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Sunday, November 16, 2008

Constitution-talk at the March

I went out yesterday to exercise my First Amendment rights at the L.A. version of the nationwide marches for marriage equality.   If you haven't attended a protest march in a while it's something you ought to consider doing.  My sense is that we do in fact bowl alone a lot more nowadays, and that goes for political expression, too.  Physically gathering with like-minded people to express myself was quite a rush.  The crowds on the subway were boisterous and friendly, the 20something lesbian punk couple next to us squeezed into one seat so my husband and I could sit (I think they had ulterior motives, but I'll give them the benefit of the doubt), and a brass band (!) was playing as they were getting off another train when we arrived at the City Hall stop.   The rally and march were similarly upbeat: the speakers were generally on point and not long-winded, everyone seemed to be taking care of everyone else, and the kids that were brought along were all adorable.

I was also struck by the signs.  A lot of people carried the "No on 8" signs that were all over town during the campaign.  But others created their own -- sometimes witty, sometimes poignant.  As a law professor, though, I was most struck by the signs that spoke constitutional language.  Of course, "equal rights" or a variation thereof was a main theme.  But one sign had a pretty long quotation from the Gettysburg Address, another had the "we hold these truths to be self-evident" language from the Declaration, others made observations about equal liability for taxes being combined with unequal status, and many of them had some variation of "separation of church and state."

I'm not here to praise any of these messages (though my earlier posts this month and before, plus my presence at the march, should make it clear basically where I stand).  I'm simply saying that I'm impressed and, frankly, grateful, that so many of my fellow citizens -- not lawyers, not academics -- are able to appropriate constitutional language in political discourse.  The popular constitutionalists are right to worry about the atrophying of people's constitutional awareness and of their sense of responsibility for safeguarding our constitutional rights.  But based on my experience yesterday people know these terms and they're comfortable using them.  Sure, they were just slogans on handmade signs.  No doubt they heard and got cues from more "sophisticated" advocates arguing in the media.   And of course most of them couldn't do the intricate analysis a court does when deciding a constitutional case.  But they get the basic ideas, and yesterday they took responsibility for them.  And that's pretty cool

Posted by Bill Araiza on November 16, 2008 at 02:50 PM in Constitutional thoughts | Permalink


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I don't have any particular disagreement with Larry. I think the question of judicial victories versus legislative ones is a massive one that can only be answered as applied to a given set of facts, and I don't read his comment to suggest otherwise. And at the very least, I think he's right that as an empirical matter judicial victories do tend to be less secure -- though the interaction between judicial and legislative action strikes me as really complex (witness the argument that the real school desegregation action happened after HEW started threatening cut-offs of school funding, an action that in some way was ultimately traceable back to Brown). But I think he's correct that the litigation (rather than legislative) strategy meant that California gays and lesbians really weren't asked to fight for this right until we were put in the position of having to defend a court decision that I'm sure struck even many sympathetic people as aggressive. As for his observations about the Prop. 8 campaign itself I suppose everyone has his or her own opinion. I'm not necessarily disagreeing with his assessment of the two campaigns' message; I do think the "don't show gay couples" approach of the No-on-8 campaign was, in retrospect, a mistake. On the other hand, some of the non-discrimination-themed ads seemed powerful. Clearly, though, not powerful enough to convince a majority.

Posted by: Bill Araiza | Nov 17, 2008 9:02:19 PM

Interesting that these kind of mass demonstrations in support of single sex marriage did not occur during the campaign, when they could have affected the outcome. Constitutional rhetoric is great, but when it leads to judicial but not political victories, perhaps those victories are unlikely to be secure. The story of Proposition 8, to my eye, reflects the problems that follow when people are given rights by the courts, rather than struggling for them through the political process. During the campaign, it was the advocates of Proposition 8 who seem to have understood the need for organizing and developing a potent political message with widespread appeal. The opponents, not so much.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 16, 2008 3:18:57 PM

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