Sunday, July 30, 2006

Winning by losing

Today's New York Times' opinion section contains an interesting and apparently unintended juxtaposition of articles.

The first discusses the ongoing reaction to last year's Supreme Court ruling on eminent domain, Kelo v. New London.

Sometimes, Supreme Court cases have a way of highlighting issues that had been absent from the national agenda, and the cases can provoke reactions that have a far greater impact than the ruling itself. ....

Dana Berliner, a lawyer with the Institute for Justice, the libertarian legal group that represented the homeowners in both the Connecticut and Ohio cases, said the United States Supreme Court decision, Kelo v. New London, gave rise to “a tidal wave of outrage.”

“The decision brought to light this incredible rift between what lawyers and cities thought was the law and what the American people thought was the law,” Ms. Berliner said. “This is certainly the situation of losing the battle and winning the war.”

And Kelo isn't an isolated incident. Our history is filled with examples of court rulings that prompted legislative changes that eventually overthrew the original ruling. A 1972 Supreme Court ruling, for example, is the reason many states now have so-called "shield" laws protecting journalists from having to reveal confidential sources.

Or, as one observer put it:

“I always tell my students,” said Douglas Laycock, a law professor at the University of Texas, “that one of the best things you can do is lose a case in the Supreme Court.”

The article notes that most such backlashes are "conservative, populist reactions to decisions that seem elitist.” That fact notwithstanding, the second article, a few pages later, applies similar logic to another issue: gay marriage, and recent adverse court rulings in New York and Washington state.

These defeats have demoralized supporters of gay marriage, but I see a silver lining. If heterosexual instability and the link between heterosexual sex and human reproduction are the best arguments opponents of same-sex marriage can muster, I can’t help but feel that our side must be winning. Insulting heterosexuals and discriminating against children with same-sex parents may score the other side a few runs, but these strategies won’t win the game.

So I’m confident that one day my son will live in a country that allows his parents to marry. His parents are already married, as far as he’s concerned, as my boyfriend and I tied the knot in Canada more than a year and a half ago. We recognize, even if the courts do not, that it’s in his best interest for us to be married.

He's not really arguing that there has been a backlash in favor of gay marriage. Indeed, recent events show the reverse: rulings in favor of gay marriage in Vermont and Massachusetts led to bans on gay marriage (and civil unions) in several states.

But that's current voters; future voters are a different matter. Young adults have much less of an issue with gays than their elders do. Hence my ongoing prediction that in 20 years gay marriage will be a fact, as those young adults become steady voters.

Conventional wisdom notes that people grow more conservative as they get older, and I think that's true. So perhaps those young adults will turn against gay marriage as they get older. But the conventional wisdom applies most strongly to areas where self interest plays a role. Young people, who have little, are more supportive of wealth distribution; as they get older they become more supportive of laws that let them keep what they've earned. The bigger a stake people have in the current system, the more they will support it and oppose radical change.

With gay marriage there's no self-interest factor; even most opponents of gay marriage admit that allowing gays to marry wouldn't affect their own relationship. So it comes down to what people think of homosexuality, and that's not the sort of belief that is likely to swing a whole lot as people age.

Given that, it might be tempting to describe these articles as illustrating short-term vs. long-term outcomes. But that's not really the case. Kelo, for instance, is both a short-term and a long-term winner.

So what's the distinction? I think it's simple. The Kelo case provoked such loud, bipartisan outrage because it seemed to attack a fundamental American value: the right to be secure in one's property, regardless of how well or poorly that property is managed in the eyes of outsiders.

Opposition to gay marriage reflects no such underlying value. It's a personal decision, driven at least partly by the belief that homosexuality is wrong. And not just wrong, but so wrong that homosexual relationships are objectively inferior to heterosexual relationships and thus not deserving of the same rights.

And that's simply not the consensus. There are plenty of people who feel discomfort about homsexuality; but not all of them believe that their discomfort justifies discrimination -- especially because, whatever you think in the general case, there are plenty of homosexual couples that have better relationships and make better parents than many heterosexual couples. Opposition to gay marriage thus finds itself in conflict with another underlying American value: our sense of fair play and equality under the law.

Rulings that offend an underlying value do not stand for long. Hence, Kelo. And hence gay marriage in the long run.

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