Democrats, Democracy, And Courts

This article in The New Republic, which I discussed here, called upon Democrats to abandon their reliance on judicial filibusters as well as their tendency to prevail upon courts to impose what they can’t win in political and legislative battles.

Now there’s another article in TNR arguing in a similar fashion that the recent decision of the Oregon Supreme Court to disallow the gay marriages that Multnomah County (Portland) had approved is a Good Thing for progressive Democrats. Why? Because it gives Democrats the opportunity “to get off the sidelines.”

It’s time for same-sex marriage advocates to call the Democrats’ bluff (if that’s what it is) on gay-rights issues once and for all. Democratic politicians and pundits have been accusing same-sex marriage advocates of trying to circumvent the political process by seeking fairness through the courts. They have also insisted that lesbians and gay men ought to stop aiming at the gold standard of equal-marriage rights, and instead skirmish in the legislatures for compromise legislation.

Now it’s time for Democratic leaders to stop carping and start acting….

What I find most interesting about this article and its argument, however, is the frank acknowledgment that “Oregon’s Supreme Court [and presumably other courts as well] had no power to gender-neutralize” state laws regarding marriage. Now, what would be really good would be if TNR’s writers and readers agreed that neither do courts have the power to racialize racially-neutral laws such as Title VI:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. [42 U.S.C.