Appearing yesterday on ABC’s This Week with George Stephanopoulos, Senator John McCain was asked about his positions on gay rights and abortion (ostensibly so that he could distinguish his views from those of Rudy Giuliani). McCain’s answers were not exactly “straight talk,” (unless we understand “straight” as simply the opposite of “gay.”)
On gay rights, McCain said he was against same-sex marriage, but that he was also against “discrimination.” That’s a dodge, but the same one used by a great many politicians, Republican and Democratic alike. However, Stephanopoulos, to his credit, asked a couple of follow-ups, including why McCain voted for the (failed) Arizona ballot initiative, which would have banned not only same-sex marriage but also civil unions. McCain seemed to say in response that civil unions are unnecessary because same-sex partners can create powers of attorney and the like to simulate the benefits of marriage. (I can’t be sure that this is what he meant to say because, speaking live, McCain was somewhat unclear.) That’s just false. Some of the benefits of marriage or civil union—such as entitlement to medical benefits for partners—cannot be obtained by such unilateral action. Moreover, even if all such benefits could be obtained by ordinary contract, making same-sex couples go through the enormous hassle and expense to get benefits that opposite-sex couples get automatically is itself an obvious form of discrimination. Asked another follow-up, McCain said that while he didn’t think it necessary to amend Title VII specifically to give gays and lesbians protection against workplace discrimination, he nonetheless opposed such discrimination. This is a version of the right’s attempt to cast anti-discrimination law as conferring “special rights,” and it’s either ill-informed or disingenuous. The only kind of protection that Title VII confers is “special” protection against discrimination on the basis of particular categories, such as “race” and “sex.” Unfortunately, in his haste to get to other subjects, Stephanopoulos did not ask the obvious next follow-up: Given the logic of McCain’s claim, shouldn’t the law deny protection against those “specific” forms of discrimination as well?
McCain’s answers on abortion were also contradictory. After declaring that he favored a federal constitutional amendment to prohibit abortion except in a few extreme cases (such as threats to the survival of the mother), McCain went on to say that he hoped the Supreme Court would overturn Roe v. Wade and return the issue to the states, where, McCain declared, it belongs. Huh? If the issue belongs at the state level, why does McCain support a constitutional amendment that would take it away from the states even more effectively than Roe did (albeit in the opposite direction)?
On both of these social issues, it’s not clear which is the more disturbing prospect: That McCain doesn’t realize the self-contradictory nature of his positions or that he does.
9 Comments:
At 10:40 AM,
Adam P. said…
I've said it before, but not on here. On many issues, McCain is not a moderate, but a traditional conservative. He's just been relatively quiet on a lot of those issues because the rest of the GOP has gone running with them.
The idea that Title VII gives "special rights" is always nonsensical to me. However, framing discrimination protection as "special rights", regardless of the group involved, is a way that makes many people more uncomfortable antidiscrimination law. If you describe disability rights as "special rights for the disabled", or religious antidiscrimination laws "special rights for Christians/Jews/Hare Krishnas". The reality is, its not special rights, its the right to equal treatment. It's actually removing the use of a factor for consideration. Public accomodation for disability, or affirmative action, may be a "special right", because it requires a consideration of the trait at issue. But how can the removal of consideraiton of "specialness" be a "special right"?
At 1:05 PM,
T. More said…
Dear Mike,
It strikes me as not exactly contradictory for a politician to say that he at once believes abortion should be left to the states (as our Constitution is currently constructed) and that he would like to see the Constitution made otherwise (in the process that involves the states, rather than the way the Constitution has been purported to address the issue).
Is this filling in some blanks for him? Sure. But at the end of the day believing that the Constitution reserves a power to the states does not require believing that, on the very point, the Constitution ought not to be amended.
Also, it is not a dodge to believe that marriage has a sexual orientation content intrinsically, and therefore not a dodge to think that, while gays should have rights of visitation in hospitals, other kinds of contract rights associated with marriage, and so forth, that the state ought not to redefine marriage. There is not an obviously non-question-begging way to describe all distinction between straights and gays as "discriminatory"--but in the language as we use it McCain told us what he does and does not favor. That he thinks you can reserve marriage to straight people (and ought to) is contestible, but the idea that it's "contradicted" by his commitment to non-discrimination against homosexuals is not quite right.
At 3:31 PM,
David C. said…
Looking to 2008, I can't help wondering how much of a "choice" liberal voters will have on social issues like gay rights and abortion. Many of the freshmen Dems in the Senate and House are either in the center or center-right on these issues, and a prudent Democratic presidential candidate might think that she wouldn't lose that many votes by moving to the center as well (e.g., yes civil unions, no marriage; yes pro-choice, but with tons of hoops like parental consent, waiting periods, no public funding, etc.). If McCain is going to the right, then a Dem probably won't lose too many liberal votes by moving to the center.
If this is the case, it raises in my mind the debate about the propriety of litigation as a means of achieving social goals. I think Tushnet has argued that it often makes more sense, as a strategic matter, for progressives to focus their resources on legislatures, not courts, because the outcome will likely be viewed as more legitimate, lead to less of a political backlash, and have a greater effect on shaping norms. There are also those who question judicial review as a normative matter, and who wish to see democratically elected bodies resolve the tough social issues. I can accept the view that when political goals have the chance of being achieved through the political process, it is preferable for those issues to remain out of courts. But if you are an equal-rights-for-gays, pro-choice-with-minimal-burdens kind of voter, who is representing you in 2008? If you are Lambda Legal or NARAL, would you restrain yourself from looking to the courts? If so, to what end? Assuming Democrats' move to the center reflects the pulse of the country, does that make the NJ and MA supreme courts' rulings more problematic? Or, as courts perceive that the politicians are not on the verge of becoming "enlightened" about these issues, should courts finally declare that their antimajoritarian duties have been triggered, since the political process seems to be stuck? These seem like really difficult issues . . . .
At 3:44 PM,
Derek said…
I have no idea what to make of McCain’s Title VII comments, but as far as his claim that he’s against gay marriage and against discrimination, I think politicians often trade on an ambiguity between discrimination in a neutral sense, and discrimination in a normatively loaded sense. Everyone (even the most bigoted among us) can say with confidence that they are against discrimination in what I’m calling the normative sense since all that means is that they are against *unjustified* discrimination, and what counts as unjustified is indexed to the individual speaking. So all McCain is really saying is that he thinks denying gays and lesbians the right to marry is not unjust. But obviously everyone who is against same-sex marriage will say that.
What’s interesting is that instead of offering some such explanation with respect to civil unions, he chose instead to lie (assuming in all likelihood that he’s not just mistaken about powers of attorney). I wonder if this means that he can’t even justify to himself that the denial of civil unions is just, or if he is simply afraid of alienating part of his constituency.
At 10:42 AM,
Anonymous said…
"I think Tushnet has argued that it often makes more sense, as a strategic matter, for progressives to focus their resources on legislatures, not courts, because the outcome will likely be viewed as more legitimate..."
Tushnet is absolutely right, at least from my perspective. I am very strongly pro-life, and I was happy to see the South Dakota legislature pass its restrictive ban (even if I thought it unnecessarily restrictive). But even so, when the people of South Dakota voted to get rid of the ban, I shrugged my shoulders and thought, "hey, if that's what they want..."
Contrast that with the MA decision, which sparked a massive and continuing wave of state constitution amendments, and an FMA which, although ultimately doomed, came closer to passing the Senate than anyone expected. I can't help but wonder how much of the animus in the abortion debate would never have arisen if the question had been left to political processes.
At 12:50 PM,
Adam P. said…
On the "special rights" front, an anti-discrimination ordinance in Lansing, MI, that prohibits harassment and discrimination based on sexual orientation, gender identity and student and marital status, looks like it is going to pass, despite opposition that it confers "special rights." In what is the most contradictory/confusing statement, one local activist said: "“It’s a slap in the face,” said Kyle Bristow, a Michigan State University student and a member of the group Young Americans for Freedom, a nonpartisan activist group. “We don’t think that people should get special rights - nobody should be treated different.” "
It will be interesting if Conservative legal groups' success in framing affirmative action as "special rights" will next target antidiscrimination law.
At 1:37 PM,
T. More said…
Adam P.,
Let's not be too naive about "special rights." Being a group singled out for special status (i.e., having a cause of action) requiring "mention" among those being treated as equals is a benefit.
When one fails to get tenure, for instance, and is a member of such a group, it is foolhardy not to claim discrimination. Whether there is a case or not, one stands a decent chance of getting a settlement.
So the term "special rights" may not be the most artful, but creating new causes of action is most certainly not a cost free decision, and it is one that will inevitably inspire new litigation and a higher cost of doing business even for the innocent.
That may well be the right thing to do, but it is not doing nothing and it does not contradict a commitment to nondiscrimination to say "but I don't want to single out this or that group for protection."
That lawyers (which you may not be, Adam, so I don't mean to insult you) continually claim they don't understand that that's what's at stake strikes me as unlikely to reflect honest ignorance.
At 3:40 PM,
Adam P. said…
Mr. More, we'll be free to disagree. But what's at stake has nothign to do with the "cost of doing business." The opposition to antidiscrimination law is saying that "gays are sick", not that "gays will file frivolous lawsuits."
Antidiscrimination policies have been adopted by fortune 500 companies protecting LGBT individuals, as well as racial and religious classification. Clearly, the moral imperative to not discriminate has not destroyed their economic worth.
"Not singling out a group for protection" is the same as "singling a group out for discrimination" in this case. Saying you dont want to treat people differently, and therefore want to be able to treat them differently, is a nonsequitur. The opponents to Lansing antidiscrimination law want the ability to fire/not hire/not serve people based on sexual orientation. This is not about preventing litigation, but on protecting the rights to discriminate- which has no moral authority.
At 4:47 PM,
T. More said…
I thought we were talking about John McCain, who certainly did not say gays were sick or anything of the sort.
And I thought we were talking about logical consistency about certain public policy positions.
Apparently you took something I wrote above to be defending positions about which I did not write, and which I do not hold. I did not defend those positions, and I do not.
My argument was not that adopting these policies is economically or otherwise indefensible, and it certainly was not that adopting them would bring economic ruin. So I'm happy to agree with you that adopting these policies would not bring economic ruin. As to their prudence either economically or morally, I'm not as willing to defer to the Fortune 500 on those grounds--companies make lots of bad economic choices for all sorts of reasons, moral ones and immmoral ones.
One suspects that in other contexts you are less deferential to the Fortune 500 than here. I used to be a lobbyist for a Fortune 100 company, and I'm not very deferential to them in either sphere--the economic or the moral.
Saying you don't want to treat people differently but not also saying that you don't want to give them a remedy at law is indeed consistent logically, and defensible reasonably. I presume there are lots of things you want to do as a matter of principle but do not want to invite the state to help you enforce. Perhaps you are much more of a social conservative than I in this regard, and want the government legislating all of your moral commitments. I am not in favor of that use of the coercive power of the state.
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