Just Above Sunset

It’s hard to escape the past. It tugs at you like some monster in the dark, something you cannot quite see, pulling on your leg, trying to pull you under the dark waters, where you will surely drown. You want to keep in the present – that’s where life is – but you’re alone and treading water far out at sea, in the dark, trying not to panic – and something is pulling you under. 

Is the metaphor too dramatic? Perhaps it is, but, if you were in college in the sixties, there are those chain emails from your friends back in the day, telling tales you don’t quite remember, asking you about what you forgot long ago and hardly matters now. You’re trying to pay the bills and wondering about that new and odd noise the car is now making, and the general everyday stuff needs attention. If you’re civic-minded you follow the news, and you wonder who will soon lead the nation – the decent and thoughtful young black man, the hard-as-nails, shrieking and perhaps delusional Woman of Steel, or the elderly, befuddled, but oddly pleasant war hero – and wonder if it will be war with Iran soon, and whether the economy will actually completely disintegrate and your golden years will be spent mumbling bitterly under a bridge. Then it all floods back – there was that weekend in Chicago. Things were happening – big things – and you had been there, and you’re pulled under. The present disappears – the wife, the kids, the job and the bills. That’s back on the surface. You’ve gone under. It’s 1968 again. You’re there.

Oh sure, you may be a member of AARP and read that magazine they send you – full of sound advice on how to manage your diet and finances and bladder and whatever else, now that you’re an old coot, even if you never imagined you’d ever be one. It happens, and you deal with it. But then the feature article in the latest issue jumps out at you 1968: The Year That Rocked Our World – “Forty years ago the nation staggered through twelve cataclysmic months. We know them well. We were there.”

So you’re back there once again. If it makes you feel any better, you’re not alone. The same thing is happening in Paris – people remembering, and the young folks puzzled, or concerned with other matters and politely indifferent to your memories of stunning events, high purpose and bold actions.

The world has changed. You know it. You read reviews of popular movies you’ll never see, as they’re not produced for your demographic (old coots), like the teen comedy Harold & Kumar Escape from Guantanamo Bay (all the excruciating detail at Wikipedia here). You’ll babysit the grandkids while their parents go see it – it’s not for you, and you know it. But you glanced at a few reviews and perhaps seen a clip. All that civil rights stuff from the sixties? That’s so old – the main characters in the movie, when faced with obtuse racial profiling, aren’t that outraged and angry. They’re more puzzled than angry – it’s as if they’re dealing with someone from another age, far in the past, and riff on the absurdity of it all.

So concerns about race are for the old farts, and their flunkies. Everyone has black friends, Asian friends, and Hispanic friends, and Muslim friends – and enemies too of course. What’s the big deal? They may have patiently sat through your tales of Selma and Bull Conner, and in school had to read that Letter from the Birmingham Jail, and they’ve heard of Rosa Parks. But they also sat through Ancient History and know about the Fall of Rome. Yeah, so? That’s not this world. You take notes, pass the final, and move on. It’s interesting and all, and good to know. But that’s not where you are, if you’re in the present.

It’s the same with gay and lesbian issues. Everyone has gay friends, and there are plenty of gay characters on television and in the movies, and that’s something that just is. What’s the big deal? When some televangelist goes on a tear about the evils of gay marriage, you shrug – the old man is stuck back in some place that has nothing to do with anything you know. Hell, your gay friend has good notes for a class you missed and maybe you can trade favors – you both need to pass the damned final. That he has a steady boyfriend is hardly relevant. What does that matter?

And so it goes. And you’re not surprised by what happened on Thursday, May 15, which would be this:

California’s Supreme Court declared that gay couples in the nation’s biggest state can marry - a monumental but perhaps short-lived victory for the gay rights movement Thursday that was greeted with tears, hugs, kisses and at least one instant proposal of matrimony.

Same-sex couples could tie the knot in as little as a month. But the window could close soon after - religious and social conservatives are pressing to put a constitutional amendment on the ballot in November that would undo the Supreme Court ruling and ban gay marriage.

James Dobson - chairman of the conservative Christian group Focus on the Family, which has spent thousands of dollars to get the measure on the ballot - called the ruling an outrage. “It will be up to the people of California to preserve traditional marriage by passing a constitutional amendment. … Only then can they protect themselves from this latest example of judicial tyranny,” he said in an e-mailed statement.

This is judicial tyranny? What’s James Dobson’s problem? How is this any of his business? If Lars and Bob get married, settle down, pay taxes, and seem happy – what’s the problem? This man has too much time on his hands.

Still there are interesting twists to this. Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School, and has a new book, Covering: The Hidden Assault on Our Civil Rights, and in Slate says, in Magisterial Conviction, that the California Supreme Court did more than legalize gay marriage:

On Thursday, by a 4-3 vote of the state Supreme Court, California followed Massachusetts and became the second state in which same-sex couples can tie the knot as tightly as straight couples can. The Massachusetts opinion of 2003 will always have the fame of a first mover. In it, the state high court found that the exclusion of gays from marriage deprived them of both liberty and equality rights protected under the state constitution. The California Supreme Court came to the same conclusion, but in terms that have more legal bite and greater political consequence.

The legal difference between the two opinions lies in the so-called “rational basis” review used by the Massachusetts Court and the “strict scrutiny” deployed by the California Court. In constitutional parlance, these terms describe how closely a court will examine state legislation: will it give the legislature the benefit of the doubt, or not? Rational basis review is so lenient that it almost always results in the validation of state policies (in this sense, the 2003 Massachusetts ruling was an aberration), while strict scrutiny is so stringent that it almost always results in the invalidation of such policies. In other words, the standards supposedly only express how closely the court will look at laws, but looks can kill.

Now, that’s interesting. In Massachusetts they argued something like common sense, while out here they looked at the state constitution, reading the words there – same result, but out here the decision is more bulletproof. If you’re going to argue that, look, your objections are stupid, better to use the law.

Also in Slate, Dahlia Lithwick offers Who You Calling Activist? California’s gay-marriage decision was hardly judicial activism, as it appearing to be, well, judging:

In case you are confused about whose superactivist-hero powers trump here, let me add that California’s governor, Arnold Schwarzenegger - who had vetoed both attempts by the state Legislature to enact bills legalizing same-sex marriage on the grounds that they would override the more than 60 percent of the state’s voters who’d approved 2000 referendum - announced today that he would abide by the state Supreme Court’s decision. “I respect the court’s decision and as governor, I will uphold its ruling,” he said in a statement today. “Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

So - and in the event that you are scoring this along with me from the bleachers - that means the Governator, who was once prepared to thwart the will of the Legislature in order to uphold the will of the people, is not prepared to usurp the prerogative of the courts to thwart the will of the people or the Legislature. Nor will he back any future attempts of the people to usurp the powers of the courts. Which by some lights makes him a seriously activist governor and by others makes him the biggest wuss in history.

But the man is caught between the old world and the post-modern new world, where no one much cares what Lars and Bob do, unless they don’t pay their taxes or play loud music at night – Broadway show tunes no doubt, Cats at full volume.

A good chunk of the people want Lars and Bob to just disappear, but the California Supreme Court gave Arnold an out – they read the constitution and said, look, Lars and Bob can get married if they want. Now Schwarzenegger can step back and say the matter is settled, and everyone can move on. There are other issues – the state is flat broke, as many have noticed.

Lithwick reviews the opinion, the assents, and the dissents – in great detail – and says this:

My own vote today is with the governor, who’s smart enough to realize both that activism is an empty label, and that when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what’s constitutional. Moreover, he seems to understand the difference between judicial activism and judicial action, and the fact that the latter is not something for which a court needs to apologize.

Can we move on now? See Andrew Sullivan:

The California court cited the 1948 Perez v Sharp anti-miscegenation law ruling prominently in its decision today. If you believe that courts should have no role in opposing public opinion in areas of social policy, then the polls at the time make for interesting reading. Ten years after the 1948 ruling, Gallup fund that 94 percent of white Americans opposed inter-racial marriage. As late as 1967, when Loving vs Virginia was decided, a majority opposed it. That remained the case through the 1970s. In fact, the Perez v Sharp ruling was fifty years ahead of public opinion.

Times change – and we move on. Conservative UCLA law professor Eugene Volokh settles the matter:

The opinion is entirely based on claims under the California Constitution, and does not rely on federal constitutional claims. This means that the US Supreme Court cannot review this; and it also means that a state constitutional amendment - which seems likely to be on the ballot this November - could overturn the decision.

Here’s the court’s reasoning, in a nutshell:

1. The California Constitution’s Due Process Clause and Privacy Clause (there’s an explicit one in California) secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. The limit of marriage to opposite-sex couples thus must be reviewed under strict scrutiny (i.e., must be narrowly tailored to a compelling state interest).

2. The California Constitution’s Equal Protection Clause treats sexual orientation as a suspect classification. Any discrimination against gays and lesbians thus must be reviewed under strict scrutiny, and the opposite-sex-only rule is indeed such a discrimination.

3. The opposite-sex-marriage-only rule does not constitute presumptively impermissible sex discrimination, only sexual orientation discrimination.

4. The ban on same-sex marriage can’t pass muster under strict scrutiny (pretty much a foregone conclusion, given how demanding strict scrutiny generally is).

We’ll see what happens with the vote on the constitutional change. There may be enough people who just don’t see a problem that needs fixing.

The other big issue of the day was encapsulated in this – Obama Says Bush Falsely Accused Him of Appeasement:

Barack Obama accused President Bush of “a false political attack” Thursday after Bush warned in Israel against appeasing terrorists - early salvos in a general election campaign that’s already blazing even as the Democratic front-runner tries to sew up his party’s nomination.

Well, the president was in Israel, and on the occasion of its sixtieth anniversary, said this:

“Some seem to believe we should negotiate with terrorists and radicals, as if some ingenious argument will persuade them they have been wrong all along,” the President said to the country’s legislative body, “We have heard this foolish delusion before. As Nazi tanks crossed into Poland in 1939, an American senator declared: ‘Lord, if only I could have talked to Hitler, all of this might have been avoided.’ We have an obligation to call this what it is - the false comfort of appeasement, which has been repeatedly discredited by history.”

You can watch the video of Bush’s comments here, and Obama shot back:

It is sad that President Bush would use a speech to the Knesset on the 60th anniversary of Israel’s independence to launch a false political attack. It is time to turn the page on eight years of policies that have strengthened Iran and failed to secure America or our ally Israel. Instead of tough talk and no action, we need to do what Kennedy, Nixon and Reagan did and use all elements of American power - including tough, principled, and direct diplomacy - to pressure countries like Iran and Syria. George Bush knows that I have never supported engagement with terrorists, and the President’s extraordinary politicization of foreign policy and the politics of fear do nothing to secure the American people or our stalwart ally Israel.

The quote Bush dug up, by the way, came from Senator William Borah’s reaction on hearing that Hitler had invaded Poland, and had thus begun World War II. Borah was a Republican.

McCain did his me-too thing and jumped in, saying that the possibility of talking to Iran’s leadership was simply “unacceptable“:

The belief that somehow communications and positions and willingness to sit down and have serious negotiations need to be done in a face to face fashion as Senator Obama wants to do, which then enhances the prestige of a nation that’s a sponsor of terrorists and is directly responsible for the deaths of brave young Americans, I think is an unacceptable position, and shows that Senator Obama does not have the knowledge, the experience, the background to make the kind of judgments that are necessary to preserve this nation’s security.

Next McCain will say Ronald Reagan was a fool for talking to the Gorbachev in Helsinki, and Nixon an irresponsible fool for travelling to China. Of course it makes no sense.

See Andrew Sullivan with this:

Obama should not, in my view, concede the premise here. He should have a debate about whether in fact it is a good idea for the president of the United States to keep dialogue with our enemies as an option. What you see in McCain’s and Bush’s rhetoric is an idea that diplomacy and statecraft are somehow about conferring legitimacy on people and regimes anathema to us, as opposed to advancing the West’s interests by a variety of methods: force of arms, diplomacy, alliances, etc. They seem wedded to a dramatic rather than pragmatic view of foreign policy.

But the result of Bush-McCain’s position these past seven years has been the empowerment of Iran in the region, a vast increase in Tehran’s pull in Baghdad, and Iran’s rapidly advancing admission to the nuclear club. How could talking actually make things worse than they have gotten under Bush?

What I’m saying is just that these are debatable issues - and McCain’s desire to rule them out of bounds is an attempt to prematurely shut down a debate the American people have every right to have.

You cannot do that when you’re stuck in the past, as Matthew Yglesias explains:

The standard point to make in response to this is still a true one - we refer to this day to the “lessons of Munich” and make a big deal out of Adolf Hitler because that was really unusual whereas to hawks it’s always 1939, every foreigner we don’t like is a new Hitler, and preventive war is always the only solution. Bush and McCain truly are the ideological descendants of the folks who urged Eisenhower to go for “rollback” and who insisted that Ronald Reagan betrayed the true path when he sat down with Gorbachev for arms control talks.

For the Baby Boomers it’s always 1968, and for the hawks it’s always 1939 – and it’s no wonder young folks find it all stupid.

Yglesias adds this:

Meanwhile, Bush continues to fundamentally misunderstand the purpose and nature of diplomacy. The idea of talks isn’t that you marshal convincing arguments and beat your enemies back with force of words. The idea is that it’s sometimes possible to achieve a reconciliation of partially divergent interests. Maybe Iran wants a nuclear weapon in order to deter American attack. And maybe America wants a nuclear-free Iran to help preserve stability in the region. Down one path, we have conflict and the U.S. sanctions and bombs Iran which causes suffering but only delays Iran’s acquisition of a nuclear weapon. But down another path, each side discusses its top priorities and we reach an agreement on verifiable disarmament in the context of security guarantees and a path to normalized relations. Down the road, that gives the U.S. the stability we want and creates more prosperity and security for Iran.

Maybe that won’t work - it wasn’t possible to reconcile interests with Hitler - but that’s what’s on the table. Now if you believe that literally every antagonistic force in the world is exactly like Hitler, then the distinction collapses, but only an idiot would believe that.

Ah the past always drags you under – to the dark bottom of the sea.