December 04, 2002
Newman v. Heldman

Nathan Newman and Sam Heldman have a good debate going about whether or not the Supreme Court's review of the Texas sodomy law is a boon or a curse for progressives. Start with Nathan's opening statement that progressives are better off if the Supremes refuse to overturn Bowers v. Hardwick, then read Sam's reply and Nathan's reprise.

The one point I wish to address is Sam's third item:

It will be a long long time before gay rights take hold, legislatively, in a place like Alabama. And telling a potential litigant there that he should forego filing a cert petition to establish a simple and basic right because it might, if successful, have an indirect negative impact on the ability of other folks in other states to get even further rights -- that's a hard sell to the guy in Alabama.

To which Nathan responds:

It's worth noting that even in Texas, gay rights activists are winning. Check out this legislative page from OutTexas, which details victories on hate crimes and strong movement on ending educational discrimination against gays and, notably, in moving to repeal the Texas sodomy law.

Nathan is misreading the legislative page he cites. It speaks of successfully bottling up Rep. Warren Chisum's anti-gay-marriage legislation in past years, but as I've noted before, the odds are excellent that Chisum's bill will pass this time around, as the Democrats no longer control the state Senate and thus can't block this bill as they have before. It really is the case that for some people, you're only an equal in some states and not in others.

That's not to say that Nathan's larger point isn't valid. It is:

Progressives need to regain the majoritarian voice they once had in mobilizing for justice as a matter of popular will. The rhetoric of rights and judicial process is a crabbed, elitist turn for progressive thought in the last generation that is not only antidemocratic but ultimately wrongheaded and ineffective.

In the long run and even the middle run, any victories not won based on majority power are useless and likely to be short-lived. So forget judicial activism or putting ones hopes in the Rehnquist Court as a savior.

While I don't fully agree with Nathan's pessimism regarding the judiciary, I do agree that battles like this are ultimately won and lost in public, not in the courthouse.

Posted by Charles Kuffner on December 04, 2002 to Legal matters | TrackBack