Today was a big day in politics across the nation. The Supreme Court struck down DOMA, in a move that is a huge step forward to LGBT rights, while simultaneously creating an even starker contrast between the haves and have-nots when it comes to marriage equality. It’s all or nothing now — either you’re straight, married in one of the 13 states that have legalized same-sex marriage, or you have nothing more than a meager civil union. Similarly, the Prop 8 appeal was dismissed, along with the 9th Circuit’s ruling, which leaves us with a California with only one federal case on point: and that one stating that the ballot initiative constituted unconstitutional discrimination and denial of a fundamental right.
Also in big news was the result of the abortion bill in Texas. The bill would have created even heavier restrictions on abortion in Texas — already a state teetering at the edge of creating the impermissible “undue burden” on a woman electing to have an abortion. In an instant celebrity move, picked up by twitter, tumblr, facebook and multiple other social media outlets, Senator Wendy Davis led a nearly 12 hour long filibuster, taking the discussion past the midnight deadline to pass the bill.
Photo from the Dallas News
All three of these initiatives are great things. The Supreme Court has made massive strides in advancing LGBT rights, and Davis’ filibuster prevented the passage of a bill that would have banned later term pregnancies (despite the fact that many severe birth defects can’t be detected until weeks 20 – 23), required surgical-standard requirements for crisis centers performing abortions (which would have effectively closed down all but 5 of the 42 abortion providers in the state), and placing additional restrictions upon physicians. On the practical level, I’m not upset about any of them. On a philosophical level, I’m not so sure.
Over the coming week there are sure to be multiple articles written by constitutional scholars far wiser than I about the ramifications of the Supreme Court’s new modifications to the standing doctrine: for myself, I can’t seem to wrap my head around a doctrine that allows for BLAG to effectively represent the federal government, which has no law or doctrine allowing for delegation of such a power (and, for that matter, on which there is a specific Supreme Court case disavowing the ability of legislators to defend one of their laws) while prohibiting California from setting its own laws for representation. A state, the Supreme Court seems to say, must have an Attorney General represent its interests in courts. Which implies that every state must mirror the federal government.
More to the point is the filibuster. With social media providing us an ingress into congressional voting that we’ve never had before, the filibuster has gone from being reported upon in newspapers the following day to becoming a spectacle that is watched. Rand Paul became a hero after filibustering the drone bill. Now Wendy Davis is doing the same. Of course, neither of them managed to beat Strom Thurmond’s record — 24 hours in an attempt to beat the Civil Rights Act of 1957. At the time, people applauded him — now, of course, one would be hard-pressed to find someone who would still advocate for that filibuster.
The idea of the filibuster is derived from gentleman’s law — when the floor has been ceded to a delegate, you don’t take it back. It’s another practice we’ve adopted from English law, though the British, for their part, have put strict regulations on the practice so that the longest recorded filibuster was 11 hours, and most last no longer than three or four. Texas has a “germaneness” requirement — and shouldn’t it? When people complain about the inefficiency of the government on a routine basis, shouldn’t there be restrictions on a practice that is devoted, quite literally, to inefficiency? A requirement that a person continue to speak on the matter being discussed seems a reasonable way to promote efficiency.
And it isn’t as though the filibusterer doesn’t have help. These aren’t impassioned speeches, made on the fly, any longer. They’re carefully doled out, planned, with cohorts and colleagues coming prepared with questions to ask in order to help stall time. They are constructed to obstruct the government. The scary thing, to me, is that their whole purpose is to block the majority.
Sometimes I don’t agree with the majoritarian view in the country. Sometimes we need a counter-majoritarian view. But that’s not the government that we have set up, and the only stop-safe that we have is the (supposedly) impartial Supreme Court. As much I, personally, might now want the Texas abortion bill to pass, I’m not sure that I can abide the filibuster as a way to prevent it. The states were set up as “laboratories of experimentation” and never, more than today, is that apparent.
The Supreme Court has created a standard to regulate abortion restrictions, a constitutional threshold. If the Texas abortion bill had passed (or, indeed, if it passes in the future) it will then proceed through either federal or state courts to determine whether it rises above that constitutional burden. That’s one way to fight against the bill. Then, too, the voting records of the Senators are made public — the people of Texas have the opportunity to re-elect or not based upon that vote, and based upon their platform. A new state legislature can repeal that bill. Or you move to a state with lesser restrictions. That sounds abhorrent, but that’s how the country was originally envisaged — people could not only vote on election day, but also with their feet, moving to the state that more closely aligns to their ideologies.
I applaud Wendy Davis for being a strong advocate, and I applaud her for many of the points that she made during her filibuster. I also liked her shoes. However, I cannot applaud the Democratic Party for taking that tactic. (I do, however, commend the people of Texas who utilized a First Amendment Right to picket, speak, and protest.).