To get a change in policy, one must shift the window of what is feasible politically:
Since commonly held ideas, attitudes and presumptions frame what is politically possible and create the “window,” a change in the opinions held by politicians and the people in general will shift it. Move the window of what is politically possible and those policies previously impractical can become the next great popular and legislative rage.
Sen. Kennedy, who sits on the Judiciary Committee, shows how the judicial confirmation process has been badly damaged in the Bush administration, with candidates’ opaqueness and promises of fair-mindedness being no more than empty promises abandoned for partisan agendas once on the bench:
[T]he careful, bipartisan [judicial confirmation] process of years past — like so many checks and balances rooted in our Constitution — has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist’s embrace of the administration’s political and ideological agenda.
Now that the votes are in from their first term, we can see plainly the agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.
He goes on to discuss how the nomination process should be reformed:
The discussion should start with a few truths. First, any qualified nominee to the Supreme Court will have spent many years thinking about legal issues. We should require that nominees share that thinking with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases. In particular, the Senate should have the same access to the nominee’s writings as the administration.
Apparently, justices in Washington State are elected, which brings in an interesting factor into an analysis of the decision. How much of it was election-year pandering?
Dan Savage had much earlier scheduled an interview with the Chief Justice for the The Stranger‘s endorsement issue. It just so happened that the decision was handed down the day before. You can hear the Stranger Election Control Board grilling Chief Justice Alexander here.
I propose we lobby Congress to submit the Equal Marriage Amendment for consideration by the states:
Section 1. The right of two individuals to enter into or dissolve a civil marriage, with all its attendant rights and responsibilites, shall not be denied or abridged on account of either participant’s sex.
Section 2. This article shall not be construed as obliging private institutions or faiths to recognize any marriages.
Section 3. The Congress shall have power to enforce this article by appropriate legislation.
Here’s the story from Seattle P-I
Among other things, the majority denies equal protection claims and finds that the legislature may have rational grounds for DOMA– such as procreation. What a bunch of BS.
Sigh.
Here’s Justice Bridge’s dissent:
What we are called upon to do here is address the availability of the civil contract of marriage—the only characterization of the issue presented that permits governmental intrusion into what is otherwise a personal, private relationship between two people. The State’s intrusion is governed by the articles of our constitution. What we ought not to address is marriage as the sacrament or religious rite—an area into which the State is not entitled to intrude at all and which is governed by articles of faith. What we have not done is engage in the kind of critical analysis the makers of our constitution contemplated when interpreting the limits on governmental intrusion into private civil affairs; what we have done is permit the religious and moral strains of the Defense of Marriage Act (DOMA) to justify the State’s intrusion. As succinctly put by amici the Libertarian Party of Washington State and the Log Cabin Republicans of Washington: “To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment.” Amicus Curiae Br. of the Libertarian Party of Washington State et al. at 11. After all, we permit civil divorce though many religions prohibit it—why such fierce protection of marriage at its beginning but not its end?
He goes on to state:
Whatever bases the plurality and Justice J.M. Johnson’s concurrence assert to support the DOMA, the legislative history of the law reveals that it stems, in substantial part, from thinly-veiled animosity against a minority group, animosity that is rooted in moral and religious objections to same-sex relationships. Its very title asserts as much—“defense” of marriage—“defense” from what? Against whom? The DOMA ought to be recognized for the discriminatory enactment that it is, and rejected as such.
To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA…
However, religious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so. For example, historically many religions have strictly forbidden marriage outside of the denomination, but these churches could not prevent interdenominational civil marriages because “marriage was [ultimately] a state matter, not subject to . . . religious restrictions.” CHAUNCEY, supra, at 80-81 (citing The Roman Catholic Code of Canon Law (1918) and statements issued by protestant denominations forbidding marriage to Catholics). This court cannot endorse the use of state law to impose religious sensibilities or religiously-based moral codes on others’ most intimate life decisions. Lawrence, 539 U.S. at 571; see also CHAUNCEY, supra, at 85-86. The DOMA reflects a religious viewpoint; religious doctrine should not govern state regulation of civil marriage.
Anyway, this dissent is worth reading carefully.
