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In the last couple of weeks, conservative activists and right wing radio entertainers treated us to quite a spectacle of absurd reasoning, courtesy of the Supreme Court’s rulings on the Voting Rights Act (VRA) and Defense of Marriage Act (DOMA).  One of their primary arguments is so … silly .. it feels kind of .. silly … to point it out.  Nevertheless, as responsible adults living in the arena and so forth, we need to look for truth, even from our ideological opponents.  In fact, we need to look even harder from them because we’re predisposed to dismiss them in the first place.  Second, we need to look hard because mass market conservative “leaders” don’t make their own best arguments, even when they’re right.

The Supreme Court substantially reduced the scope of DOMA.  In opposition to that ruling, conservatives argued that the Supreme Court had overturned the will of the American people as expressed by a majority of Congress and the Big Dog himself, Bill Clinton!  And that’s entirely true.  In 1996, “HR 3396 was a fast-track bill in the House….”  It passed 342-56 in the House, 85-14 in the Senate. That’s strong support.  However, things have obviously changed since 1996.  For one thing, 55% of Americans support gay marriage.  For another, Clinton withdrew his support, as well as many of the Congresscritters who voted in favor of it – admittedly, all democrats.

Contrast this with the Voting Rights Act.  VRA received 77 Senate votes and 333 House votes in 1965* and its track record since then (with required “renewal” votes) has only gotten better.  For instance, in 2006 Congress renewed it, 98 to zero in the Senate, 390 to 33 in the House.  That’s better than how DOMA fared.  Yet, when this was gutted by the Supreme Court’s ruling, the conservative world has been largely mum on this inconvenient fact.  Instead, popular conservatives have mainly focused on ad hominem attacks against Justice Kennedy and hungrily eating up of all of that delicious red meat Justice Scalia’s dissent threw out to them. 

I personally think it’s a sad day — Bush’s Supreme Court standing athwart history and successfully, if temporarily, turning back the clock.  They have damaged the Republic and will continue to do so for a generation, I fear.  That said, I think that conservatives would do better to argue what I believe is Chief Justice Roberts’ core opinion – that the law is arbitrary because the formula determining covered jurisdictions hasn’t changed to reflect the Age We Live In.  (I think it’s pretty ironic that it’s arbitrary today but wasn’t a few years ago – this re-interpretation doesn’t seem very strict.)  Sarcasm aside, if it is actually arbitrary – and I’m open to that possibility – then it shouldn’t be the law of the land.  That’s a debate that I think Democrats should be very happy to have have, indeed.  I love the idea of pretty much anyone standing up in Congress and arguing to the American people, with a straight face, that the racism from which VRA was designed to protect us has been cured.  Good luck with that one!  To be fair, they would make this case better than I would.  I’d like to see it. 

So in the end, my point is that there may be some “there” there in terms of a conservative argument.  They just aren’t making it.


* Consider that in 1965, the Supreme Court still hadn’t decided on Loving vs. Virginia, striking down all laws banning interracial marriages.  VRA was passed two years before that.  Yet, nearly 2/3rds of the Senate voted to pass it in a world that criminalized same-sex interracial marriage.