Friday, March 28, 2008

In re Marriage Cases S147999 – Part I

I’ve been focusing a lot lately on what is being broadly referred to as the dumbing down of America. Got any ideas on how to measure this? I suspect it’s simply too vague a concept, smart and dumb, to be measured meaningfully, and we are doomed to go on forever hitting each over the head with anecdotal evidence of how stupid people are (, how uninformed our high school students are (, and how ridiculously irrational some of the assumptions are we work with on a daily basis.

One that has been like sand in my teeth is the conclusion that we have not suffered another 9/11 attack because Bush is doing a great job. But that’s only a variation of the claim that because I got over my cold, that proves that God loves me and answered my prayers. And that’s only a variation on the claim that since Obama did not denounce Jeremiah Wright a long time ago, that means he loves Farrakhan and that means he hates America and that means he’s controlled by the Muslims, and if that weren’t enough proof, just look at his middle name.

The other biggie that has been bugging me is this notion that there are two sides to every story. That truth always lies in the middle.

There are two things wrong with that. First, by seeking to explain everything from the middle, you reduce and even eliminate important information that should govern your thinking. As my friend Ed once pointed out, if your head is in the oven and your feet are in a bucket of ice, “on average” you’re pretty comfortable. If one person loves you and another hates you, is the best course of action to stay away from both and be neutral?

We should be able to work out these ideas on the basis of common sense, but there is evidence everywhere that people still operate on the basis of idiotic principles instead, seeking to solve problems with solutions that have not worked before, for example, or pumping ourselves full of medicines for depression that worked for Aunt Edna’s bursitis, or looking for keys over here where the light is better instead of over there where you dropped them.

Those of us who grew up with religion were taught early on that there is something “beyond reason” which is worthy of respect. I still hold that view, I’ll have to admit. But giving too much respect to something beyond reason leaves us terribly vulnerable to the thought that we can dispense with evidence for our claims.

We have reached a place in the culture where rights outweigh responsibilities, and that means we have less reason to be civil, less reason not to throw trash on the sidewalk, less reason to watch out for the other guy. It also means “I have a right to believe what I want to” outweighs “I have a responsibility to ground my assertions.” It means we don’t need to discipline ourselves, educate ourselves, or sacrifice ourselves for a good cause. Holding the belief that any opinion is as good as any other leads to the assumption that whatever the majority says should hold. We forget that’s only another way of insisting that might makes right.

Here’s my favorite current example of that folly. In 2000, 61% of California voters supported a proposition, Prop. 22, which stipulates that marriages by people of the same sex in other places should not be recognized in California. 61% is close to a 2/3 majority, and 2/3 feels like a powerful force indeed. How could we, in a democracy, go against the will of two-thirds of the people?

Without a good reason for the contrary, majority rule is the democratic way to go, of course. But then again, we need to be careful we aren’t missing that good reason, if there is one.

On March 4th, the California Supreme Court took up the challenge to Prop. 22 and the claim by the City of San Francisco (God bless this place forever) that the State of California and its governor, Schwarzenegger, were wrong to overturn the marriages by gays and lesbians performed there because the law prohibiting same-sex marriage is unconstitutional.

I went to hear the oral arguments, and have since become almost obsessive about replaying them again and again, and sifting my way through the 44 amicus briefs. You can do this, too, incidentally. For the oral arguments, – go to and click on the first entry under “Archived Broadcasts” – In re Marriage Cases – video. Set aside three hours and 34 minutes. To read the amicus briefs, go to Set aside a good two weeks of eight hour days if you want to get the full impact. Seriously. You can work and earn money anytime. How often can you read amicus briefs in anticipation of a Supreme Court decision?

While I wait, with inordinate impatience, I have had lots of time to reflect on what just happened here. What I witnessed was evidence that the founding fathers understood our current dumbing down potential and accounted for it in the balance of powers. And in establishing a Republic, rather than a mob democracy.

What’s going on is the defenders of Prop. 22 are insisting that 61% is the voice of the people and must be obeyed. Opponents are saying the real voice of the people, the more sober voice, lies in the state Constitution, and it is appropriate for the Supreme Court to decide on whether that proposition, or any law like it, is in line with the rights established in that Constitution. This battle is being fought elsewhere, as well. It was won in Massachusetts in 2004, and in Iowa in 2007, although it is being held up in the courts. A decision is pending in Connecticut. California promises a decision by June 4.

The point I am making is that there are two different things going on simultaneously. The marriage equality debate is one. The other is the debate over whether this is in fact an instance where the court needs to correct an error made by a whole lot of citizens acting not necessarily in bad faith, but without proper reflection on justice in America. Put more simply, this is a debate over whether the majority is wrong.

As I suggested, a whole lot is riding on this. Enormous progress has been made to root out homophobia, and it’s an open question whether homophobic animus is what is driving the resistance to marriage equality. If the Supreme Court fails to overturn Prop. 22, and puts marriage equality on hold, we will be in for a much longer run before we get what Canada, Spain, Holland, Belgium and South Africa have already.

But if they listen to the claims of the marriage equality side (including the overwhelming majority of writers of amicus briefs) and demonstrate that in America political might does not always mean legal right, we will have a bit of relief in the evidence that we haven’t lost the ability to reason.

Six of the seven Supreme Court Justices are Republicans, appointed by conservative governors. That scares the bejeezuz out of people who believe ideology always trumps reason. I am optimistic, however, that in this august group there is a dedication to duty, as well as a belief that applying the law and keeping government’s hands off marriage rights is a solid conservative principle.

The tension is almost crippling at times. I have their pictures on my wall and I try on a daily basis to read their minds, as if those old photos of their faces would give me that information.

OK, so I’m not limited to reasonable behavior.

But just because a germ-free environment is almost impossible to achieve, we don’t have to perform open-heart surgery in a sewer.

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