As the Washington Post reports:
Fifty-seven years after federal troops escorted nine black students into Little Rock’s Central High School as a white mob jeered, Arkansas again finds itself in the center of a debate over civil rights. This time, the issue is gay marriage, but the 1957 desegregation crisis still casts a shadow.
Followed by: Judge strikes all Arkansas bans on gay marriage.
Update. Marriage equality in Arkansas again is stayed.
Virginia, which gave rise to the Loving decision in which the Supreme Court eventually overturned state bans on mixed-race marriages, is another deeply symbolic venue that is seeing judicial progress.
As we’ve noted before, comparing the fight for same-sex marriage equality with the fight to allow mixed-race marriages makes many religious conservatives, and many African-Americans, exceedingly angry. In the National Journal, Ron Fournier describes some of these fault lines and notes, optimistically:
It’s easy to demonize conservatives and Christians. It’s harder to recognize that faith is a stern master, especially among African-Americans whose animus toward homosexuality runs deep. We should know by now that social change takes times, but the American public tends to eventually get things right.
Finally, a look at the state-by-state battle lines as of today, and the timeline of events that brought us here.
More. Dale Carpenter blogs at the Volokh Conspiracy:
Counting both federal and state court decisions, [Oregon is] the 17th consecutive judicial win for same-sex marriage advocates the Supreme Court’s decision in United States v. Windsor last summer. …
It’s probable that this long string of judicial victories for same-sex marriage will come to an end in the near future, perhaps in a circuit court. It’s also likely that the issue will end up in the Supreme Court in the next couple of years. Same-sex marriage will come to that Court, when it does, with a momentum that could not have been imagined when it began in the United States ten years ago this month.
It’s a marriage-go-round of rulings:
Here’s the Oregon decision by district court judge Michael J. McShane. The conclusion is very moving.
And a judge appointed by George W. Bush just overturned Pennsylvania’s marriage equality ban, ending his opinion by stating, ‘We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
46 Comments for “Arkansas’ Symbolism…and More”
posted by Tom Scharbach on
I understand why opponents of equal treatment under the law for gays and lesbians do not want to be compared to segregationists or reminded of the many similarities of the two struggles for equality. Sixty years after Brown v. Board, all but the dimmest bulbs on the Christmas tree are aware that the American people reject overt racism and the system of segregation that was its progeny.
Our struggle has not reached that point in the American mind; the day will come, but it will be a long time coming. As recently as a decade ago, one of our two major political parties cooperated with religious conservatives to leverage fear and loathing about homosexuals to political advantage. In the last few years, that political shoe has begun to pinch in increasingly large areas of the country, and the political party that a decade ago was using us as cannon fodder is now trying to find a way out, a way to defuse the issue as it turns on them. We will get to the point where opponents of our struggle are confined to the dustbin of history, but it will be a few more decades before we get there.
The fact is, though, that there are many important parallels between the African-American struggle for equal rights under the law and our struggle for equality. Even those who argue that the comparison should not be made (e.g. Jonathan Rauch, “Opposing Gay Marriage Doesn’t Make You a Crypto-Racist“) are forced by that fact to admit the similarities that do exist before going on to attempt to argue (in the case of Rauch’s article, rather stupidly) that the two are so different that the comparison should not be made:
As Rauch points out, and Fournier emphasizes, there are many more cultural and historic parallels between (1) the history of our struggle and the struggle of African-Americans and (2) the composition, rhetoric and religious justification of the opponents to our equality and the composition, rhetoric and religious justification of opponents to African-American equality.
The similarities and parallels lead, inevitably, to cognitive dissonance in those who wish to deny them. And that (as you put it) “makes many religious conservatives, and many African-Americans, exceedingly angry” at any suggestion that the two are, in fact, parallel and similar in many was. The operative word — I’m glad you used it — is “exceedingly”, by which, I assume you mean “out of proportion”.
That is the kind of anger that develops when cognitive dissonance is extreme.
Imagine, for example, the situation of Bernice King, the daughter of MLK and Coretta Scott King. Bernice King is a fierce opponent of marriage equality and a woman who becomes “exceedingly angry” at the comparison between the two movements.
I understand that — she not only has to contend with the “arc of history” vision of her father, who has become something of an American saint, but with her own mother’s strong and consistent support of gay and lesbian equality, her comparison of the two movements (“We have a lot more work to do in our common struggle against bigotry and discrimination. I say ‘common struggle’ because I believe very strongly that all forms of bigotry and discrimination are equally wrong and should be opposed by right-thinking Americans everywhere. Freedom from discrimination based on sexual orientation is surely a fundamental human right in any great democracy, as much as freedom from racial, religious, gender, or ethnic discrimination.“), and her support for marriage equality (“Gay and lesbian people have families, and their families should have legal protection, whether by marriage … A constitutional amendment banning same-sex marriage is a form of gay bashing and it would do nothing to protect traditional marriages.“).
It cannot be easy to be Bernice King, valiantly defending the indefensible while trying to wear the mantle of her parents.
I know, too, that that many (in particular younger people who did not personally live through segregation times as those of us who are older did) tend to oversimplify and conflate the parallels (as in “LGBT rights is the new Civil Rights movement”), denying the differences that also exist. That can be aggravating — it certainly is annoying — but I can understand that, too, even though I (having worked in Mississippi in the summer of 1965 as one of the army of young people helping with voting registration) think it, well, callow.
For these young folks, in this time, participating in our struggle for equality is their chance to take a stand for justice, and to fight for the right. For them, in this context, our struggle is “the new Civil Rights movement”.
And I have to admit that every time I see Bryan Fischer or Brian Brown frothing at the mouth, I am taken back, emotionally, to 1965, and every time I see Tony Perkins’ tight-lipped sanctimonious pronouncements on Fox I am reminded of many like him from earlier times in an earlier struggle.
If younger people are callow, I have much less trouble forgiving them their youth than I do men like Brown, Fischer and Perkins — and Wisconsin’s Julaine Appling, the product of Bob Jones University moved north to spread the Gospel of Fear and Loathing to us Midwesterners — who are determined to keep us in the 1950’s.
But, to my mind, all the argument back and forth about the historic and cultural similarities and differences (including this rather gushy post about “symbolism”) is largely irrelevant.
What counts are the legal and constitutional parallels, which are strong and precise. Loving is important, not as symbolism, but because for us it is the keystone and cornerstone of a long line of legal precedent that establishes that the right to civil marriage is a fundamental constitutional right that cannot be denied without a clear and compelling rationale tied to the public good. If we win whatever case(s) the Supreme Court decides with respect to marriage equality (and I am convinced that we will so long as the Court’s composition remains as it is), it will be because of Loving and the other “marriage is a fundamental constitutional right” cases that were decided over the last 50-odd years.
Our lawyers (with an inadvertent assist from our opponents who took the witness stand and were demolished on examination) have knocked the religiously-neutral props out from under the opponents of marriage equality. Lawyers defending the anti-marriage amendments and laws are reduced to arguing without an argument at this point, and anti-equality organizations have been reduced to arguing “Jesus, Jesus” and not much more.
But the fact that our opponents are unmasked, and their religiously-neutral “arguments” have been exposed as nothing but lies and more lies, would not get us to the finish line without Loving and the other “marriage as a fundamental right” cases.
We will win marriage equality, now, in the courts. The political battle is no longer relevant, except as a mopping up operation.
posted by Mike in Houston on
The sophistry of the anti-equality crowd can’t be summed up any better than this clip from last Tuesday’s Houston City Council meeting — with noted constitutional scholar (snork) Becky Riggles spouting talking points that Stephen has parroted before:
https://www.youtube.com/watch?v=o_ZBaePAYx8
posted by Houndentenor on
Bigots hate being called out on their bigotry. Segregationists didn’t like it either. Nor did those opposing women being allowed to vote. How far back do we want to go with this. Oh, no. They don’t have anything wrong with those people PER SE, it’s just you know…different. Yeah. Sorry, I’m not playing that game. I can’t stop Rauch and others from doing so (and wouldn’t if I could) but the idea that if we give the bullies enough of our lunch money they’ll leave us alone is absurd. Some people can see that bigotry is wrong. The rest have to be shamed into at least not interfering with others’ rights. If we had waited for Arkansas to desegregate its schools on its own accord we’d still be waiting. (And as someone who lived there I can tel you that for all practical purposes much of the state’s public schools are all but segregated even now. Some people are very invested in their need to make sure other people don’t have rights. Somehow not being able to impose their beliefs or cultural baggage onto their neighbors is a violation of THEIR rights. I don’t expect those people to change. It’s none of my business what their beliefs are. But placating such people who they can feel like they are good people when at least in this regard they are not is nonsense and I’ll have no part of it.
posted by Tom Jefferson III on
Sometimes calling some a bigot, even if it is true, is not entirely productive.
posted by Tom Scharbach on
Sometimes calling some a bigot, even if it is true, is not entirely productive.
I think that is almost always true (I don’t use the term for that reason, no matter what I think privately about men like Brian Brown, Bryan Fischer and Tony Perkins), but that doesn’t mean that we need to accommodate or legitimize them.
We do not have to grant them special “religious freedom exemptions” applicable to discrimination against gays and lesbians but no one else. We do not have to pat them on the head and deny that our struggle for equality is as much a part of the “arc of history” as was the Civil Rights movement, or deny the similarities. We do not have to go “church lady” on other gays and lesbians when they stand up and fight for equality in their workplaces, shaming them for raising hell. We do not have to treat their blatant lies — that gays and lesbians are perverted, diseased child molesters out to destroy marriage and family, and so on — are “just another point of view”. Christians among us do not have to accept their interpretation of scripture as “orthodox”. And so on.
Most of all, we do not have to take our foot off the gay and delay equality to make things more comfortable for them or the political party they control. We shouldn’t.
posted by Tom Scharbach on
Uh, should be “foot of the gas“, not “foot off the gay“. Trying to keep the “foot on the gay” is what they do, not us.
posted by Jorge on
Yeah. Sorry, I’m not playing that game. I can’t stop Rauch and others from doing so (and wouldn’t if I could) but the idea that if we give the bullies enough of our lunch money they’ll leave us alone is absurd.
There are times when I find it concerning being the only (well I’m not closeted) gay person I know in certain circles because I think there are more important things to say than what I am inclined to.
But the progressives are in the majority overall, so that really shouldn’t bother me.
As we’ve noted before, comparing the fight for same-sex marriage equality with the fight to allow mixed-race marriages makes many religious conservatives, and many African-Americans, exceedingly angry.
To the left of me Bill O’Reilly just did a (rather boring) segment on race and identity politics on the left. People don’t just get exceedingly angry. They treat the fact that they’re angry as a federal offense.
So people get angry. It is their right and duty, and I respect it on those grounds, but other than that I utterly do not care unless they happen to be at least half-right, and being right doesn’t depend on being angry.
And so on and so forth.
posted by Wilberforce on
Joe Biden just spoke about this, and mentioned the civil rights movement and Stonewall together in the same breath. It was incredibly effective.
The only reason I can think of for why Stephen and friends are so against it is that they are actually on the bigots’ side.
posted by Doug on
Stephen is either on the bigots’ side or filled with internalized homophobia.
posted by Jorge on
By effective, do you mean people who weren’t on our side before were persuaded; that Biden made a high-quality speech; or that people who were already on our side to begin with gave a big applause?
The reason Stephen and friends are so against it is because “it makes many religious conservatives, and many African-Americans, exceedingly angry.”
Now why even bother making note of African Americans here? Perhaps it’s some internalized longing for them to be as allied to our cause as their civil rights movement’s ideas are. Or maybe it’s just racism, a way to stick it to a favored group by showing they’re really wedded to leeches. Whatever the reason, it’s because they have a certain political, social, or symbolic clout.
Perhaps the same is true of religious conservatives–one wants to have all the great things religious conservatives have done for this country to be part of our world, too. Or maybe it’s an opportunity to laugh at them. Or perhaps they are just powerful enemies who must be thwarted.
Internalized homophobia can be either Stockholm Syndrome-like or be part of a long-term Machievelian strategy that lets you win in the end. Similarly, when you ignore your own internalized homophobia, you can either alert your enemies prematurely, causing you to lose and suffer greatly, or you can live free internally and be immune to how other people treat you.
It is ultimately a useless term.
posted by Tom Scharbach on
I think that this is a wise and thoughtful observation.
I don’t know why Stephen is so focused on African-Americans. He comes back to it again and again, but he doesn’t give us a clue as to why. It is particularly curious because a majority of African-Americans now appear to support marriage equality.
Support for marriage equality among African-Americans has grown somewhat more slowly than support among whites, but the difference is not a great difference.
In 1996, there was no significant difference between whites and African-Americans on the issue (27% support, 65% against among white, 26% support, 66% against among African-Americans).
In the most recent polling I can find (WP/ABC, April 2014), the numbers show a slightly wider margin (60% support, 33% opposed among whites, 56% support, 35% opposed among non-whites).
The difference, such as it is, is probably explained by the larger percentage of African-Americans who adhere to fundamentalist, evangelical Christianity than whites — adherents of fundamentalist, evangelical Christianity continue to strongly oppose marriage equality (28% support, 66% oppose).
Continued strong opposition among evangelicals may be entirely explained by religious belief, or there might be cultural factors involved. White evangelical Christians and African-Americans share a common characteristic — relatively high levels of family instability. Among both groups, rates of out-of-wedlock births, divorce and so on are higher than among the population at large, and there may be a correlation between that instability and the perception that marriage equality threatens family instability. I don’t know.
But an sentence in the Fournier quote caught my attention: “It’s harder to recognize that faith is a stern master, especially among African-Americans whose animus toward homosexuality runs deep.”
As I’ve thought about Fournier’s sentence, the connection/juxtaposition he makes between “faith as a stern master” and “animus toward homosexuality”, led me to wonder whether “animus toward homosexuality” is, in whole or in part, a precursor of “faith as a stern master”.
Christian scripture does not support opposition to marriage equality nearly as directly as Christian scripture supports opposition to divorce and remarriage after divorce. Jesus spoke bluntly and directly in opposition to divorce and remarriage after divorce; the texts from Christian scripture used as “proof texts” to support opposition to homosexuality are elliptical at best. Conservative Christians instead look primarily to texts (e.g. Leviticus 20:13) from Hebrew scripture as justification.
In my view, a view apparently shared by most Jews (over 80% of American Jews support marriage equality, the highest percentage of support among all Americans, even secular Americans), conservative Christians don’t appreciate the historical and textual context of the “proof texts” from Hebrew scripture, and misuse the texts.
The deeper question, though is why conservative Christians use such flimsy props as support for such determined opposition to marriage equality, while almost entirely ignoring divorce/remarriage as an issue. The answer, I suspect, will someday (when cultural historians have done the work to write accurate histories) find that conservative Christians have used scripture to justify “animus toward homosexuality” in much the same way as southern conservative Christians used scripture to justify animus toward segregation.
Whatever the answer may ultimately turn out to be, the differences between whites and African-Americans on the issue of marriage equality are marginal, and any attempts to use the marginal differences between whites and African-Americans with respect to marriage equality as a “wedge” (as NOM attempted to do in recent years) to break up the Democratic coalition over this issue are misplaced.
It won’t happen. Democrats are overwhelmingly (70% to 26%) in favor of marriage equality at this point, and so are independents (61% to 32%). Support for marriage equality among Democrats is a “done deal”, and it is not going to change.
posted by Jorge on
Thank you.
I don’t know why Stephen is so focused on African-Americans. He comes back to it again and again, but he doesn’t give us a clue as to why. It is particularly curious because a majority of African-Americans now appear to support marriage equality.
For me it’s probably some combination of growing up a strong admirer of the Civil Rights Movement, developing a certain intepretation of it (maybe center-left), and my own experiences with African Americans. Paying attention is important to me.
As for religious conservatives, while it’s a difficult to wrap my head around people who have problems with evolution, aren’t willing to grasp basic facts about sexual orientation, who think God only saves people who believe in the square root of 9, and are otherwise normal… well, ethical people are basically willing to consider “difficult” ethical questions. Some of the people here are probably right that many of their leaders and followers deserve every bit of discomfort they are getting, because of what their goals are and have been. I just don’t believe those kinds of people are in the majority of just about any group.
It’s not so much about taking the enemy’s side so much as it is about the way you fight the enemy based on how related you are to the enemy. Those who live by sword should perhaps die by the sword, but those who fight by the word should be met with the word in return.
In my view, a view apparently shared by most Jews (over 80% of American Jews support marriage equality, the highest percentage of support among all Americans, even secular Americans), conservative Christians don’t appreciate the historical and textual context of the “proof texts” from Hebrew scripture, and misuse the texts.
I have my theological differences with you, Tom, but the tenacity with which people cling to the Leviticus passages… and then stop without looking further, is very difficult for me to understand. You’d think after years of being laughed at by people pointing out that Leviticus preaches a whole list of outdated punishments and crimes (not to mention the dietary laws which Christians do not abide by) they’d learn a little humility. I think the churches have too much control over the people. I think we’re just dealing with people who believe anything they’re told by people who don’t care.
posted by Doug on
“I think the churches have too much control over the people.”
One might call that brainwashing since the church has no legal or political authority over it’s flock.
posted by Jorge on
Careful now, Doug.. It takes a thief to suspect a thief.
posted by Doug on
“Careful now, Doug.. It takes a thief to suspect a thief.”
What the hell does that mean. I have no control over anyone other than myself. You are the one who suggested that churches brainwash people. I was just pointing it out.
posted by Houndentenor on
After Prop 8 passed there was a concerted effort to blame it on the African American voters. It was a clever ploy. Evil, but clever. Pit the minority groups (in this case gays and African Americans) against each other. So long as we are blaming each other and in-fighting we might not notice that the reason things still suck for us is mainly the GOP. Trying to play up racism among gay people (which I’m ashamed to say exists) and homophobia among black people (also still a problem) is a horrible ploy and one decent people should be shamed to be associated with. But then we aren’t talking about decent people.
posted by Jorge on
*Shrug.* As someone who has held and played both cards, I think they’re both honest plays, though different people play them for different reasons. For the most part it boils down to a rejection of coalitions of identity politics. The myth that the Republican party is the common enemy to all minority groups is one that I think has been extremely harmful to the political, sociocultural, and economic advancement of African Americans in this country. It would have perverse effects on the LGBT community if more people believed it. Much of what Mr. Miller exaggerates or glooms and dooms about has occured in the past without exaggeration.
Take everything in this country that could be improved about the state of the African American community and ask yourself, where is their GetEqual buzzing around the President’s ear? They went away when the Democratic party took the White House. The gays didn’t.
posted by Tom Scharbach on
The only reason I can think of for why Stephen and friends are so against it is that they are actually on the bigots’ side.
I think that there is a much simpler explanation, having nothing to do with “internalized homophobia” or Stephen’s personal attitudes toward marriage equality. Stephen has a strong interest in preserving the Republican coalition.
I’ve been reading/contributing to IGF for a decade, and at one point I read back to the beginning, looking at every post on IGF since it was founded.
Although the issues being discussed from time to time have “evolved” as our march toward equality has moved forward, Stephen has always been consistent about one thing: Stephen has always taken the position that we should not provoke or offend religious conservatives, but find a way to bring them over to our side.
That single theme permeates everything that Stephen has written over the years, from the early days when Stephen “marriage as moral”, to his support for marriage-equivalent civil unions as opposed to marriage equality, to his concern that using the courts rather than waiting on the political process would create “backlash”, to his current concern for “bakers, florists and photographers”. Underneath it all, I think that Stephen has manfully tried to find a way to keep the economic conservatives and social conservatives united in opposition to the “totalitarian left”, at whatever cost.
Maybe I’m right. Maybe I’m wrong. But I do think that it is just that simple.
posted by Wilberforce on
Exactly. Stephen wants to preserve the Republican Party, at our expense. In his world, we are to back off from any work or argument that threatens the strength of the Republican coalition. The religious right is a major player in that coalition, so in a very real sense, he is on the bigots’ side.
Jorge
‘By effective, do you mean people who weren’t on our side before were persuaded; that Biden made a high-quality speech; or that people who were already on our side to begin with gave a big applause’?
Poor choice of word on my part, although I thought the context would be enough to avoid confusion.
I meant that it was a high quality speech and a strong argument, which should be sung from the rooftops.
Gay rights are civil rights.
Religious conservatives are probably uncomfortable with that because they know it’s a winning argument. Stephen is uncomfortable because he’s on their side more so than he’s on ours.
posted by Doug on
And the worst part is that Stephen wants to hold the Republican Party coalition together for economic reasons, i.e. keep his tax cuts. Doesn’t Stephen realize that Clinton raised taxes and created 20+ million jobs while Bush cut taxes, spent the surplus on war and only created 5 million jobs. Cutting taxes does NOT grow the economy it only enriches the wealthy.
posted by Houndentenor on
I have to admit that I too was concerned that unpopular court decisions would lead to backlash. Worse, I was afraid of losing in court and being stuck with a Scalia-penned decision for 20 years. Those fears turned out to be unfounded in both cases. Yes, there’s a lot of belly-aching on the right these days, but I have come to realize that they are positioning themselves for the inevitable unpopularity of anti-gay positions. They know it’s as nonsensical as their old “I’m for equal rights but not special rights” line, but it’s all they can come up with to cover their asses once they have become social pariahs for having advocated against equal rights for gay people.
posted by Jorge on
I am also a little astonished at the lack of a strong backlash.
In particular the Catholic Church in the United States has been noticably quiet. They’re still very much against legal recognition of same sex marriage. And they’ve had plenty of opportunity to speak up–over recent years the president of the US Conference of Catholic Bishops was Cardinal Dolan of New York, who is in personality someone almost in the mold of the late John Cardinal O’Connor, a major force against abortion in his day.
…. from what I see on its website, I’m torn between the impression that the US Church thinks its position is moderate and the impression that it realizes its weak political position vis-a-vis its flock and is trying to consolidate it–much like Pope Francis has done, for example.
Anyway, a lot less unity in fervor among the opponents.
posted by Houndentenor on
There have been comments from various bishops including Dolan but since Dolan IS gay, he might not want to be the poster boy against gay rights.
posted by Tom Scharbach on
A federal judge ruled for marriage equality in the cases of Geiger v. Kitzhaber and Rummel and West v. Kitzhaber, which were earlier consolidated into a single case.
Because the state has elected not to appeal the decision, and no other party with standing to do so exists under the Supreme Court’s ruling in the Prop 8 case, Oregon has become the 18th state enjoying marriage equality.
Couples are marrying as we speak. Score one more state for the Gipper.
posted by Tom Scharbach on
NOM filed for a stay with the 9th Circuit. The 9th Circuit turned NOM down flat. I think that is the end of the road for NOM in this case.
posted by Walker on
No one could ever disagree with me unless he’s on the bigots’ side.
posted by craig123 on
If you disagree with the lefties and their one-party strategy, you are both a bigot and a self-loather! Thus are dismissed the views of those who think the Democrats’ left-liberal policies are bad for the country, bad for the economy, and thus bad for Americans both rich and poor. Bigots and self-loathers all! End of debate.
posted by Tom Scharbach on
It’s probable that this long string of judicial victories for same-sex marriage will come to an end in the near future, perhaps in a circuit court. It’s also likely that the issue will end up in the Supreme Court in the next couple of years.
As I look over the current legal landscape, I doubt that any of the circuit court cases now pending will be ready for Supreme Court review until the October 2015 to June 2016 term. The reason I think this is that the cases are likely to be heard twice in the circuit courts, first by a three-judge panel and then en banc, by a larger panel. To me, that suggests that we can expect a decision in June 2016.
In terms of which Circuit will go in which direction, my guess is that the only Circuit likely to issue a negative decision is the 5th Circuit (Texas, at this point, but also covering Mississippi and Louisiana). The 5th Circuit is the most conservative in the country. The problem for judges in that (or any other) Circuit is that the marriage discrimination judges will have a touch time coming up with a plausible basis for a decision.
At this point, only two religiously-neutral legal arguments are plausible:
(1) The argument that the 10th amendment grants states sole and unconfined discretion over who can marry and who cannot. To win that argument, proponents of marriage discrimination will have to convince the Supreme Court to distinguish, overturn or severely limit a deep line of “marriage as a fundamental right trumps states rights” cases, most notably Zablocki and Loving.
(2) The argument that states have a rational purpose in granting marriage only to straight couples because only straight couples need marriage. This argument has prevailed in three state court decisions (Indiana, New York and Washington) and is the only argument that has prevailed in any court. The argument, which posits that straight couples are so irresponsible with respect to their sex lives and the children that they spawn that the state has an interest in “encouraging” them to settle down and raise their children, whereas gay/lesbian couples are responsible parents who do not need the state to prop them up) is absurd on its face in my opinion.
That’s the rub for marriage discrimination proponents — the arguments that they’ve put forth have turned into dust.
Same-sex marriage will come to that Court, when it does, with a momentum that could not have been imagined when it began in the United States ten years ago this month.
Michael and I were talking about that last night. In 2004, neither of us thought we would be married in our lifetime. We married March 24, and are now looking forward to Alabama, uh, Wisconsin having to recognize our marriage by the time we file our 2016 taxes. That’s huge.
posted by Don on
I’m not so sure the new assertion from Volokh will come to pass. I think there hasn’t been an anti-marriage equality opinion because that opinion is impossible to write. Logically, there is no reason to differentiate between same and opposite sex couples. One would have to outlaw a variety of existing marriages to square the circle. Coupled with the line of SC cases over the last 20 years delegitimizing the social disapprobation, there’s nothing left to hold onto. One would have to undo a lot of jurisprudence to get to a flimsy fig leaf legally.
posted by Tom Scharbach on
I agree with you, and I’ll be watching the 5th Circuit (the Texas case) closely. The 5th Circuit is the most conservative circuit in the country, and the circuit from which an unfavorable opinion is most likely to come, if it does. If the 5th Circuit rules in favor of equality, that’s almost certainly the end of it except for mopping up.
posted by Houndentenor on
Well, I’m sure we’ll get to read Scalia’s scathing dissent and find out what the final “argument” against marriage equality will be.
posted by Don on
I believe the reason why fundamentalists will not shift on this debate is not because of what they have been taught but their core belief system that existed before they were attracted to fundamentalism. Sure, many children are born into it and come out later changing their minds. But those who are drawn to it in their teen and young adult years have a predisposition toward the world view. Black and white answers to life. Absolute certainty of things. It isn’t that the message is convincing per se. It is that the world view screams “finally, somebody else gets it” and they join the fold. I always liked to think that logic held sway in people’s minds for these sorts of things. But people come to conclusions for a variety of reasons. That’s why I don’t think they’re going to be terribly persuadable, ever. They have a book that defines right and wrong, no gray areas, and they like their lives that way. It allows them not to expend energy in that arena of life so they can spend it elsewhere. It brings comfort and clarity to a world that can often be confusing if not terrifying.
posted by Mike in Houston on
Yes — it’s just unfortunate that their lifestyle choice creates so many problems for the rest of society.
posted by Lori Heine on
The problem is that their book doesn’t say what they’re trying to make it say. Not when they — like — you know, actually read it.
If you interact with very many of these people (fortunately, I no longer have to), you soon recognize that they are responding to a neurosis, if not an out-and-out mental illness. Distorting a book they claim to be holy isn’t something that can be done without a powerful dose of cognitive dissonance.
They are preferring to believe what some people SAY the book says, rather than interpret it for themselves. That’s fantasyland thinking. I’m sure there’s a psychological term for it, but most rational people don’t need to know the official term to know that it’s nuts.
posted by Doug on
I wonder how many of these right wingers are divorced and remarried? And how many have had affairs. I believe the ‘book’ has something to say about that but is totally ignored.
posted by Houndentenor on
The religious right is about nothing except institutionalized hypocrisy. It’s not about what’s in the Bible or actually leading a moral life. It’s about putting up the public pretense of following a set of rules that even they don’t actually follow. It’s all okay so long as no one knows. That’s what they fear most about gay people today. We aren’t ashamed and aren’t in hiding. They don’t even know how to process that because they do all their “sinning” behind closed doors and lie about it and campaign against the very things they themselves do. They can’t imagine why the rest of us don’t want to live that way.
posted by Fritz Keppler on
I’m reminded of an old saying back home in Louisiana, that Baptists never drink. In front of each other. And another one I heard recently, if you go fishing with a Mormon, make sure there are two Mormons with you, else the first one will drink up all your beer.
posted by Houndentenor on
Younger Evangelicals are far more accepting of gay rights (including marriage) now. I suspect they feel about the anti-gay stuff like I felt about the racism in the churches in which I grew up. I learned quickly not to say anything about it in front of certain people, but I knew even at 5 or 6 that their bigotry was wrong.
posted by Tom Scharbach on
Wrightwood was decided today in Pennsylvania. An appeal to the 3rd Circuit is expected. At present, no stay is in place. That is likely to change.
Here is the scorecard:
1ST CIRCUIT
MAINE – Marriage Equality
MASSACHUSETTS – Marriage Equality
NEW HAMPSHIRE – Marriage Equality
RHODE ISLAND – Marriage Equality
2ND CIRCUIT
CONNECTICUT – Marriage Equality
NEW YORK – Marriage Equality
VERMONT – Marriage Equality
3RD CIRCUIT
Appeal Expected
DELEWARE – Marriage Equality
NEW JERSEY – Marriage Equality
Pennsylvania – Equality Decision
– Whitewood v. Wolf – Appeal Expected
– Palladino v. Corbett
– Pennsylvania Health Dept. v. Hanes
– Ballen v. Corbett
– Baus v. Gibbs
4TH CIRCUIT
Appeals Pending
North Carolina
– Fisher-Borne v. Smith
– Gerber and Berlin v. Cooper
– General Synod of the United Church of Christ v. Cooper
South Carolina
– Bradacs v. Haley
Virginia – Equality Decision
– Bostic v. Schaefer – On Appeal to 4th Circuit
– Harris v. Rainey
West Virginia
– McGee v. Cole
5TH CIRCUIT
Appeals Pending
Louisiana
– Forum for Equality Louisiana v. Barfield
– Robicheaux v. George
– In Re Costanza and Brewer
Mississippi
– Czekala-Chatham v. Melancon
Texas – Equality Decision
– De Leon v. Perry – On Appeal to 5th Circuit
– McNosky v. Perry
– Zahrn v. Perry
– J.B. v. Dallas County and Texas v. Naylor
– ALFI v. KLL
6TH CIRCUIT
Appeals Pending
Kentucky – Equality Decision
– Bourke v. Beshear – On Appeal to 6th Circuit
– Kentucky Equality Federation v. Beshear
– Romero v. Romero
Michigan – Equality Decision
– DeBoer v. Snyder – On Appeal to 6th Circuit
Ohio – Equality Decision
– Obergefell v. Wymyslo – On Appeal to 6th Circuit
– Henry v. Wymyslo – On Appeal to 6th Circuit
– Gibson v. Himes
Tennessee – Equality TRO
– Tanco v. Haslam – On Appeal to 6th Circuit
7TH CIRCUIT
ILLINOIS – Marriage Equality
Indiana
– Bowling v. Pence
– Officer Pamela Lee v. Pence
– Midori Fujii v. Indiana Governor
– Baskin v. Bogan
– Love v. Pence
Wisconsin
– Wolf v. Walker
– Halopka-Ivery v. Walker
8TH CIRCUIT
Arkansas – Equality Decision
– Jernigan v. Crane
– Wright v. Arkansas – On Appeal (Arkansas)
IOWA – Marriage Equality
MINNESOTA – Marriage Equality
Missouri
– Barrier v. Vasterling
Nebraska
– Nichols v. Nichols
North Dakota
South Dakota
9TH CIRCUIT
Appeals Pending
Alaska
– Hamby et al. v. Parnell et al.
Arizona
– Majors v. Roche
– Connolly v. Roche
CALIFORNIA – Marriage Equality
HAWAII – Marriage Equality
Idaho – Equality Decision
– Latta v. Otter – On Appeal to 9th Circuit
Montana
Nevada – Equality Decision
– Sevcik v. Sandoval – On Appeal to 9th Circuit
OREGON – Marriage Equality
– Geiger v. Kitzhaber – Equality Decision
– Rummel and West v. Kitzhaber – Equality Decision
WASHINGTON – Marriage Equality
10TH CIRCUIT
Appeals Pending
Colorado
– McDaniel-Miccio v. Hickenlooper
– Brinkman v. Long
Kansas
– Nelson v. Kansas Department of Revenue
NEW MEXICO – Marriage Equality
Oklahoma – Equality Decision
– Bishop v. United States – On Appeal to 10th Circuit
Utah – Equality Decision
– Kitchen v. Herbert – On Appeal to 10th Circuit
– Evans v. Utah
Wyoming
– Courage v. Wyoming
11TH CIRCUIT
Alabama
– Hard v. Bentley
– Searcy v. Bentley
– Richmond v. Madison County Clerk
Florida
– Grimsley and Albu v. Scott
– Brenner v. Scott
– Pareto v. Ruvin
– Huntsman v. Heavilin
– Shaw v. Shaw
Georgia
– Inniss v. Aderhold
posted by Tom Scharbach on
And a judge appointed by George W. Bush just overturned Pennsylvania’s marriage equality ban, ending his opinion by stating, ‘We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
At this point in the legal history of our struggle for equality, judges will rule in favor of equality unless the judges are “originalist” ideologues. With the collapse of religiously-neutral rationales for marriage discrimination, and the holding in Lawrence that moral approbation standing alone is not a constitutional basis for discrimination, the arguments put before judges for continuing marriage discrimination are increasingly flimsy and absurd.
The fact that Republican-appointed judges appointed after opposition to equality became something of a litmus test are deciding in favor of marriage equality is a strong indicator that those who continue to oppose equality are doomed to be consigned to the dustbin of history.
In my view (which could well be wrong), the only possible theory on which SCOTUS could decide in favor of marriage discrimination is on the grounds that the states have unfettered discretion to “define marriage” under the 10th Amendment. Both Justice Kennedy (“The significance of state responsibilities for the definition and regulation of marriage dates to the nation’s beginning.“) and Chief Justice Roberts (“The court does not have before it, and the logic of its opinion does not decide, the distinct question of whether the states, in the exercise of their historic and essential authority to define the marital relation, may continue to utilize the traditional definition of marriage.”) hit this point hard in Windsor, and it is possible, if unlikely, that SCOTUS could hang a marriage discrimination decision on that peg. But I think that is about all that is left in terms of legal rationale.
It will be interesting to watch Scalia in the SCOTUS decision, should it come to that (SCOTUS might not have to take up the issue if the circuit courts don’t divide on the issue; if all circuits decide in favor of equality, SCOTUS could avoid the issue by denying cert and letting the appellate decisions stand).
SCOTUS staying out is unlikely. More likely, as Carpenter pointed out, is that we’ll hit a stone on the path in one of the Circuits, probably the 5th Circuit, or even, possibly, the 4th Circuit, given the panel hearing the Virginia case. If any of the Circuits decide for marriage discrimination, then SCOTUS will be forced to step in.
So what will Scalia do when SCOTUS does step in? He’ll fume, of course, but other than eviscerate his fellow justices are legal morns and argue that the Supreme Court’s rulings since Griswold were decided wrongly under “originalist” judicial theory, what is he going to say? What rationale will he pin his opinion upon?
It will be even more interesting to watch Roberts. I can’t decide about Roberts. I can’t imagine that he wants the “Roberts Court” to be viewed like the “Taney Court”, so he may well join the majority. That would be interesting.
posted by Doug on
It is hard to imagine the SCOTUS deciding against marriage equality by throwing it back to the states. The resulting chaos would be enormous trying to undo all of those marriages that have already happened.
I suspect that we have reached a tipping point, number of same sex marriages and public opinion, and you cannot un-ring the bell.
posted by Tom Scharbach on
I agree, Doug. The bell has rung. Loving, Zablocki, Lawrence, Perry and Windsor rang it, and the Court cannot, at this point, issue a 10th Amendment ruling without creating legal chaos. The only question in my mind is whether the decision will be 5-4, 6-3 or 7-2.
posted by Tom Scharbach on
As a side note, the latest Gallup poll shows an historic high for marriage equality support among the American people – 55%. Even Republicans (30%) are starting to come around.
posted by Don on
We just announced our hearing on the motion for summary judgment in the Florida state court case. July 2 Judge Zabel will hear argument and likely issue a ruling shortly thereafter. She just ruled against the motion to intervene from Liberty Counsel.
I don’t see this taking that much longer. I can’t help but note the timing of her scheduling of the hearing. Could be coincidence, but I doubt it.
posted by Tom Scharbach on
The Governor of Pennsylvania, a Republican, has elected not to appeal yesterday’s equality decision. Pennsylvania becomes the 19th marriage equality state. If that isn’t a sign that the bell has rung (as Doug put it), I don’t know what is.
posted by Tom Jefferson III on
The United States Supreme Court has a lot of strong incentive to stay out of the issue — at least in terms of issuing another Loving type of ruling (marriage is a fundamental right and the like).