Emerging Consensus on Gay Marriage

Marriage Equality USA

Assuming that the world survives this coming December 21, the United States Supreme Court is expected to rule on two cases in June which could result in the nation-wide legalization of gay marriage.

I cannot forecast with certainty how the court will decide, but supposing for a moment that it rules in favour of marriage equality, the short-term results are easy to predict: conservative commentators across the country will complain of judicial activism, despite having in many cases urged precisely such an overreach one short year before when Obamacare hung in the balance. Right on cue, public support for same-sex marriage rights — steadily on the rise for years — will drop by approximately ten points.

But despite this frothy chorus of apocalyptic whining (maybe that’s what the Mayans were referring to!), the homophobic naysayers will not succeed in preventing a single same-sex couple from exchanging vows. The US Constitution is the law of the land, and the Supreme Court has final say over its interpretation. Gay marriage, assuming a favourable ruling, will be here to stay.

A more interesting topic for consideration, however, is how American attitudes to marriage equality will evolve over the long-term. Will the coming Supreme Court decision be more Brown v. Board of Education or Roe v. Wade? The former ruling from the 1950s, which desegregated public schools and marked a major victory for the civil rights movement, was incredibly controversial at the time, but is now almost unanimously recalled as a just and necessary decision. Roe v. Wade, by contrast, the 1970s ruling that legalized abortion across the country, has done nothing to settle the debate over a woman’s right to choose. So is gay marriage more like desegregation or abortion?

I believe it is more like desegregation. Marriage equality can very easily be framed as a civil rights issue, since after all it is about guaranteeing equal rights for a persecuted minority. On the subject of abortion, however, the applicability of equality is muddied by the fact that some people demand rights for women while others demand them for fetuses. Although I personally count myself in the former category, and believe that any depiction of the pro-life community as a modern-day civil rights movement for the unborn rests on a fundamental confusion, I can at least understand how such a confusion could come about and how much work it will take to clear it up. Gay marriage is far more clear-cut, and I see something approaching a consensus emerging over time.

But might it actually be something else that determines the public’s attitudes on social issues? Might it instead be the powerful influence of religious conservatives? If so, gay marriage could be doomed to share the stage with abortion as a highly symbolic subject of perpetual debate whose status is never secured.

Fortunately, I do not think this is likely. Take a look at Canada. We have had same-sex marriage for nearly a decade now and unrestricted abortion rights for a quarter century. While the latter is not nearly as much of a hot issue here as in the United States (perhaps owing to the reduced influence of evangelical Christianity), occasional attempts to chip away at a woman’s right to choose still make their way into Parliament. But marriage equality has not been up for serious contention in years, and that appears to be just how the public likes it.

This does not mean that homophobia has completely disappeared from Canada any more than racism disappeared from America within a decade of Brown v. Board of Education. But after a little time passed and the Canadian public saw that the institution of heterosexual marriage was not under threat after all (at least not from homosexuals), gay marriage quickly lost its status as boogeyman to be exploited by reactionary politicians.

If the United States Supreme Court comes to a similarly enlightened conclusion a few months down the road, I think the American public will look back on the present day ten years from now and wonder what all the fuss was about.

An Open Letter to Stephen Harper Regarding Senate Reform

Senate Foyer Ceiling

Dear Prime Minister Stephen Harper:

I am writing today in response to reports that you will seek a Supreme Court reference on the constitutionality of your proposals for Senate reform. In a way, I can understand this. You would like clarity on a politically tricky issue, one that would otherwise almost inevitably face judicial challenge.

Personally, I do not believe the court will fully endorse all features of your plan, as the Constitution Act, 1982 is quite clear regarding the constitutional amendment requirements for such fundamental changes to the upper house. But either way, both you and I know that pursuing Senate reform by statute is not a long-term solution. Any future government will be able to repeal your legislation without difficulty.

What Canada really needs, to settle the decades-long debate once and for all, is a national referendum. Not one in which the issue of Senate reform is muddied by other matters, as in the Charlottetown Accord, but a single stand-alone nationwide vote on the future of the Red Chamber. Voters should be given a choice between three possibilities: 1) an appointed Senate, 2) an elected Senate, and — my personal favourite (see here and here for my reasoning) — 3) abolition of the Senate. The ballot would also need to be preferential to make sure the winner has majority support.

Once the dust from the referendum has settled and one of these three options has become legitimized by popular endorsement, it should then become easier to get seven provincial governments representing half the country’s population (as required by the Constitution Act, 1982) to, if necessary, back a constitutional amendment. Will the provinces inevitably put aside their differences and come to an agreement after such an exercise? There is no guarantee. But this at least represents a better shot at a permanent resolution to the Senate reform debate than your Supreme Court reference case.

And what if voters settle on something other than your preferred route of an elected Senate? Am I being naive in asking you to put your own preferred outcome at risk? Only you can answer that question, Mr. Harper. All I can do is urge you to recognize that what unites all proposals for Senate reform is the desire to deepen democracy in our country. So please, respect the people — the demos — in their right to decide for themselves what institutions are most appropriate for the expression of their will. This is the only way of dealing with the Senate that truly embraces democracy.

Sincerely,

David Taub Bancroft

Assisted Suicide, Discrimination, and the Constitution

The Death of Socrates

Suicide is a difficult case. I do not believe that people, under most circumstances, have a moral right to unilaterally kill themselves. An individual’s life is not the sole property of the individual; it belongs also to her or his loved ones, to all who are deeply affected by such an irreversible decision.

But does that mean that suicide ought to be illegal? The state, with one-size-fits-all statutes at its disposal, is not well-suited to govern over such a heavily context-dependent arena. To do so would set a disturbing precedent of public involvement in a profoundly personal matter. This debate is largely moot here in Canada where, contrary to what many believe, there is no law preventing a person from taking her or his life. And despite my misgivings, that is probably for the best.

What is prohibited in Canada, curiously, is assisted suicide — or at least, it was.

In a case brought by Gloria Taylor, who suffers from ALS and wants the right to die at a time of her own choosing, the Supreme Court of British Columbia yesterday struck down the federal ban on physician-assisted suicide. Justice Lynn Smith gave Parliament one year to draft new legislation on the grounds that the current ban violates the Charter of Rights and Freedoms, not surprisingly citing the Section 7 guarantee of the right to life and liberty.

Interestingly, Smith also cites the equality rights of Section 15. The issue of assisted suicide is relevant not to those able-bodied individuals who are tragically inclined to overreact to temporary setbacks, but to the sick and the physically disabled — those who spend their lives in agony. Often in consultation with their loved ones, people in these conditions may come to the conclusion that there is only one way out — and nobody can rightfully judge them for doing so. Unfortunately, such people are frequently incapable of carrying out their free and informed decisions without a doctor’s help. For this reason, says Smith, to ban assisted suicide is to discriminate against the disabled. Furthermore, it may even perversely encourage those with deteriorating conditions to rush their suicides while they still have the ability.

A person’s death is never something to celebrate, but we should not go to despotic lengths to prevent it from coming about. Under some circumstances, it can be necessary. This does not mean that all or even most suicides are okay. But to make only assisted suicides illegal is, absurdly, to criminalize those suicides which, with the right safeguards in place, are the most morally defensible. Justice Smith has issued a ruling of compassion and respect for individual freedom, and I hope that the higher courts see things the same way on appeal.

What Obama Should Say If His Health Bill Loses in Court

The Patient Protection and Affordable Care Act, President Barack Obama’s signature health care reform bill, had its three days in the Supreme Court last week, and by most accounts it did not go very well. Nothing is certain until the Court delivers its ruling in June. But if it does declare the bill unconstitutional, this is what — in my yes-we-canniest of dreams — I would like to hear the President say:

My fellow Americans,

The Supreme Court issued a decision today that I don’t think was right. It declared that Congress does not have the Constitutional authority to compel Americans to purchase health insurance.

I personally believe that this “individual mandate” was a crucial part of the health care law. It’s not there just because I think it’s good for Americans, just because Washington fat cats like me know what’s best for everyone. It’s there because health care reform requires insurance companies to provide coverage to applicants with pre-existing conditions. Without the individual mandate, people would only bother to buy insurance once they got sick, insurance companies would go out of business, and the entire industry would collapse. The individual mandate was never about big-government paternalism; it was about protecting private enterprise.

But you’ve all heard these arguments before. I won’t repeat them. Nor will I reprise the regrettable performance I gave during the emotional aftermath of the hearings last spring, and complain of judicial activism just like conservatives do whenever they lose a case. The Supreme Court justices are good people who were just doing their jobs.

What I will do in the face of the legal lemons I have been handed is make lemonade. I will propose an alternative foundation for universal health coverage. And to my political opponents who have accused me throughout my Presidency of orchestrating a government takeover of health care, I’ve got news for you:

You ain’t seen nothing yet!

If there is any sector in our economy in desperate need of government intrusion, it is those profiteers of death, those deniers of coverage to the sick and the poor, in the health insurance industry. So here today, I am announcing that I will stake my entire re-election campaign on the pledge to enact a single-payer health care system for America.

I have always preferred single-payer to the compromise on a compromise we actually wound up with. Also known as “Medicare for all,” it would be funded entirely through taxation, and would therefore not require the individual purchase of insurance policies. As in most other industrialized democracies, health coverage would be automatic, rendering the mandate unnecessary and sidestepping any Constitutional objections.

Of course, Republicans will scream “socialism,” just like they always do. But before you get swept up in their vintage red-baiting rhetoric, please consider what kind of health care plans they will offer up instead. I can tell you right now what Republicans will give you, whether in the House, the Senate, or the Oval Office: more of the status quo. A country in which, despite its riches, 50 million people lack health insurance, and tens of millions more are inadequately covered; in which people are forced into bankruptcy — or worse, into early graves — by medical bills; in which your friends, your relatives, your neighbours, your co-workers, live one unlucky diagnosis away from destitution.

If a drop of socialism in our capitalistic sea is what it takes to right this wrong, then slap a beard on my face and call me Fidel. Some things are more important than political labels. I believe that most of you understand this, and if the Republicans don’t, then it is up to you to teach them on November 6.

Thank you. And may God bless . . .

Et cetera, et cetera.

The Alternative Norquist Pledge

Citizens United Carpet Bombing Democracy - Cartoon

It has been over two years since the US Supreme Court’s Citizens United v. Federal Election Commission ruling struck down government restrictions on political spending by corporations and unions. A crafty syllogism lies at the heart of the decision’s rationale:

  • Corporations = people.
  • Money = speech.
  • Therefore, campaign finance reform = violation of the First Amendment.

As fallout, we are now witness to the proliferation of super PACs — those well-financed, secretive, unaccountable organizations that can raise unlimited amounts of cash to help or hinder politicians of their choosing. This growing confluence of money and politics has brought the tone of political debate to a new low, and undermined what little pretense remains of popular control over the democratic process.

So what are progressives to do?

Fantastic work is being done by communities in Vermont, as well as by politicians such as Senator Bernie Sanders, to push for a constitutional amendment abolishing corporate personhood. But amending the US Constitution is an almost prohibitively difficult thing to accomplish. There must be a backup plan.

It is here that progressives can learn a thing or two from Grover Norquist, president of Americans for Tax Reform and architect of the euphemistically named Taxpayer Protection Pledge. Hundreds of American politicians at all levels of government have taken this pledge to never under any circumstances raise taxes — not because it makes their job of governing easier, but because it represents something that, for better or for worse, many voters want.

Norquist and his ideological brethren have successfully achieved for their anti-tax zealotry a cultural hegemony that ought to be the envy of the Left. This hegemony, in all its principled rigidity and uncompromising absolutism, is precisely what needs to be replicated for the cause of campaign finance reform.

Thus I propose (in comparably euphemistic language) the Democracy Protection Pledge, or, informally, the Alternative Norquist Pledge. (In my research for this post, I discovered that a similar — though not identical — proposal was made within Occupy Springfield, Il.) All politicians who wish to brandish this progressive seal of approval must, in writing, forswear all super PAC cooperation, refuse all super PAC assistance, and promise to support a constitutional amendment abolishing corporate personhood.

Progressives could try to use this pledge to apply just as much pressure on politicians as Norquist has succeeded in doing with his pledge, and to make compliance just as politically advantageous. Will it be an uphill battle? Of course. When has it ever been otherwise for the Left? But what hangs in the balance is the integrity of one of the world’s oldest democracies.

So I encourage you, American lefties, indulge your Norquist envy!

Electoral Reform — the Wrong Way

Distributing copies of the Canadian Charter of...

The Quebec-based group l’Association pour la revendication des droits démocratiques is nearing the end of the legal battle it started in 2004.  After early losses in the lower courts, it is taking its case against Quebec’s (and by implication Canada’s) first-past-the-post electoral system to the nation’s Supreme Court, with the backing of Fair Vote Canada and Green leader Elizabeth May.  It will argue, with some justification, that first-past-the-post violates the “democratic rights” and “equality rights” provisions (sections 3 and 15) of Canada’s Charter of Rights and Freedoms.

I am reluctant to admit this — both as a strong supporter of proportional representation and as a Green Party member — but I think this is the wrong approach.  While it is true that there is evidence in some opinion polls of vague support for electoral reform in Canada, every time a concrete question is placed on a referendum ballot, proportional voting systems seem to lose their popularity.  I understand that this is frustrating, but it would be unfair for proportional representation advocates, having failed to convince the public, to turn around and sneak their changes in through the judicial back door.  Societies have a right to any electoral system of their choosing, and at the very least, ours has not yet made up its mind.

In 2003, a small number of Quebec sovereigntists proposed the abandonment of their longstanding call for a referendum on independence, preferring instead to read the election of a Parti Quebecois majority government as a sufficient mandate for secession.  The mainstream of the sovereignty movement swiftly rejected this idea, understanding that the principle of independence by referendum had always been at its heart.  There is something admirable in this recognition that there is a right way to go about achieving change, and a wrong way.

I never thought I’d say this, but electoral reformers could learn a thing or two from Quebec separatists.