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June 15, 2004

A Classic Strategem

You don't get much clearer examples of a certain strategy of rhetorical activism than this. Andrew Sullivan writes:

Jonathan Rauch evaluates Virginia's new law, forbidding same-sex couples from even setting up their own private contracts to protet their relationships:
Before Thomas Jefferson substituted the timeless phrase "pursuit of happiness," the founding fathers held that mankind's unalienable entitlements were to life, liberty and property. By "property" they meant not just material possessions but what we call autonomy. "Every man has a property in his own person," John Locke said.

It is by entering into contracts that we bind ourselves to each other. Without the right of contract, participation in economic and social life is impossible; thus is that right enshrined in Article I, Section 10 of the Constitution. Slaves could not enter into contracts because they were the property of others rather than themselves; nor could children, who were wards of their parents. To be barred from contract, the founders understood, is to lose ownership of oneself.

To abridge the right of contract for same-sex partners, then, is to deny not just gay coupledom, in the law's eyes, but gay personhood. It disenfranchises gay people as individuals. It makes us nonpersons, subcitizens. By stripping us of our bonds to each other, it strips us even of ownership of ourselves.

Americans have a name for the use of law in this fashion, and that name is Jim Crow.

Yet the social right finds nothing wrong with this. And no anti-gay marriage conservative has condemned it.

Completely ignored is the fact that conservatives who oppose same-sex marriage don't agree with Rauch and Sullivan about the law's breadth and effects. This is a classic political move of which Sullivan makes frequent use — casually treating a matter of dispute as if opinions are unanimous in order to engage in ad hominem through imputation. The "social right finds nothing wrong with this" because they don't believe that "this" is what's in play.

I'm not going to repeat my opinion about the Virginia law in response to Rauch, because both sides are now simply repeating themselves. Rauch, however, is doing so not to persuade, but as a call to action. The Washington Post headline of his piece is "Virginia's New Jim Crow." He declares that awaiting the judiciary's opinion "could take years." That being the case, people around the country ought to give the legislature "some help in recognizing its error," through boycotts and media pressure.

Then Rauch brings up another incident that actually represents the current cultural struggle much better than he realizes:

... when Rhea County, Tenn., tried to ban gays from living there, it became a national laughingstock and hastily backed down.

Of interest, in this comparison, is not just the suggestion that Virginia, despite legitimate disagreement about what it has done, ought to become a place of derision. It's also that Rhea County provides an example of a case in which there was no disagreement, and yet Sullivan, among others, attempted some of his same tricks.

The significance of Rauch's comparison goes still deeper. Yesterday, Jeremiah Lewis noted another story out of Rhea County:

Judges have once again called upon the fallacious and errant "Separation" argument to support activism concerning religious activities in conjunction with government-sponsored programs and institutions. Here, a voluntary Bible class has been deemed in violation of the separation of church and state because it teaches the Bible as a religious truth.

Seventy-nine years ago, the Scopes Monkey Trial raised the question of whether it ought to be legal to teach evolution in Rhea County. Now, a three-judge panel of a U.S. Circuit Court of Appeals has ruled that the county's schools cannot teach the Bible as if religious claims about it are true. Perhaps social conservatives can muster some small gratitude to our opponents for having the patience to allow the courts to work their magic on that issue.

Posted by Justin Katz at June 15, 2004 1:47 PM

Your "classical strategem" is nearly a universal amoung pro-SSM activism and thought.
As you mentioned in the previous post we are dealing with 2 to 5% of the population. Yet their concerns are presented as the sum total of legitimante concern.
The "classic strategem" is an obvious and entire "strategy"
That stratagy is as folows.
-- All oposition must be framed as narrow minded bigots, - no argument about the state of marriage or whats important to society & children may be allowed to gain preeminance over the cause of Gay "civil rights" --

In this regard, Virginia's law MUST be unconstitutional (based on a "irrational animus") or Massauchusets law is not a valid legal argument.

Don't you see whats happening here Justin?
(I assume you do..)
The activists are hopping that the courts (at a minimum) will stike down limitation such as Virgina,s while keeping the door open for further actavism twoard gay marriage.

The Judicial strategy is one of incrementalism.
Thus they rertain the ability to impose the logic of {gay marriage = Black civil rights movement} until they feel they can saftly impose it nation wide under the same rubric.

In that regard the rehtoric wont change, and cannot be allowed to change when it comes to arguing legal issues in this debate.

Occasionally authors and pundits are allowed wider reach when discussing SSM as social policy.
(as long as its pro-ssm)When discussing LEGAl policy however; the argument must revert to oppresor/oppresed - all opposition are mindless bigots.
This is what happens because they chose a legal stratagey in pursuing SSM rather then legislativley.

I hope I made my point.
This seems to me the crux of SSM as a political question before the courts. Are increasingly more judges willing to paint majorities of the populace and their representatives as bigots?
And if so, do they do it incrementally over time, or directlly through the supremes.

(they, of coarse will wait to see what happens in Mass. )


Posted by: Fitz at June 15, 2004 4:40 PM