toward their partners as each of us feel about our spouses? If so, it is a failure of charity.

    Also, I found it interesting that Ms. Barlow’s argument emphasizes the newness of companionate marriage, as opposed to the ancient model of institutional marriage. [When Claudia asserted something similar here (http://www.timesandseasons.org/archives/000282.html#more), it caused a brouhaha.] Is Barlow really advocating that we return to pre-20th century concepts of marriage (which were tied up with coverture and other legal doctrines that are now anathema)? Good luck with that. I doubt many of us got married to “join two families” or “establish kinship patterns and family names,” or to “pass on property.” I sure as heck didn’t.

    On Barlow’s reasoning, Mormons should also be fighting to repeal no-fault divorce laws. They have been utilized to end far more families that the non-existent gay marriage laws have been used to create families, yet I never hear much of an uproar about them.

    As I’ve repeatedly said, I’m not sure if I should or shouldn’t be fighting against gay marriage. But Ms. Barlow’s argument is totally unpersuasive and betrays a certain cynicism on her part.

  6. Matt Evans on January 22, 2004 at 3:08 pm

    Lots of marriage advocates have been trying to end no-fault divorce for years. Utah Senator Craig Taylor introduced a bill in the Utah Senate in 1997. It got out of committee and to a contentious floor debate, but I don’t remember at what stage it failed.

    I was an intern at the time for the Senate Majority Whip, and quickly explained to him that if marriage is viewed as a contract, the state should enforce it unless it’s breached. Alimony is a partial remedy, but it doesn’t go to the aggreived party, it goes to the poorer party. The argument in favor of no-fault divorce is the problem of proving fault, especially in cases of psychological or emotional abuse.

    If you have any good ideas about how to better structure marriage and divorce laws, marriage proponents are all ears. Their failure isn’t for a lack of trying.

  7. Matt Evans on January 22, 2004 at 3:14 pm

    Let me use this current thread to remind those who are agnostic on gay-marriage that I’m still waiting for responses on the other gay-marriage related threads.

    For Kaimi, the question is here: http://www.timesandseasons.org/archives/000159.html#002191

    For Greg, Kristine, Gordon and Taylor, the question is here: http://www.timesandseasons.org/archives/000293.html#002115

    For the benefit Kristine and Taylor, who said they were tired of discussing gay-marriage, I changed the subject to a fresh issue they haven’t ever discussed.

  8. Greg on January 22, 2004 at 3:54 pm

    Matt,
    You must admit that neither the Church nor its members have put a fraction of the resources into repealing no-fault divorce laws that they have in arguing against the chimera of gay marriage.

  9. Nate Oman on January 22, 2004 at 4:18 pm

    OK. So lets talk contract law…

    Matt suggests that if marriage is viewed as a contract that it ought to be enfoced unless the contract is breached.

    What do you mean by “enforced”? In regular contract law, to enforce a contract means to give the promisee damages in the event of breach by the promisor. The measure of damages is generally the expectation of the promisee. That is, we put the promisee in the same position that they would have been in had the promisor performed.

    So what exactly does one promise to when one marries. This becomes the nub of the problem. We can think of alimony payments as an expectation measure of a contract to provide economic support for life, in return for companionship, household labor, and the like. Alimony could then be understood as the difference between life time economic support less the cost of companionship, household service, and the like, ie the expectation of the aggrieved party. Notice, however, that the proper payment of expectation damages depends on the terms of the contract. In most marriages we have no idea what these terms are. Supplying them involves coming up with a model of marriage and essentially imposing it on parties. Of course if the model we come up with is simply a default term of the contract then we need not worry so much about it, since parties can opt out. There are two problems with this approach: (1) it is not clear that most folks think of marriage in contractual terms. It is still statusy enough that most people do not engage in formal, pre-marital bargaining; and, (2) there is reason to suppose that when people marry they radically under estimate the liklihood of marital breakdown, this error leads them to radically underestimate the costs of foregoing pre-marital bargaining, and this in turn will lead to undesirable levels of pre-marital bargaining given the default rule.

    How to get around the problem? Don’t award expection damages at all! Instead you opt for reliance damages, that is you put the parties in the position that they would have been in had they never entered into the contract in the first place. Notice, this approach does not require that you specify the actual terms of the contract. You need only show that costs were incurred as a result of entering into the contract (whatever its terms were). Of course, including opprotunity costs will involve all sorts of really difficult, counter-factual questions about life plans and the like. On the other hand, it frees us of the problem of imposing a socially dictated model of marriage on the parties.

    Another solution to the expectation dilemma is to simply award restitution. That is, you award the promisee the amount of the benefit conferred on the promisor. This goes to issues like professional liscenses obtained by one spouse early in the marriage with the help of the other spouse’s labor. You award the other spouse some of the present discounted value of the liscense. Again, this will involve all sorts of really difficult factual questions (not necessarily counter-factual ones in this case), but it also saves us from specifying the precise terms of the contract.

    When the law awards alimony to the poorer spouse there is no reason to suppose that this fact alone means that marriage cannot be conceptualized within that legal framework in terms of contract. The poor spouse phenomena seems perfectly consistent with any of these three measures of damages, although I think that most often what is happening is the sub silentio award of some combination of reliance and restitution.

  10. clark goble on January 22, 2004 at 4:19 pm

    I’m not convinced no-fault divorce laws are the problem. I think the no-fault divorce laws were to avoid some of the egregious rancour that plagued divorces. That was having a big societal effect, especially on children. Certainly there are “unintended consequences” but those could probably be resolved by more training prior to marriage. For instance Utah wants to encourage some classes on marraige so that people don’t rush into marriage naively. The problem, as I see it, is in the front of the marriage not the rear. I should add that for Mormon marriages requiring some sort of marriage prep class prior to temple marriages probably would be a good idea. I know a lot of Bishops do this, although I hear the quality of classes tends to vary – often being little more than pablum without engaging a lot of the serious issues.

  11. Adam Greenwood on January 22, 2004 at 4:20 pm

    Greg,
    So why keep up the trend of surrendering?

    Also, humans being as they are, the changes that haven’t happened yet are more frightening then those that have. ‘Vice is a monster of such frightful mien,’ etc. For that same reason, efforts to block new disasters are much more likely to succeed, and are a better bet, than efforts to roll back the old ones. One war at a time.

    I think we’d be more likely to accept your advice about tactics if we thought you were in sympathy with our aims.

  12. clark goble on January 22, 2004 at 4:21 pm

    Regarding the “chimera” of gay marriage. I think the very valid concern of the church is that allowing state sanctioned homosexual marraige will significantly affect the *concept* of marriage.

    I think many of us who follow the church in opposing homosexual marriages would be willing to accept some sort of contractual agreement so long as it wasn’t *called* marriage.

  13. Matt Evans on January 22, 2004 at 4:22 pm

    Part of the reason is surely that it’s much harder to go back to the status quo than it is to preserve it. Once gay marriage is accepted across America, for example, the church will eventually turn its attention elsewhere. You can only hit your head on a brick wall for so long.

    And unfortunately, people didn’t realize how much no-fault divorce would change people’s attitudes toward divorce at the time state legislatures adopted it. People saw the problems showing fault created, but they didn’t see the symbolic value — the premise that marriage is an enduring contract — it held.

    The church has learned its lesson and knows it must fight _before_ society changes for the worse.

  14. Nate Oman on January 22, 2004 at 4:24 pm

    Incidentally, Mormons have a long tradition of no fault divorce. Territorial Utah was one of the first American jurisdictions to have essentially no fault divorce laws, a fact that eastern anti-Mormons siezed upon as further evidence of Mormon depravity. In addition, available evidence suggests that 19th century ecclesiastical courts, which did most the real work in 19th century Mormon family law, took a remarkably permissive attitude toward divorce. Brigham Young preached patience, long-suffering, etc. when he talk about marriage. However, he also seems to have had little problem granting divorces in simple cases of spousal incompatibility.

  15. Adam Greenwood on January 22, 2004 at 4:26 pm

    If the problems are before marriage, they are mostly pre-marital sex, cohabitation, and devaluation of marriage, nothing a little marriage class will solve. I took a few such classes and hated them. Take a large dose of pablum, mix in some stilted silliness about communication, and force discussions of sensitive disagreements, and, voila!, marital success!

    Marriage classes should be 5 minutes long: ‘Marriage is hard, you’re a selfish swine though you haven’t realized it yet, bite your lip, make sacrifices, cowboy on.’

  16. clark goble on January 22, 2004 at 4:29 pm

    Brigham Young, frustrated with a lot of the complaints in marriage actually had a day where he said anyone could change spouses if they wanted. Of course that was in the context of polygamy as well as some of the quick marriages for crossing the plains. I don’t recall the details of this and I’m at work so I can’t look it up. But I seem to recall that while Young preached rigorously on marriage he was rather open in practice on divorce. (Forgive me any forgetting of the details)

  17. Matt Evans on January 22, 2004 at 4:40 pm

    Reliance or restitution awards are given to the party who wants to maintain the contract. Alimony goes to the poorer spouse even if they are the one abandoning the contract.

  18. lyle on January 22, 2004 at 4:42 pm

    allowing ‘civil unions’ as long as they aren’t ‘called’ ‘marriages’ isn’t much of a solution.

    if this happens…how long will it be before it is ‘socially’ unacceptable to say ‘partner’ rather than spouse and ‘union’ instead of ‘marriage’?

  19. Brent on January 22, 2004 at 4:48 pm

    Unions are simply marriages without the title. They are not an acceptable “solution.” I put “solution” in quotes because we are only dealing with a perceived problem. Much of what homosexual couples seek in the way of rights can be dealt with through current legal mechanisms (e.g. wills, contracts, beneficiary designations, powers of attorney (both financial and for health care) etc.). What they want is legal status–societal blessing on their relationships. Civil Unions and same-sex marriage would be almost equally bad for society.

  20. Nate Oman on January 22, 2004 at 4:59 pm

    Matt: Restitution might be available even to a person who is breaching a contract. Reliance would probably not be. I suppose at this point we get back to the problem of underspecified contracts. The person “walking away” from the contract may actually be the non-breaching party, but we probably need specific contractual terms, or alternatively, specific contractual default rules, to figure this out.

  21. Greg on January 22, 2004 at 5:14 pm

    My point is that it is become increasingly uselesss to argue about gay _marriage_ because it will never happen. The most liberal state in the nation by many measures (New Jersey) just passed a civil unions law so as to avoid the whole debate. Any state court that has ruled for SSM has been quickly and decisively rebuffed either through amending the constitution, by popular initiative, or by passing a civil unions law. No state legislature has or will passed a gay marriage bill. That battle has been won by the traditionalists. Judging by all the opinion polls, its over. The word _marriage_ will be kept pure, maintaining society’s signal that heterosexual couplings are morally superior and more beneficial to society than homosexual couplings.

    So the real battleground is what the shape of civil unions (which exist in 4 or 5 states) will be. Here the anti-SSMers appear to be divided. Matt has said he supports the creation of a certain type of civil unions through Constitutional amendment (http://www.timesandseasons.org/archives/000293.html#more), and Clark indicates that many Saint would probably be ok with civil unions. Lyle and Brent seem disagree to some extent. This is where the action is, not _gay marriage_.

    Adam, I don’t mean to suggest that if we lose one battle we should quit the war. Only to suggest that we should think about the implications of the argument that we should go back to pre-20th century views of marriage if we rely on that argument (as the Meridian article did).

  22. Matt Evans on January 22, 2004 at 6:36 pm

    I wish I shared your conviction, Greg, and I definitely hope you’re right. But remember that even the most liberal states restricted abortion in 1967, and 6 years later abortion was legal in every city, town and hamlet in America.

  23. Renee on February 1, 2004 at 1:01 am

    I had gay roommates at 3 different times in my life. I have _no_ qualms saying that there is a greater percentage of promiscuity in that community versus committed relationships. Maybe someone will say that’s just my “perception” but after a decade with more gay friends than straight, that’s the “reality” I witnessed. They were not all flambouyant stereotypes (one’s even a Repubican. gasp!) but that heightened promiscuity still existed. The reasons for this are many.

    Nonetheless, I won’t defend it anymore than I would defend of straight promiscuity. One could even say that straight promiscuity is worse because it is a far greater chunk of the population participating in the behavior.

    Practicing homosexual behavior is no worse other sexual sins (yes, I know there are people who don’t think homosexuality is a sin). _BUT_ that doesn’t mean that it should be legitimized/normalized anymore than other sexual sins (yes, I know there are people who think we are born with certain sexual urges and should be allowed to act on every one of them).

  24. Greg Call on February 4, 2004 at 2:22 pm

    This development (http://www.cnn.com/2004/LAW/02/04/gay.marriage.ap/index.html )
    somewhat vitiates my point above, ie, it appears that the Mass. court has now explicitly required that that the state allow gay _marriage_, and not just civil unions. It will be interesting to see what happens at the upcoming Mass. constitutional convention, where a constitutional amendment defining marriage as between a man and a woman will be on the table. Any amendment, however, will not be able to take effect until 2006, at the soonest. So it appears to be almost inevitable that Massachussetts will have gay marriage for at least 18 months or so.

    Do any of our Massachussetts correspondents have better information on how its all going to go down?

  25. lyle on February 4, 2004 at 2:34 pm

    MASSACHUSETTS SUCCEEDS FROM THE UNION!!!

    FOR IMMEDIATE RELEASE:

    The Supreme Court of Massachussets today decided to succeed from the United States by stating that an un-elected body, by a 1 vote majority, is entitled to change 1000s of years of history and the overwhelming support of the majority of the people in the state.

    Critics point out that something similar happened in Alabama recently, and hope that The State Legislature and Governor will show more backbone and refuse to honor the Court’s imperalistic decree until the voters of the state, mired down by procedural hurdles, can decide the issue by voting on a proposed constitutional amendment.

  26. Jeremiah J. on February 4, 2004 at 3:13 pm

    Kaimi: “And if we as church members want to discuss the politics of gay marriage, we should base the discussion on facts, not stereotyped images.”

    This is very true and important, but neither you nor anyone else on this thread has actually talked about real research on this topic. There is a good amount of social scientific research on homosexuality, and it has shown that homosexuals, especially gay men, do indeed show a higher degree of promiscuity than heterosexuals, even heterosexual men. This is sometimes explained by the notion that gay men can easily find many willing partners whereas hetero men have a tougher time with women.

    Whatever the true reason for this difference, it presents a real problem for Christian acceptance of homosexuality, especially if it is based on a desire not to condemn what some people seem strongly (pre-)disposed to do. If we grant gay marriage, while holding to a strong condemnation of adultery, then we are actually only “accpeting as human” (Andrew Sullivan’s language) a small minority of the gay population–that minority which is actually inclined to live monogamously in marriage. The rest are strongly predisposed to promiscuity or at least serial monogamy. The argument from “the way they are”, like most normative arguments directly from brute facts, quickly results in absurdity.

    An additional, specifically Christian problem with accepting homosexuality is the fact that the New Testament condemnations of homosexuality were given not in a time of ‘homophobia’, but in a time of great accpetance of homosexuality. Hence it is unlikely that Paul was simply repeating some social taboo of his day, since the Greco-Roman world was actually quite tolerant of homosexuality.

  27. Kaimi on February 4, 2004 at 3:25 pm

    Lyle,

    It’s a basic principle of judicial review that when courts issue constitutional decisions, those decisions will go against the will of the majority. After all, courts can’t invalidate a law unless there is a law that has been passed with majority support. Thus, judicial review exists to protect minorities from majority abuse, not to rubber-stamp majority ideas. There is quite a bit of writing on this subject; a good starting point is Ely, Democracy and Distrust.

  28. Brent on February 4, 2004 at 3:40 pm

    Yes, but, when a court creates from whole cloth new rights never intended under the very constitution under which the court derives its authority, then minority and majorities alike have been subjected to abuse. Goodridge was rule by judicial fiat, pure and simple.

  29. Kaimi on February 4, 2004 at 3:42 pm

    Jeremiah,

    In a prior thread, I linked to some discussion by Eugene Volokh on the validity of studies purporting to show that gay men are more promiscuous than straight men.

    I wrote:

    “Note that studies purporting to show greater promiscuity among homosexuals have been criticized as statistically unreliable. See, e.g.,
    http://volokh.com/2003_05_18_volokh_archive.html#200329250
    and
    http://volokh.blogspot.com/2003_05_11_volokh_archive.html#200301162

    Later in that thread, Matt Evans and Greg Call also discussed the validity of studies. See http://www.timesandseasons.org/archives/000159.html .

    Volokh’s analysis suggests that at the very least, the big Masters/Johnson study, showing gays have about 12 times as many partners as straights, is methodologically flawed and unreliable. (Very unreliable).

    Volokh finds numbers that look more reliable. They do suggest that gay men are somewhat more promiscuous than straight men, with (depending on the margin of error), somewhere between about 50% more partners and about twice as many more partners.

    My observation is that the belief among church members and gay-rights opponents is that gays are much, much more sexually active than straights, a belief which corresponds more to the erroneous data criticized by Volokh than it does to the apparently more staid reality.

  30. Kaimi on February 4, 2004 at 3:49 pm

    Brent,

    That may or may not be true, and is certainly a fair topic to debate.

    My immediate point was much narrower — that invocation of “unelected body” and “majority of the people” histrionics is a red herring in the debate; it doesn’t get us anywhere.

    Every single exercise of judicial review — Marbury, Brown v. Board, Roe, Lochner, etc. — was a decision by an unelected body, overruling the majority will as expressed through their elected representatives. Saying “it was a decision by an unelected body overruling the will of the majority!” is at best, a complete misunderstanding of judicial review, and at worst, an attempt to stir up a mob mentality over procedures that are not really subject to question.

    Or are you (Lyle, anyone else?) suggesting we do away with judicial review?

  31. Nate Oman on February 4, 2004 at 3:58 pm

    The United Kingdom flirted with judicial review in Dr. Bonham’s Case (1610) — link here: http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs1.html — but they have rather firmly repudiated the idea in favor of parliamentary supremacy. They have a more or less functioning liberal democracy.

    American lawyers tend was poetic about judicial review, as though it were the end-all-and-be-all of a free society. The fact of the matter, however, is that lots of free societies do without it, and even in those countries that do have it (the majority of liberal democracies, I suspect) the courts are no where near as powerful as the federal judiciary.

    Don’t get me wrong. I LOVE judicial review. On the other hand, I am an American lawyer working for the federal judiciary, so the whole institution butresses my own sense of importance.

  32. Kaimi on February 4, 2004 at 4:09 pm

    Nate,

    Now who’s trying to secede? :)

    “Send me back to England — there’s too much damn judicial review over here!”

  33. Adam Greenwood on February 4, 2004 at 4:45 pm

    1) 50% and 100% differences are actually quite significant, and not nearly as modest as you claim.

    2) If Lyle isn’t, I am. I’d rather be ruled by the prejudices of the general population than by the active malevolence of a majority of the Supreme Court.

  34. Nate Oman on February 4, 2004 at 4:50 pm

    Kaimi: “dang judicial review” damnit!

  35. Kaimi on February 4, 2004 at 4:52 pm

    Adam,

    50% and 100% may sound like a lot, until you look at the numbers and realize that that’s a smaller gap than the difference between men and women. It turns out that straight men have three times as many partners as straight women. (That’s +200% — a bigger gap than the straight men / gay men gap).

    The solution is clear: If we really want to cut back on promiscuity, we should just get rid of all the men!

  36. Brent on February 4, 2004 at 4:56 pm

    I’ll toss in a vote to get rid of judicial review, at least how it is done at present.

  37. Kaimi on February 4, 2004 at 4:59 pm

    Also, the counter-majoritarian nature of the Supreme Court (or most any court in the U.S.) is not particularly pronounced. The Court’s members are appointed by politically elected officials, and are vetted by members of the political branches. They are also subject to impeachment if they are acting incorrectly or handing down decisions that are truly unlawful. Finally, they do not enforce their own decisions, and if they were to rule in a way that was clearly counter to the rule of law, the executive branch could refuse to enforce it.

    The point: Unrepresentativeness concerns are vastly overstated. What courts do get is a moderate measure of protection from political pressures, which is a very good thing for them to have.

    After all, would you rather, really, want the majority, or the legislature, or the president, to just be able to remove judges on a whim? Remember that the current system is in place for a good reason — to prevent abuses by the legislature and executive, abuses which the colonists were all too familiar with.

  38. Matt Evans on February 4, 2004 at 5:05 pm

    Kaimi,

    You’ve overlooked the structure of judicial review. Judges get their authority from the constitution enacted by majority vote. Their charge is to uphold the will of the majority as embodied in the constitution.

    The majority determined the proper balance between the majority and minority in the text of the constitution. When judges contravene the will of the majority as expressed by the constitution, they are no longer judges, they are monarchs.

    Where’s Captain Moroni when we need him!?

  39. Brent on February 4, 2004 at 5:06 pm

    The system is in place because Madison and Hamilton were shortsided in their view that the judiciary would exercise judicial restraint. It cannot honestly be said that the founders ever contemplated the judiciary coming up with decisions like Roe, Lawrence, Goodridge. I make this statement not based on the subject matter of such decisions but the overreaching and lack of legislative deference shown by such courts and the intentional misconstruing of Federal and state constitutions.

  40. Kaimi on February 4, 2004 at 5:14 pm

    Matt,

    Your argument is puzzling. When judges make rulings that go against the will of the majority, they base those rulings on the Constitution.

    A decision like Goodrich is not “contravening the will of the majority as expressed in the Constitution” but rather applying the constitution, which is superior law, to override contrary law created at the legislative level.

    You may disagree with the application. But that’s an argument about details of the particular case. When a legislative act is in conflict with the Constitution, the Constitution prevails.

    I’m curious about your position (and that of Brent, Adam, et al). To step away from Goodrich for a second and use an intentionally stylized example, suppose that Congress passed a law saying “No newspapers of any kind shall be printed.” (I’ll posit that such a law is a clear violation of the First Amendment). Suppose that the majority of the populace agrees that this is a good law. Would it be proper or improper for the Court to invalidate that law as contrary to the First Amendment?

  41. Nate Oman on February 4, 2004 at 5:19 pm

    Kaimi: In your second peroration in favor of judicial review you confuse the concepts of judicial independence and judicial review. One could have judicial review by elected (ie non-independent judges). This is the system in many U.S. States. You could have a fully independent judiciary without the power to exercise judicial review. This is the system you have in Great Britain.

  42. Kaimi on February 4, 2004 at 5:25 pm

    Nate,

    What’s being criticized is judicial review by an independent judiciary. (Presumably, the critics would be happt with either a lack of judicial review or with judicial review by a dependent judiciary). My defense is of both factors, which operate in unison in our system.

  43. Matt Evans on February 4, 2004 at 5:33 pm

    Kaimi,

    The courts are charged with upholding the constitution. If a new majority passes a law contrary to the will of the majority as embodied in the constitution, then the courts should strike it down. But not because it hurt minorities or was a bad idea. They strike it down because the majority of the people who wrote the constitution tell them to.

    When judges inject their own preferences, rather than the law as established by the majority who wrote the constitution, they are monarchs.

    I answered your stylized hypo, so please answer mine. The Massachusetts court strikes down the legislature’s laws providing biological parents have rights to raise their children, saying the law fosters nepotism on a grand scale and is antithetical to principles of equality outlined by the constitution. They order the legislature to remove kids from their parents and place them in group homes so every child will be treated equally and no child will be advantaged because of his parents.

    The Massachusetts court is wrong because … ?

  44. Randy on February 4, 2004 at 5:35 pm

    Brent, Adam, et al.,

    I suppose you would have no problem living under a system controlled by the will of the majority if you were, say, an African American living in the rural south 50 years ago. I suppose too you would have had no reason to object to the extermination order issued by Governor Boggs so many years ago.

    It is easy to say we would be willing to live by the will of the majority when we are in the majority or at least feel comfortable with our place in society. But majorities, as we all know, can be short-lived.

    Assume for a moment that Mass. passes a constitutional amendment to ban gay marriages. Now assume that at some point in the future the majority of the population of Mass. is in favor of allowing gay marriage (certainly not beyond the realm of possibility). Would you not want the courts to enforce the constitutional amendment regardless of the will of the people?

    You eagerness to jetison long-standing traditions of judicial review merely because you are angry with the Mass. Supreme Court seems to me a bit short-sighted.

    Still, we all need a place to vent . . . . .

  45. lyle on February 4, 2004 at 5:38 pm

    Kaimi: It’s a basic principle of judicial review that when courts issue constitutional decisions, those decisions will go against the will of the majority.

    NO! It isn’t…while the cases you cite uphold your principle, there are many more that fail. I think your sample is flawed. What about when the SCOTUS overrules itself? What about Dred Scott? Was that not a constitutional decison that went with the majority will of the people? And wasn’t it actually a very legalistic and very non-activist decision…despite being DEAD wrong?

    and even if your assertion was true, that doesn’t make it a correct principle. Simply because it is a judge, interpreting the constitution, and it goes against what most people want…that makes it ok? I guess we just need a different breed of judge to make some laws that liberals will find offensive enuff that they grow tired of judicial review.

    No, I’m not talking about complete revocation of the principal…but the other two branches should def. decide to place a permanent injunction upon the implementation of the decision until THE PEOPLE of the state can make a decision.

    Viva Captain Moroni! I for one would refuse to obey an unlawful order, which I view the decision of the MA Supreme Court to be.

  46. Nate Oman on February 4, 2004 at 5:39 pm

    Randy: How do you account for the successful experience of the United Kingdom? Or are we to see England as a place where the rights of the minority are routinely trampled because the Law Lords lack the ability to strike down Acts of Parliament?

  47. lyle on February 4, 2004 at 5:41 pm

    Randy: we all need a place to vent . . . . .

    This is NOT about venting. We can argue about history, and process, ends/means, etc…

    or do something about it. I for one am for action.

  48. Kaimi on February 4, 2004 at 5:42 pm

    Matt,

    Interesting, here’s my reaction:

    1. You’re trying to draw a comparison to Goodrich. I’m not sure that the comparison is apt. Courts generally have only limited equitable powers. Courts be able to strike down inheritance rules, child support, or other legal aspects of biological parent custody. Group homes seems like a real reach. Goodrich didn’t force a bunch of individuals to go marry each other; it altered the legal structure to allow marriages to take place.

    2. The Massachusetts court might be wrong on any number of U.S. constitutional grounds; its ruling might be in conflict with the Due Process clause, the familial integrity right, or the right to privacy.

    3. Your example might be an instance where the court’s ruling was so counter to the rule of law that the executive could properly refuse to enforce it. That’s a tricky area of law — Andy Jackson used that route once, and is generally criticized for it.

  49. Kaimi on February 4, 2004 at 5:51 pm

    Matt,

    I forgot to mention — such a decision would also be contrary to the International Covenant on Civil and Political Rights, and the Convention of the Rights of the Child. And those, of course, must be viewed as binding domestically. :)

  50. Greg Call on February 4, 2004 at 6:01 pm

    Lyle said, “I guess we just need a different breed of judge to make some laws that liberals will find offensive enuff that they grow tired of judicial review.”

    Been there, done that. Many of the pro-Warren Court liberal thinkers have had to rethink judicial review with the rise of states rights and other federalism jurisprudence by which “conservative” judges have struck down or held inapplicable Federal laws like the Violence Against Women Act, the American With Disabilities Act, or campaign finance measures. Were you up in arms about these decisions striking down or limiting laws enacted by representatives of the people? Most people’s view on judicial review tacitly hinges on whether the judge is one of “ours” or “theirs.”

    That said, it sounds like you are proposing that when judges are asked to interpret the constitution, they should try to figure out “what most people want.” Is that right?

  51. lyle on February 4, 2004 at 6:05 pm

    Kaimi: The ICCPR has been ratified, wtih reservations; but the Convention of the Rights of the Child has not…i.e. no force under U.S. law.

    Greg: No, I’m simply asking for judges to interpret based on original intent, and where we can’t come to a good agreement on the original intent…to shut the heaven up and let the people decide anew…i.e. get a new intent.

  52. Randy on February 4, 2004 at 6:12 pm

    Nate,

    I don’t profess to have any expertise on the merits or demerits of the legal system in the UK, but here are my thoughts, for whatever they are worth (probably not much). As an initial matter, I don’t think the early settlers of America would characterize the then state of affairs in the UK as a “successful experience.” Assuming things have gotten better since then, why is that so? Is it because they lack judicial review. Seems a bit unlikely. What else is at work? Perhaps part of the answer is that the UK is a fairly small and homogeneous society — at least when compared to the US. I suspect there is more here, but I confess to not knowing what the answer is. I do know, however, that I would be more than a bit unconfortable if people like yourself and the rest of the federal judicial machinery were not standing ready to uphold the rights enshrined in the Constitution, even though I do not always agree with the results reached (did someone say Bush v. Gore?).

    And Lyle, please don’t let me stop you from tilting at windmills.

  53. Kaimi on February 4, 2004 at 6:15 pm

    Lyle,

    I was being (mostly) tongue-in-cheek with my international law reference. I thought it would be a hit with the “The UN is Satan” crowd. There are certainly some people who would apply human rights treaties domestically (i.e. Jordan Paust), but even most of the major liberal scholars (such as Henkin) don’t do as far as Paust.

    One nit-pick about the CRC — there was a district court decision, reversed on other grounds, that held that portions of the CRC are applicable under customary international law. See Beharry v. Reno, 183 F.Supp.2d 584. I always thought that the District Court decision Beharry was an exceptionally well-reasoned opinion. Of course, I participated in its drafting. :)

  54. Greg Call on February 4, 2004 at 6:16 pm

    Lyle,
    So, what if the majority of a court comes to an conclusion about what the original intent is and that conclusion is totally contrary to what the overwhelming majority of people in society wants?
    You said earlier “Simply because it is a judge, interpreting the constitution, and it goes against what most people want…that makes it ok?”
    I assume you were implying a “no” to that question. Have you changed your mind?

  55. lyle on February 4, 2004 at 6:18 pm

    Kaimi:

    Good point. I’ll have to look it up. Customary International Law is often a good backup. Yeah…I got the tongue in cheek. I happen to be a federalist who loves the UN and wants a stronger, and formal, world government. Oops…don’t anyone go and quote me during my 2006 congressional campaign.

    Randy: Windmills? While I hope to be awarded the title of Don by the Spanish govt some day…that day isn’t today…I’m not old enough, and frankly…my vi(zion) is still 20/20. :)

  56. Adam Greenwood on February 4, 2004 at 6:20 pm

    50% to 100% is still significant. All you’ve demonstrated is that the differences between men and women are real, as are the differences between heterosexual and homosexual relationships. Suggesting that taking the differences seriously means eliminating men is, how shall I say it, a completely spurious argument.

    As for judicial review, the hypothetical oppressions of an unchecked majority are far outweighed by the real wrongs of the court–porn, abortion, the normalization of homosexuality. The courts should cease to be the supreme power in our system.

    I am not convinced that the courts constitutionally did much for civil rights that Congress didn’t do much better and not too long after. In no other area can I see that we’re that much better off for having the courts make the final decisions in our polity. Courts today would prevent a Boggs, but so would majorities today. Majorities then supported him and so did the courts.

    As for judicial review of constitutional principles dear to my heart–federalism and so forth–the courts are an extremely weak and ineffective reed. When states gave up selecting their own Senators they gave up federalism. I have no confidence that a Court in shining armor will come riding to the rescue, especially since that same Court has done as much to take decisions out of the hands of the states than any other federal institution.

    Greg,
    Your version of eliminating judicial review is silly. It would either mean that the court would only apply the Constitution in the absence of a congressional directive, or else it would mean that Congress/President can overrule the court. That’s all.

  57. Greg Call on February 4, 2004 at 6:29 pm

    Adam,
    I don’t mind being called silly if I knew what you were referring to. What is “my version of eliminating judicial review”? My only two comments on this subthread were: 1) saying that liberals do question judicial review and asking Lyle to clarify his position; and 2) asking Lyle to reconcile his originalism with the “don’t buck the majority” vibe of his earlier comments.

  58. Nate Oman on February 4, 2004 at 7:37 pm

    Kaimi: I just finished Beharry v. Reno, 183 F.Supp.2d 584. It looks like a fun case, and I enjoyed the opinion. I also don’t buy it. Much as I dislike our immigration laws (many of which I think are unjust and xenophobic), I think that contra the good judge from New York, the INA provision was quite clear. Given that the controlling law in the 2d Cir. at the time was both that Congress COULD make retroactive deportation requirements and that in the case of INA s.212(h) it actually HAD made that decision, the claim that congressional intent was not clear enough to override customary international law seems a bit forced. Furthermore, his reading of the Charming Betsy case requires not only that ambigious congressional statutes be read as harmonizing with customary international law (which seems to be the actual holding in Charming Betsy) but also that perfectly clear statutes passed prior to the rise of the customary rule in question ALSO be read to harmonize with customary international law, even when on their face they do not. This is more than a super-clear-statement rule. It is a supre-clear-statment-and-predict-the-future-concensus-of-European-law-professors rule. The cite the Marshall biography notwithstanding, I don’t think this is what John had in mind.

    On the other hand, I am wildly jealous that you got a case where you were able to research admiralty law. I dream of admiralty cases, and I have Gilmore On Admiralty law sitting on my desk for that magical moment when a case involving a Jones Act claim on the Mississippi or the Arkansas wafts into my office.

  59. Jeremiah J. on February 4, 2004 at 7:39 pm

    All: I think we would do well to heed Nate’s call for moderation in our ire about judicial review. Probably all modern countries have policies and judicial practices which contradict the sentiment of the majority of the country, with and without judicial review. And I happen to like many of these policies–there are majorities in some parts of Europe and Latin America in favor of torture to produce confessions from suspects, and other human rights abuses, against the practice of the judiciary.

    A handful of decisions over the last 40 years have also given some the false impression that independent judicial rule *per se* tends toward leftism (especially a leftism which disregards prevailing moral sentiment) while legislative politics, especially populist legislative politics, tends tends toward conservatism. But Western, and American, political history seems to tell a different story. The conservative tradition of political thought, has, moreover, tended put its faith in the power of the judiciary to check the immoderate tendencies of popular assemblies.

    It’s true that we’ve had something of a progressive, centralist, and elitist (in the neutral sense) period in the American judiciary, especially in the use of judicial review, but we should hesitate before taking this experience and making first principles out of it.

  60. lyle on February 5, 2004 at 9:08 am

    Jeremiah: I think we would do well to heed Nate’s call for moderation in our ire about judicial review.

    I disagree, respectfully. There is no moderation in preserving the end of a divine institution such as the family. Ok…let’s follow the means as close as possible…but if there was a time to resist judicial tyranny…other than Dred Scott and Roe…it is now.

  61. Kaimi on February 5, 2004 at 3:19 pm

    Nate,

    I’m glad you liked the opinion. And I hope you get a chance to work on at least on admiralty opinion during your clerkship. :)

    I recognize that Beharry is subject to some critiques. The major move that we made was in bringing the CRC into the realm of customary international law. Once a law has that status, it’s pretty black-letter, under Charming Betsy, that it has domestic force.

    (Note that either Bradley or Goldsmith — I can’t recall which right now — has written a thoughtful critique of Charming Betsy, and has advocated repudiating the Charming Betsy principle).

  62. clark goble on February 5, 2004 at 3:41 pm

    Lyle, there is a danger in that we sometimes take the ends as so valuable that any means are justified. Even if we value the end (the family) we must work to support it within the constitution we hold as inspired.

  63. Nate Oman on February 5, 2004 at 3:48 pm

    It seemed to me that Judge Weinstein was annoucning a super-duper clear statement rule for Charming Besty. I don’t see why laws that are on their face clear can’t abrogate CIL.

    I am agnostic on CIL, and don’t claim to know whether the CRC should be included within it, but I was a bit skeptical of that part of the opinion.

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