Keep on Saying, 'Go Slow'...
Nov. 19th, 2003 01:00 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
varropdxConservative blogger Eugene Volokh criticizes the recent Massachusetts decision allowing same-sex marriages as being too hasty a decision likely to lead to the Feds banning same-sex marriage by constitutional amendment.
Volokh underestimates the difficulty of amending the Constitution, particularly for such a frivolous reason. After the decisions in the mid-80s struck down laws prohibiting flag-burning, politicians flocked to introduce legislation and attempt to amend the Constitution to prohibit flag-burning, but nearly 20 years later, it's still legal (but stupid) to burn a flag in public as political speech.
Volokh suggests "Go Slow," and let legislatures and citizen initiatives change the laws. This won't work. Minority rights are rarely introduced by legislation; the Civil Rights acts of the mid-60s trailed Brown v. Board of Education and Bolling v. Sharpe by 10 years, and Shelley v. Kraemer (banning racial covenants in housing) by more than 15 years.
Elements of the majority holding power tend to dominate the discourse and prevent legislatures from granting minorities the same rights as the majority. Call it "judicial activism" if you will, but courts are insulated from those who want to deny minorities their Constitutional rights, whether they're segregationists in the 1950s and 1960s, or fundamentalists today.
Volokh also argues that if a Constitutional amendment *is* passed banning same-sex marriage, it would be nearly impossible to repeal, and the amendment would be additional "proof" that same-sex marriages are intrinsically wrong.
There is precedent for repealing ill-advised Constitional amendments, however - Prohibition. Moralists of the early 20th Century managed to pass a Constitutional amendment banning alcohol, ostensibly to stem the effects of drunkenness, but also as a slap at recent immigrants who tended to consume alcohol. Prohibition was a failure, and was repealed in 1933.
Judging from the demographic breakdown of support for same-sex marriage, any constitutional ban is likely to be thought of as an embarassing anachronism down the road, and will be ripe for repeal.
"I don't trust you anymore, keep on saying 'Go slow...'" - Nina Simone, "Mississippi Goddamn"
Volokh underestimates the difficulty of amending the Constitution, particularly for such a frivolous reason. After the decisions in the mid-80s struck down laws prohibiting flag-burning, politicians flocked to introduce legislation and attempt to amend the Constitution to prohibit flag-burning, but nearly 20 years later, it's still legal (but stupid) to burn a flag in public as political speech.
Volokh suggests "Go Slow," and let legislatures and citizen initiatives change the laws. This won't work. Minority rights are rarely introduced by legislation; the Civil Rights acts of the mid-60s trailed Brown v. Board of Education and Bolling v. Sharpe by 10 years, and Shelley v. Kraemer (banning racial covenants in housing) by more than 15 years.
Elements of the majority holding power tend to dominate the discourse and prevent legislatures from granting minorities the same rights as the majority. Call it "judicial activism" if you will, but courts are insulated from those who want to deny minorities their Constitutional rights, whether they're segregationists in the 1950s and 1960s, or fundamentalists today.
Volokh also argues that if a Constitutional amendment *is* passed banning same-sex marriage, it would be nearly impossible to repeal, and the amendment would be additional "proof" that same-sex marriages are intrinsically wrong.
There is precedent for repealing ill-advised Constitional amendments, however - Prohibition. Moralists of the early 20th Century managed to pass a Constitutional amendment banning alcohol, ostensibly to stem the effects of drunkenness, but also as a slap at recent immigrants who tended to consume alcohol. Prohibition was a failure, and was repealed in 1933.
Judging from the demographic breakdown of support for same-sex marriage, any constitutional ban is likely to be thought of as an embarassing anachronism down the road, and will be ripe for repeal.
"I don't trust you anymore, keep on saying 'Go slow...'" - Nina Simone, "Mississippi Goddamn"
