May 17, 2005,
Inspired by Monty Python's dead-parrot routine, on December 3, 2002, this is how Andrew Sullivan characterized my argument that gay marriage in Massachusetts could be imposed on the country as a whole:
The notion that marriage in one state means marriage in every state is false. It is untrue. It is not rooted in fact. It is an unfact. It's veracity is pushing up daisies. Next time you read or hear someone making such an argument, make a mental note that he or she is either ignorant or happy to lie to advance his or her political agenda.
On May 12, 2005, Eugene Volokh had this to say about the federal court decision striking down Nebraska's marriage amendment:
...if the judge is right, then states would indeed be required to recognize same-sex marriage....So this isn't just a battle over state constitutional amendments, and what voters can do and what they must leave to the state legislature. The court's decision, if upheld, would be a Massachusetts Goodridge (or at least its Vermont civil union cousin, Baker) for the whole nation.
Apparently, Andrew Sullivan thinks Eugene Volokh is either ignorant, or happy to lie to advance his political agenda.
Clearly, Volokh has raised as a serious possibility exactly what Sullivan assured us could never happen. If upheld, says Volokh, the Nebraska decision would either impose full gay marriage, or at least Vermont-style civil unions, on the entire country. Goodridge has brought us to this moment. To protect themselves from a Goodridge-style decision, the people of Nebraska passed a state constitutional amendment. And now a federal court has not only voided Nebraska's marriage amendment, its decision could soon become a Goodridge for the entire country.
In a post responding to my take on the Nebraska decision, Sullivan now talks about Volokh's argument as though he agrees with it even as he ignores the substance of what Volokh actually says. The fact is, Volokh's analysis contradicts what Sullivan has been claiming for years. Volokh's analysis also cuts against the Washington Post editorial that Sullivan apparently endorses. Even as his long-standing political-legal predictions are proven wrong, Sullivan clings to the claim that the Defense of Marriage Act will suffice to prevent activist judges from imposing same-sex marriage on the nation. Yet it's clear that the Nebraska case or another like it could easily lead to the end of DOMA and the imposition of same-sex marriage on the entire country.
While we're at it, let's have a look at another excerpt from Sullivan's 2002 exchange with me:
...as a matter of law and politics, it's very, very unlikely that such a thing [a Supreme Court ruling on the grounds of equal protection, invalidating all bans on same-sex marriage] will happen any time in the foreseeable future. This Court is still upholding the constitutionality of sodomy laws, for goodness' sake. It is a very long way from according a homosexual orientation the same constitutional protections as race and gender. Yet this distant and unrelated possibility is now the central reason for Kurtz's panicked conviction that we have to amend the U.S. constitution now...
Sullivan posted that on December 10, 2002. Lawrence v Texas was decided on June 26, 2003. It was a sweeping 6-3 ruling that went way beyond simply voiding sodomy laws. Justice Scalia's famous dissent in Lawrence warned that the logic of that decision could easily force same-sex marriage on the nation. Then, on November 18, 2003, the Goodridge decision drew directly on the precedent of Lawrence. And now, in May of 2005, Volokh argues that the Nebraska decision, if upheld, would be "a Goodridge for the whole nation." What Sullivan treated as a distant possibility is now in less than three years a looming reality. How credible do Sullivan's assurances look today?
From my extended exchange with Sullivan in 2002, I think the last piece, "The Real Issue," is best. If you're inclined to go back, this piece summarizes my legal-political argument with Sullivan, and gets at the deeper questions as well. Two-and-a-half years later, I'm happy to let readers judge for themselves which of us was closer to the mark.