Election postmortem

As anyone with a television, newspaper or Internet connection knows, Republicans have captured governorships in Virginia and New Jersey, for the first time since the civil war, a progressive candidate has beaten the conservative in the 23rd congressional district of New York, and gay marriage was stopped by referendum in Maine (barely), while medical marijuana was enacted there.

In Virginia, the election was not even close as newly registered young and African American voters stayed home. Even though, at the last minute, the Catholic Church engaged in a full-court press on values issues, primarily abortion, this was not an issue that was highlighted by the winning candidate. Indeed, the Governor of any state has little to say about abortion, since Roe v. Wade quite correctly bars state action on this issue beyond regulating late term abortions (because who is and who is covered under law is quite properly a federal civil rights question under the 14th Amendment and because until someone is given legal recognition, their interests cannot constitutionally be considered by the state - which is why women have a right to privacy in obtaining abortion services in the first trimester until and unless Congress moves the date). Sadly, the voters that stayed home and the Catholics who voted for the Governor-elect will find that his economic policies will not benefit either them or the unborn.

In New Jersey, the result was surprisingly close, given the outgoing Governor's unpopularity. In both cases, the race was not decided on hot button social issues, but rather on the competence of the opponent. There was not victory for values based conservatism in either race. Indeed, in the only race where ideology and values were the focus of the race, the conservative candidate was beaten in a race which should have been an easy Republican victory. While that says as much about the nomination process as the race, it still provides a lesson on what the Republican Party needs to do to stay alive. From what I have heard about conservative preparations for 2010, however, this lesson seems lost on them. In the short run, what NY-23 means is another Democratic vote for health care. It almost makes me hope that this one vote is the margin of victory in the House of Representatives.

The fact that the election was close is actually quite telling. Five years ago, when citizen votes against gay marriage were more common and were largely a reaction to actions by the Mayor of San Francisco when he took constitutional interpretation into his own hands by performing gay weddings, the margins were much bigger. They are steadily growing smaller and as older, more conservative voters "age out," will likely go the other way.

More importantly, they show why it is not good for governments to put individual rights up to a vote. Luckily, the federal constitution can be used - and has been used - to overturn such folly - as it did when Colorado voters passed a constitutional amendment prohibiting gay rights legislation. This amendment was overturned by the federal courts because it was precipitated by malice towards gays and lesbians (such malice is hardly a Catholic virtue - indeed there is nothing in canon law which mandates or even allows legal discrimination against gays and lesbians). These precedents are being used in an effort to overturn California's Proposition 8 and I have every confidence that this challenge will succeed and be applied to all 31 instances where state constitutions were used to define marriage as being between a man and a woman. As I have said elsewhere, this misquote of scripture originates in the Genesis myth (and Catholics do now believe the story is mythical, not factual) and was used by Jesus not to condemn gay marriage but to affirm the equality of women within marriage.

When I was in marriage preparation with my soon to be wife, we were taught that neither the Priest nor the state make the marriage, rather the sacrament is performed by the two people getting married. It is only recognized by the state and witnessed by the Priest (and congregation). I was taught the same thing in Catholic High School. Aside from bigotry and a quaint (and unscientific) view of sexuality by a celibate clergy, I see no reason why this teaching does not apply equally to homosexuals. Indeed, if we wish homosexuals to listen to the Church regarding spiritual matters, we must listen to them when they inform us of how their sexuality occurs to them - especially if we are counseling monogamy. Telling young people that they are disordered leads many of them to suicide and equating promiscuous and monogamous sex leads some to situations where they acquire HIV. To a very real extent, our blood is as much on our hands as when society allows abortion (if not more so).

When (not if) the federal courts mandate gay marriage, I would hope that the Church celebrates them as a comfort to the families, since weddings (unlike marriages) are about the families letting go of their child (or parent) in favor of the new spouse. It is better that this letting go happen in the protective embrace of the Church, which can then use the occasion to counsel monogamy and fidelity in these relationships (which would be countercultural). Opting for gay marriage as a lesser thing actually damages marriage as a concept more than celebrating marriages would. Indeed, domestic partnership is not a good substitute for the Sacrament of Matrimony.

The Maine election also shows that, even if the public does not agree, the elected legislators in "blue states" are coming around to marriage equality. This has implications for when marriage restrictions are overturned by the federal courts. With Nancy Pelosi of San Francisco as Speaker of the House, I cannot foresee any amount of backlash that will lead to a congressionally initiated constitutional amendment overturning such a ruling. Such an amendment could only come by constitutional conventions called by the states. If blue state assemblies cannot be counted on to ratify such an amendment (or even call the convention), there is no stopping marriage equality.

This issue was also important in the Attorney General's race in Virginia. I still find it troubling that the Attorney General-elect has vowed to fight for the obviously federally unconstitutional amendment to the Virginia Constitution which prohibits legal arrangements which simulate marriage, since he must vow to uphold the federal constitution. Of course, I think the closest he will be able to get to such a defense is joining in an Amicus Curie brief when this issue finally gets to the Supreme Court. I doubt he will even be able to write it (although from what I have heard of his legal skills, I hope he is the one to write it since I do not wish him success in such an endeavor).

Lastly, the easy passage of medical marijuana in Maine is also telling on the general prospects for conservatism. With the sexual revolution, marijuana use was a harbinger of the 60s (which actually began in 1959 in terms of cultural transformation according to a new book on the subject). If conservatism were really on the march, this effort would have failed. As opponents of such measures rightly point out, this is a toehold on general legalization and the end of their war on drug users generally. Just thought I would point that out to take some of the wind out of their sails after last night.