I stopped reading the New York Times op-ed page after they put it behind a paywall. It turned out that I could get smart economic commentary from Brad Delong without having to pay the fee to get Paul Krugman. I could get a diverse range of voices by reading other blogs, and never had to contend with Maureen Dowd’s asinine gossipy commentary, David Brooks’ simplistic conservatism, or the rotating cast of losers brought in to fill the void left by William Safire (Kristol and Douthat).
So it’s been interesting to note the enthusiasm for a piece in Monday’s Times, an essay by Thomas Geoghegan about the unconstitutionality of the filibuster. It’s a good argument, but not altogether satisfactory. He seems to argue that a supermajority requirement might be constitutional if it were only applied occasionally, but that the current practice of requiring sixty votes before taking literally any action at all is suspect. I think it’s bad policy, and should be remedied by the Senate using their constitutional powers to set their own rules, but we don’t want the Supreme Court deciding how the Legislative Branch operates.
The other noteworthy aspect of Monday’s Op-Ed pages was what wasn’t picked up. Ed Meese, who has laid low since serving as Ronald Reagan’s Attorney General, penned an utterly predictable piece about why gay marriage is evil. Residents of San Francisco, Meese seems to argue, are not entitled to have their suits taken seriously because the city’s support for equal rights gives lesbians and gays “quite a home-court advantage.”
It is, Meese adds, “disquieting” that opponents of civil rights will have their bigotry exposed on video recordings. “This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition.” No mention made, of course, of the physical violence inflicted on gay couples across the country. Nor the harm inflicted by restricting the civil rights of thousands of Californians.
Furthermore, Meese argues disingenuously:
Judge Walker’s decisions have been surprising because they differ from those of other judges who have previously scrutinized marriage laws — in Iowa, Hawaii, Massachusetts, New Jersey and elsewhere in California, for example. In those instances, the courts have decided legal challenges to state marriage laws based on legislative history, scholarly articles and testimony by social scientists and other experts. They have, in some cases, looked for evidence of legislative intent in the statements published in official voter information pamphlets.
But in this case, Judge Walker has ruled that things like TV advertisements, press releases and campaign workers’ statements are also relevant evidence of what the voters intended.
Anyone familiar with the relevant caselaw would knows that the entire public is the legislature for a ballot initiative, and therefore advertisements, editorials, letters to the editor, and other public statements are part of the legislative history, a history Meese acknowledges can and should be examined.
In short, Meese’s piece is trite, predictable, dishonest, and demonstrably wrong. Why would any serious outlet for opinion and commentary run such a piece?
Compare Meese’s pointless exercise to the nuanced and surprising essay by Ted Olson, one of two lawyers representing gay couples desiring the freedom to marry. Writing in Newsweek, the lawyer who argued for George W. Bush in the indefensible Bush v. Gore, and later served as Bush’s Solicitor General, presents “The Conservative Case for Gay Marriage.” He writes that his conservative critics “do not make sense,” since marriage is an institution which promotes what (he considers to be) conservative values. On top of that, Olson argues, “Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights.” He draws a sharp analogy between the current struggle and those which preceded freedom for other oppressed groups.
Having explained the reasoning behind his support for marriage equality, Olson explains why he teamed up with Bush v. Gore opponent David Boies on this case, at this time:
Some have suggested that we have brought this case too soon, and that neither the country nor the courts are “ready” to tackle this issue and remove this stigma. We disagree. We represent real clients—two wonderful couples in California who have longtime relationships. Our lesbian clients are raising four fine children who could not ask for better parents. Our clients wish to be married. They believe that they have that constitutional right. They wish to be represented in court to seek vindication of that right by mounting a challenge under the United States Constitution to the validity of Proposition 8 under the equal-protection and due-process clauses of the 14th Amendment. In fact, the California attorney general has conceded the unconstitutionality of Proposition 8, and the city of San Francisco has joined our case to defend the rights of gays and lesbians to be married. We do not tell persons who have a legitimate claim to wait until the time is “right” and the populace is “ready” to recognize their equality and equal dignity under the law.
Citizens who have been denied equality are invariably told to “wait their turn” and to “be patient.” Yet veterans of past civil-rights battles found that it was the act of insisting on equal rights that ultimately sped acceptance of those rights.
This is exactly right. Olson’s argument is compelling, surprising, and deepens our public debate. Newsweek is no paragon of intellectual discourse, nor are they surer to survive the ongoing media shakeup than the Times. But if the paper of record can’t attract this quality of commentary, it will be ever-harder for that paper to persist. We can get obvious and nuanceless commentary on the issues of the day from many sources. The Times is powerful because its news and opinion pages both lend new depth and complexity to our understanding. If they sacrifice that power, what use is there in saving them?