Posted by Sappho on July 5th, 2008 filed in Blogwatch, Marriage, Race

I already linked Amanda Schaffer’s Slate series on sex differences, but as a woman in the computer field, I’ve got to link the part where she gets to how slight the evidence is for significant innate differences in mathematical ability.

Sandy Levinson, in Scholars and political partisanship

One can ask the empirical question whether Supreme Court justices do take political considerations into account when deciding whether or not to grant cert. in the first place or, as in Naim v. Naim, to shamelessly (and shamefully) dodge a case because of a (well-merited?) belief that it would be politically counterproductive, with regard to the possibility of enforcing Brown, to invalidate Virginia’s anti-miscegenation law in 1956 (as against a decade or so later, when it was an easy, unanimous decision to do so)….

Levinson’s post is actually about his reaction to the Heller decision, as someone who thinks as a lawyer that the Second Amendment can plausibly be interpreted in an individual rights sense, but whose stronger interest is a partisan political belief that gun control measures in practice are a political disaster for the Democratic Party for basically symbolic laws that don’t provide much practical benefit. But in the process he gets into this bit about the political considerations that influence the Supreme Court in taking cases at all.

This bit caught my eye because I had been involved in a discussion on another blog with someone who objected to the California Supreme Court ruling on same-sex marriage on grounds that states shouldn’t be deciding such issues individually, that they should go to the federal courts. So we got into a discussion of Perez v. Sharpe, the first court decision to overturn an anti-miscegenation statute, which happened in California in 1948. I brought it up as a precedent, and he suggested that if the case had gone directly to federal courts anti-miscegenation laws would have been struck down nationwide nearly twenty years earlier than Loving v. Virginia (which came in 1967). And at that time I brought up the fact that a 1958 Gallup poll showed only 4% of white people approving of interracial marriages (and a solid majority still disapproving in 1967, but at least by that time opinion was shifting in the right direction) to argue that the Supreme Court would probably have dodged even taking the case, in 1948. Little did I know that the Supreme Court did dodge taking an anti-miscegenation law case, Naim v. Naim, in 1956. In fact, the Court had deliberately worded Brown to try to avoid the miscegenation issue, and searched diligently for a reason not to take Naim.

Many southern whites had charged that the real goal of the NAACP’s school desegregation campaign was “to open the bedroom doors of our white women to the Negro men” (108) and “to mongrelize the white race.” (109) For the Justices to strike down antimiscegenation laws so soon after Brown might have appeared to validate such suspicions. Moreover, opinion polls in the 1950s revealed that over ninety percent of whites–even outside of the South—opposed interracial marriage. (110) During oral argument in one of the original school segregation cases, Justice Frankfurter had seemed relieved when counsel denied that barring school segregation would necessarily invalidate antimiscegenation laws. (111) Frankfurter later explained that one reason that Brown was written as it was–emphasizing the importance of public education rather than condemning all racial classifications–was to avoid the miscegenation issue. (112) …

[Naim v. Naim] was the last case the Justices wished to see on their docket in 1955 …

Both clerks underestimated the desperation and creativity of the Justices. Though several Justices wished to take jurisdiction, (119) others searched for an escape route. Justice Tom Clark suggested one: the plaintiff should be estopped from invoking the antimiscegenation law because she knew of the defendant’s race when they married and deliberately evaded the statutory prohibition. (120) Burton suggested another: they could dismiss the case on the independent state-law ground that Virginia required residents to marry within the state–a plainly erroneous reading of Virginia law. (121)

Of all the Justices, Frankfurter felt the gravest anxiety about the case. If this had been a certiorari petition, he would have rejected it, as “due consideration of important public consequences is relevant to the exercise of discretion in passing on such petitions.” (122) (Indeed, in 1954 the Court had denied certiorari in another southern miscegenation case. (123)) But Naim was an appeal, and Frankfurter admitted that the challenge to antimiscegenation laws “cannot be rejected as frivolous.” (124) Still, the “moral considerations” for dismissing the appeal “far outweigh the technical considerations in noting jurisdiction.” (125) To thrust the miscegenation issue into “the vortex of the present disquietude” would risk “thwarting or seriously handicapping the enforcement of [Brown].” (126) Frankfurter’s proposed solution, which the Justices adopted, was to remand the case to the Virginia court of appeals with instructions to return it to the trial court for further proceedings in order to clarify the parties’ relationship to the commonwealth, which was said to be uncertain from the record; clarification might obviate…

*Christopher didn’t get that memo about monogamy having a different meaning for gay men.

At Box Turtle Bulletin, Timothy Kincaid takes issue with David Benkof’s representation of the rate of monogamy in the gay community.

And the 1989 survey they were referencing found that while 26% of respondants reported that their relationship was based on “monogamy with some exceptions” a full 63% reported “monogamy” (no exceptions)….

(Hat tip to Ex-Gay Watch for this link.)

Security and Human Behavior.

When Israel goes to war … when Israel negotiates (hat tip to Johan Maurer).

2 Responses to “Blogwatch”

  1. Jean Says:

    That 26/63 split sounds like they cheat about the same as straight married people, only they admit it.

  2. Lynn Gazis-Sax Says:

    Good point, that could well be.