From Gay City News, on this week’s U.S. Seventh Circuit Court of Appeals hearing on same-sex marriage bans:
One suspects, however, that [Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson ] did not count on getting the sort of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by Ronald Reagan in 1981.
Posner, a father of a school of legal analysis known as the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, though observers following the trend of marriage equality decisions over the past year might have predicted this result in light of his record of relentlessly pursuing facts and logic in his decisions. Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents—about 3,000 of them in Indiana, he noted—Posner pressed Fisher to explain why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples. The Indiana solicitor general could give him no real answer.
The report concludes: “The Seventh Circuit seems clearly poised to join the Fourth and the 10th in ruling for marriage equality.”
More. Slate has audio excerpts.
Furthermore. Bart Hinkle writes, with a wink, For Straight Marriage, the End Is Near. Apparently, Phyllis Schlafly agrees.
62 Comments for “Increasingly Indefensible”
posted by Tom Scharbach on
One suspects, however, that [Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson ] did not count on getting the sort of tough cross-examination they got from Richard Posner …
If that’s true, then both were fools of the first order.
Judge Posner is well-known for pushing hard on appellate lawyers appearing before him, and both Fisher and Samuelson are experienced appellate advocates with sufficient experience arguing before the 7th Circuit to know better.
posted by Don on
It is more likely that the reason is that they have no good legal argument. Florida AG Pam Bondi has the best one yet: Don’t make me argue this in my court system. Wait for SCOTUS to make it clear for all of us.
She’s got nuthin. Well, except an election this year and she really wants this to go away. it’s her best shot at making it go away.
None of these people want to be in court arguing this. It’s that much of a legal loser.
posted by Tom Scharbach on
The report concludes: “The Seventh Circuit seems clearly poised to join the Fourth and the 10th in ruling for marriage equality.”
Neither Fisher nor Samuelson were able to provide a single substantive rationale, despite being given more than ample opportunity by the three judges, for the 7th Circuit to rule any other way. A lot of attention is being given to the questions that were asked (particularly by Judge Posner), but the court’s decision is going to be driven by the paucity of answers, not by the questions.
Almost all of the questions asked were 101-level questions — really basic stuff — and neither Fisher nor Samuelson could handle them. To my mind, that’s because the arguments being pushed at this point are “ridiculous” and “absurd” and there is no way to handle the 101-level questions without drawing attention to the fact that the arguments are both ridiculous and absurd.
posted by Mark on
I looked at Tim Samuelson’s background (https://www.linkedin.com/in/timsamuelson) from his linkedin page. From his performance on the audio of the hearing, I assumed he was in his early 30s and maybe this was his first big case. Instead, he’s listed as a major player in the AG’s office, “providing legal advice to the State and its agencies, and representing them in litigation and on appeal in lawsuits relating to constitutional law and governmental authority.”
This is the man who didn’t know that interracial marriage bans were statutory, and not some accidental deviations of the common law?
posted by Tom Scharbach on
Both Fisher (Indiana’s Solicitor General) and Samuelson (Deputy Director, Special Litigation & Appeals Unit, Wisconsin Attorney General’s Office) are experienced appellate lawyers. Both took a drubbing from all three judges.
The orals were a disaster for the anti-marriage forces, exposing the circular, irrational and logically disconnected nature of the current arguments in favor of preserving marriage inequality. To my mind, the 7th Circuit orals were the appellate equivalent of the Prop 8 and Michigan trial level proceedings, which exposed the fact that the anti-marriage forces had no reality-based factual case to make. We are now at a point where no legal or factual argument remains that can be defended with a straight face.
I don’t know which case or cases will be considered by SCOTUS. But I do know that what has been true in the Circuits will be true at SCOTUS — the advocates defending marriage discrimination will have no plausible answers (answers, yes, plausible answers, no) to the 101-level questions that will be asked in the orals at SCOTUS.
I think that the anti-marriage forces have reached the end of the road, and I’m glad to see it. We might lose in the 6th Circuit (Sutton is the judge who will make it 2-1 one way or the other), and we might lose in the 5th Circuit (which has a majority of very ideological, very conservative judges), but we will not lose on the merits any more. An ideologically neutral judge, taking into consideration the law and the facts, is going to decide in favor of marriage equality.
posted by Aubrey Haltom on
Here’s a post from Posner’s blog – dated May 2012 (immediately after Obama ‘came out’ for equality).
I’m surprised the states’ attorneys didn’t read Posner’s comments on marriage from 2 years ago.
(Tom – read the blog post. How did the AGs miss this?)
“It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.”
http://www.becker-posner-blog.com/2012/05/homosexual-marriageposner.html
posted by Tom Scharbach on
(Tom – read the blog post. How did the AGs miss this?)
I read Judge Posner’s blog regularly, and have for years. I’ve been aware of the post. Another similar post exists from 2013. The blog posts are extensions of a book Judge Posner wrote 20 years ago (Sex and Reason, 1994), in which he did an economic analysis of homosexuality, along with just about everything else about sex. It is a most interesting book, and caused a lot of talk in the University of Chicago area (where I lived at the time) for quite a while.
I don’t know whether Fisher or Samuelson read the blog or not, but I don’t think that it would have made any difference to them. The cases brought forward by Indiana and Wisconsin did not assert a religious/moral rationale.
Judge Posner’s blog posts (and Sex and Reason, for that matter) are not about the law, or the legal issues presented by the marriage cases. All of them give us insight into Judge Posner’s personal thinking, but none of them determine his legal thinking. All that can be inferred from the blog post is that Judge Posner (along with the vast majority of sitting judges) rejects the idea that our laws should be based on religious theology. Beyond that, the posts (and the book) don’t discuss any issue directly related to the cases at hand.
The reason that the lawyers representing Indiana and Wisconsin hit the meat grinder in the 7th Circuit is that Judge Posner, in his long judicial career, rules in line with the thinking of the so-called “Chicago School of Law and Economics”, of which he (along with Judge Frank Easterbrook, a classmate of mine) is a founder. The “Chicago School” holds that legal decisions should be empirical, based on fact and reason, grounded in economic cost/benefit, rather than ideological. It was that way of looking at the law that was behind Judge Posner’s repeated questions about the relative costs and benefits regarding adoption.
The heart of the problem, though, is that the anti-equality forces are out of facts.
All of the available evidence points against them at this point — in contrast to the situation when the fight over marriage equality began two decades ago.
Look back as recently as 2008. At that point, it was assumed that plausible legal arguments existed that gays and lesbians were unsuitable parents, were an active danger to children, were disproportionately child molesters and abusers, and that children raised by same-sex couples fared worse than those raised by straight couples. All of those “facts” were destroyed in Prop 8 and Michigan trial courts. At this point, the best evidence is that gays and lesbians are as good parents as are straights.
Now, knowing that, look at the absurd arguments put forth in the 7th Circuit.
Once the pro-forma arguments about tradition and other non-starters were swept aside, what was left? An argument that because a “fleeting moment of passion” can result in pregnancy, and straights are notoriously irresponsible when it comes to caring for their spawn, government has a rational purpose in providing marriage as an incentive for straights to stay together and raise the “unintended children.” Gays and lesbians, the argument goes, aren’t in that situation. Gays and lesbians think and plan in order to become parents, and are, as a result, likely enough to be responsible parents that the state need not provide marriage for them.
Now that is an absurd argument. While it may be true that straights are hopelessly irresponsible breeders, and need a “the institution of marriage” in order to protect their children from their biological parents, it does not follow that the children of gays and lesbians would not also benefit from the protections of marriage, and are harmed by its absence.
It was that disconnect that Judge Posner was pushing hard, demanding some basis/evidence/facts on which the states justified the conclusion that it was necessary to ban same-sex marriage in order to realize the state’s stated rationale of promoting straight marriage. In it was in that effort that the states came up absolutely empty. The states had nothing.
Are the blog post and Judge Posner’s questions during the orals connected? Yes, of course.
Judge Posner, like any thoughtful observer who has followed the marriage equality issue, knows full well that religion-based moral approbation was the driving force behind the anti-marriage amendments and the continued fight to preserve a ban on marriage equality. Justice Scalia made that crystal clear in his Lawrence dissent.
But moral approbation is not, since Lawrence, a constitutional grounds to discriminate on this issue.
So Posner was pushing the states’ lawyers to come up with something else — anything else — that would provide a rationale for the ban on marriage equality, and the states could not do so.
The states could not do so because the factual arguments disappeared at the trial level in the Prop 8 and Michigan cases, and because the “straights need a nanny” argument, while arguably true, doesn’t provide a logical basis on which to deny marriage equality.
It is becoming just that simple.
posted by Jorge on
The “Chicago School” holds that legal decisions should be empirical, based on fact and reason, grounded in economic cost/benefit, rather than ideological.
This reminds me of one of former Supreme Court Justice Steven’s concurrences when he said that perhaps easy cases make for bad law (the more common expression is that hard cases make for bad law). Why are fact and reason, the actual economic cost/benefit even relevant, even when there is no legitimate case in the first place? The Constitution does not require that legislatures be logical, factual, empirical, in their public policy findings.
It is only once the court decides with its logical, factual analysis that there is something different about race and sexual orientation that causes a need for it to be suspicious and overcautious of laws based on race and sexual orientation, that deferrence to the legislature, courts need to MYOB, gets thrown out the window.
Defenders of marriage laws prohibiting gay marriage must defend against the one-hit-kill that is heightened scrutiny at all costs. That means you need to prove your law is not based on discrimnatory animus, even unintentionally. You need to prove there is no history of discriminatory animus against gays that requires special protection, and you’re certainly not going to get such a difficult to achieve finding if your law is an anti-gay law.
posted by Jorge on
former Supreme Court Justice Steven’s
Oh, dear, that one’s embarassaing. Stevens’s! With the bow tie! The bow tie’s making a comeback among black men, you know. I love it!
posted by Tom Scharbach on
Two thoughts, Jorge:
(1) While I suspect that heightened scrutiny is the test that will ultimately be applied by the Supreme Court, given the long history of legal suppression of gays and lesbians, we have reached the point where marriage discrimination laws cannot meet the “rational basis” test.
Take the “feckless straights” rationale, deployed by Wisconsin and Indiana. It is the only argument put forth so far that has met success in the courts (it formed the basis of state court decisions in Indiana, New York and Washington, and the two federal appellate dissents).
The argument goes that straights are so morally irresponsible that would walk away from the task of raising their children if the state didn’t provide financial incentives in the form of marriage. The argument goes on that gays and lesbians are responsible parents who raise their children and don’t need marriage as an incentive.
I’ll stipulate to both “facts”. The need to bribe straights into responsible parenting is a rational basis on which a legislature could enact marriage for straights. But is it a rational basis on which to deny marriage to gays and lesbians raising children? In a word, no.
(2) If the heightened scrutiny test is the test used, it is not a hard task to demonstrate the animus. Animus can be shown by tracking the statements made by the “traditional marriage” forces during the anti-marriage amendment campaigns (e.g. Appling’s “I think we have been extremely tolerant to let them live wherever they choose.”), but also by simple common sense. The “moral approbation” rationale itself, in a reality-based analysis, demonstrates animus. The Bible is replete with examples of moral approbation relating to marriage (e.g. remarriage after divorce is adultery) but the conservative Christians focus on only one, ignoring the rest.
Conservative Christians could hardly demonstrate animus more clearly: “I’m against allowing gays and lesbians to marry because Jesus told us “one-man, one-woman”. I can ignore what Jesus said about divorce and remarriage, of course, and I could ignore what Jesus said about “one-man, one-woman” too, if I didn’t hate gays and lesbians so much.”
posted by Tom Jefferson III on
North Dakota is in the 8th Circuit. For some reason the Midwest basically got dumped into two different circuits — 7th and 8th.
Their is a lawsuit against the North Dakota state ban going through the system, and the state attorney general is trying to defend it in court with the “the-people-said-so-and-we-should-respect-that” argument.
posted by JohnInCA on
Do you know what I think is most interesting about all this?
A few years ago Miller and his ilk were warning of backlash from pushing the marriage thing too hard. Constantly. Every time a case was filed there were these doom and gloom proclamations that “we”† were shooting ourselves in the foot because it would cause a backlash.
No one is saying that anymore.
________
†Ignoring that there was no organized “we” in any of this.
posted by Tom Scharbach on
That’s true, of course. Ten years ago, IGF was replete with “backlash” posts from Stephen, Jon Rausch, Dale Carpenter and other pro-equality conservatives.
Typical of the breed was Stephen’s “More Marriage, More Backlash?” post from February 2005:
Stephen’s “backlash” concern was substantially identical to the concerns of the HRC, ACLU and Lambda Legal, that is, that legal progress could get too far out in front of public opinion and create an upsrising among American conservatives. The fear was that the conservative uprising would overwhelm the American instinct toward fairness.
To be sure, the proposed strategies differed in the detail — Stephen proposed to avoid the courts entirely until public opinion had changed, making slow, incremental political gains through civil unions, then, little by slowly, to marriage, while the HRC, ACLU and Lambda Legal proposed an incremental approach through the courts, making slow, incremental gains through a carefully devised “state-by-state” strategy in the courts, moving little by slowly toward a SCOTUS decision at an unspecified future date. But in terms of moving “little by slowly”, placing a high value on avoiding “backlash” rather than gaining ground, the approaches were substantially identical.
We all recall the opposition that arose when the Prop 8 case was filed. The Prop 8 case turned the “civil unions compromise” and “state-by-state” strategies on their collective heads. Criticism of David Boies and Ted Olson was intense — the argument was that the case would hit SCOTUS in 2013, before the building blocks for a favorable SCOTUS decision were in place — and it took a lot of ground-up pressure from gays and lesbians before the so-called “LGBT leadership” caved in an got on board. As it turned out, the “too fast, to early” criticism was never tested; SCOTUS decided the Prop 8 case on the basis of standing and did not address the core question.
It is easy for those of us who have been in the “push hard, let the chips fall” camp to ridicule Stephen and his “little by slowly” compatriots at the HRC, ACLU and Lambda Legal. We turned out to be right.
But we turned out to be right with the help of a boatload of good luck.
What would have happened if SCOTUS had not been able to dodge the bullet on standing in the Prop 8 case? We don’t know. What would have happened if the anti-equality forces had come up with credible witnesses in the Prop 8 and Michigan cases instead of empty-suit blowhards like Blankenhorn and Regnerus? The “factual” underpinning of the anti-equality case might not have disintegrated so completely. What would have happened had Diana Sykes or one or more of the other conservative ideologues on the 7th Circuit been appointed to the panel instead of Judges Posner, Williams and Hamilton? We might be looking toward a loss rather than a win, and instead of being destroyed, the legal arguments of the anti-equality forces might still have some life in them going forward.
We have been very, very, lucky.
All that having been said, we are where we are, politically and legally, in large measure because hundreds of thousands of ordinary gays and lesbians rejected conventional wisdom, embraced “equal means equal” and kept the pressure on the “leadership”, and even more important, because those hundreds of thousands came out to their friends, families, neighbors and co-workers.
I think that looking back, when historians write about the gay rights movement from 1970 to 2015, the one person who will have turned out to be dead-on right was Harvey Milk:
Milk instinctively understood what was needed to win this fight, and he was an early, important and inspirational advocate of the strategy that ultimately won the fight. We all owe him, big time.
And a word of caution. The fat lady (SCOTUS) has yet to sing. If any of the five justices most likely to vote with us (Breyer, Ginsburg, Kagan, Kennedy, Sotomayor) dies or is incapacitated before an opinion is issued, the Court may delay the decision or, depending on where Chief Justice Roberts comes out if the Court consists of eight justices, we might lose yet. So don’t celebrate. Work.
posted by Jorge on
I missed a good one, eh? I’ll get to it.
A few years ago Miller and his ilk were warning of backlash from pushing the marriage thing too hard. Constantly. Every time a case was filed there were these doom and gloom proclamations that “we”† were shooting ourselves in the foot because it would cause a backlash.
No one is saying that anymore.
I strongly disagree with you. They are still saying it over the wedding cake and photograph cases, and that backlash has actually happened. It hasn’t worked so far in Arizona, but it has happened. It has happened on an issue much more limited and lenient than marriage per se. That is worth examining to figure out why the gay marriage movement has been so successful.
posted by Jorge on
Oh, yes, and if I remember correctly, the most recent hate crime statistics in the US (maybe it was New York?) were a little unsettling.
posted by Tom Scharbach on
More. Slate has audio excerpts.
Money shots are entertaining, but I would nonetheless encourage you to listen to at least one (take your pick, Indiana or Wisconsin) of the full oral arguments. The money shots come within the context of a story line, and it is the story line, not the money shots, that demonstrate the legal bankruptcy of the anti-equality arguments and will be important going forward.
To get to the full transcripts, go to the 7th Circuit’s oral arguments site, and search by case number. The case numbers are:
14-2386 Baskin v. Bogan (Indiana)
14-2526 Wolf v. Walker (Wisconsin)
posted by Mike in Houston on
It’s not “increasingly indefensible” but “increasingly obvious that it’s always been indefensible”.
We’re long past the tipping point on this — and even the slow-moving judiciary has pretty much caught up to the public consensus on marriage equality. It’s only the entrenched ideologues (Tea Party, Christianists, GOP base) holding fast in their gerrymandered Congressional and state redoubts that are left.
It’s a mopping up operation that we’re in for the next round — which in many cases can be more dangerous because the other side has nothing to lose. (And it’s also why the anti-LGBT crowd is largely starting to emigrate abroad… Russia & Africa are their post-war South America.)
posted by Doug on
I wish it were a mopping up operation but Tom is right. The SCOTUS could still change everything. I think there would be a strong backlash and such a decision would damage the Court’s image and reputation, but never underestimate the mindset of a threatened conservative old man.
posted by Houndentenor on
Here’s how this has gone down for the last 20 years or so. In a ballot initiative campaign the religious right makes unfounded and unsupportable (not to mention completely illogical) claims. Gay people and their allies put up underfunded and often inadequate defenses of these claims (to be fair it takes far longer to explain the logical fallacies and erroneous “facts” in these ads than it does to simply spout off a lot of nonsense). And then it went to the courts where people can’t just say anything they want and have it go unchallenged (unless the attorneys are complete morons) and every one of these talking points that worked with an uninformed and openly prejudiced populace falls apart under cross examination. It shouldn’t be surprising that conservative as well as liberal judges are not having any of this nonsense. This is just doing the job and if they were gullible enough to fall for this crap they shouldn’t have been appointed to the bench in the first place (see: Scalia, Alito, Roberts, et al.).
posted by Don on
There is a pretty clear mopping up that we can count on. Hearts and minds. More and more people who are still uncomfortable with gay are becoming less and less so.
Some people have deep religious beliefs that they will never shake and anti-gay is baked into that belief system. Those people won’t change. But the more we get talked about, the more people discover they’re less and less scared of us. My parents generation were told unequivocally that we were child molesters and sexual degenerates with thousands of sexual partners. We came out and they simply cannot believe that is true of us anymore.
Anita won her battle. But she’s lost the war.
posted by Wilberforce on
I’m glad we’re winning on this.
But I still have other priorities. I think we should have gone for civil unions, then put most of our weight into enda and hiv prevention. Civil unions would probably have been an even bigger winner, and enda and hiv are more important than marriage.
But as usual, the selfish middle class got their way. Oh well. At least it’s turning out ok.
posted by Houndentenor on
Everyone who is against gay marriage was also against civil unions. We couldn’t get those passed either. Remember Vermont 2000? It would have been the same battle requiring the same resources for a lot less in the end. No, that wasn’t the way to go. It would have been a smart compromise for the right to offer gays and I think the majority of us would have taken it at about any time up to 2009 or so. But they STILL aren’t in favor of civil unions so why is this still a topic for discussion. Why are liberals so eager to offer compromises to conservatives only have them throw them back in our faces and move their demands even further to the right? No more. I agree that it’s odd that we are getting marriage before ENDA, but that’s also the fault of the right. We’ve had public support for a nondiscrimination bill since the 90s.
posted by Wilberforce on
Please spare me the high flown principles. It was a strategic choice that made more sense at the time. Polls showed that there was more support for civil unions. I think it was much more. And here in WA State, we had unions with all the rights of marriage. We could have put it through with a lot less trouble. But at the time, the self-destructive crowd were crowding the debate as always with self-righteous appeals to Universal Justice for the Unwashed Proletariat, or whatever the rallying cry is these days.
And you’re blaming the right wing for enda. Seriously? After our own leaders destroyed it over trans activists’ complaints. Please.
But I’m sorry. What’s past is passed. And talking strategy in gay circles is never a good idea because everyone is obsessed with demanding glorious eternal justice for all creatures even unto the lowly field grouse.
I’m also sorry for the combative tone.
posted by Houndentenor on
I never had a problem with civil unions. Frankly it was more than I ever thought we’d get until about 2000. But civil unions faced the same opposition as marriage and I saw no effort from the right to reach out and make that compromise happen.
And yes, I’m blaming the right for the failure to pass ENDA. Yes there was that little fiasco last time but it wasn’t going to pass anyway. There no point even talking about it until Democrats control both houses of Congress again. And yes, trans rights should be included. They are people too and deserve rights like everyone else.
posted by Wilberforce on
Of course trans rights should be included. But at that time, we could have gotten gay rights, then worked on theirs later. And who knows when such an opportunity will come again. I’m glad you’re so ready to give away our rights for abstract principle.
But I’m sorry for interfering with the glorious, uncompromising demands for utter perfection that we’ve come to expect from mainstream gay society.
posted by Tom Scharbach on
In Wisconsin, anyway, the point of the amendment was to put both civil unions and marriage in the same coffin, burying both in the same grave:
What was true in Wisconsin was true elsewhere. After the intial round of anti-marriage amendments in 2004, almost all subsequent amendments banned civil unions as well.
posted by Don on
Those who pleaded for civil unions were trying to be civil. They never had any power on the right. My brother is one of them. Why on earth kick this hornet’s nest? People just can’t handle it.
But people saw religious conservatives for what they really wanted: our abolition. To make us stop existing by asking us to find “jesus” and suppress the urge to be gay as their religious texts mandate we do (debatable).
That’s how we cleaved them apart. Those who do not buy that we must stop being gay are leaving the fold. We have to finish that process.
I have always believed marriage is the Rosetta Stone of our cause. Once that is there, we will come out in greater numbers. We will file for company benefits. A lot more people will have to see us in smaller and smaller cities that have managed to think this is a big city problem.
ENDA may never happen. And I’ve always seen gay people supporting HIV as a problem, not a solution. Gay white men remaining at the forefront of the effort ensure that it will always been seen as a gay, white disease. But nobody listens to me on that one.
posted by Houndentenor on
I always found the entire civil unions line from politicians to be incredibly insincere. It was mostly used by spineless liberals like John Kerry and conservatives who wanted to appeal to bigots without sounding bigoted. If everyone who claimed they they were for civil unions but not full marriage rights, they could have made civil unions happen. They didn’t. Words are cheap. It’s actions that count.
posted by Jorge on
I’ve already taken the time to lament what should have been done. It’s not that important to me right now. The lamenting, I mean.
Now, I feel like we’re already getting 70% of what civil unions would have given, with the rest still open.
I was just thinking today that it was a just a couple of years ago when YouTube deleted, due to viewer complaints of offensive content, a video of a mother talking about having two gay children due. They reinstated it after widespread outrage. You ever watch that one?
posted by Tom Jefferson III on
Again, trying to develop a serious and consistent rationale for why the state — in terms of secular marriage — should care about the sex of the prospective couple is pretty much impossible.
Procreation — is used less and less in the court of law, because it was never a consistent argument being used. Not being able or willing to procreate has not been a requirement for marriage for some time.
Much of it comes down to arguments about “tradition” and “the people voted on it”. Hmm.
If you look back, it is certainly interesting how many people would claim to be “pro-civil unions”, even through their was a snow ball chance in he– of civil unions going anywhere.
I suspect that much of the “I support civil unions, but not gay marriage” platform was generally quite insincere about civil unions, but didn’t want to come off as being too mean in front of the cameras.
posted by Tom Scharbach on
I quietly point out a fact: Of the 30 anti-marriage amendments, 21 banned civil unions and/or domestic partnerships as well.
Eight of the 13 amendments passed in 2004 banned both marriages and civil unions and/or domestic partnerships; four did not. After 2004, the amendments (with the single exception of Tennessee, passed in 3008) banned both marriages and civil unions and/or domestic partnerships.
The “civil unions compromise” might or might not have been a good strategy, but it never had a chance.
posted by Doug on
Why are conservatives so willing to settle for second best. Is their desire for lower taxes and more money really worth self respect? I just don’t get it.
posted by Jorge on
It is in the nature of conservatives to compromise when it’s clear to them their principles are not in terrible danger and they respect the principles of the other party. Many conservatives are ex-liberals who are sympathetic to the desire for a better world, while others are young and have different principles in the first place. That’s why opposition to gay marriage is eroding so quickly.
posted by Houndentenor on
That’s good to hear. Should I expect a pro-marriage equality plank in the 2016 GOP party platform?
posted by Jorge on
Maybe if gay radicals stop suing people for saying they’re Christian.
posted by Doug on
Who is being sued for saying they are Christian?
posted by Jorge on
The people who say their religious beliefs prevent them from endorsing gay marriages.
posted by Doug on
No one is being sued for their thoughts or beliefs. . . they are being sued for their actions. These are a subset of Christians in general, not all Christians.
We do not live in a theocracy and the evangelicals have no business trying to impose their beliefs, through legislation, on everyone else.
posted by Houndentenor on
Since not all Christians are anti-gay, it is nonsensical to claim that anyone is suing people simply for “saying they’re Christian”.
posted by Houndentenor on
Also, no one has been asked to “endorse” anything. That’s just another wingnut talking point.
posted by Jorge on
No one is being sued for their thoughts or beliefs. . . they are being sued for their actions.
You are making a distinction without a difference. If an employer were to refuse to hire someone because they observe the Sabbath on Saturday, that would be religious discrimination even though the proximate cause of the discrimination is based on a religious practice rather than an expression of belief or the employer’s knowledge of their religious identity.
You’re going to have to stand by the merits on this one.
I think the people who are suing people who will not endorse their gay weddings are acting very theocratic. I do not believe that gay couples have any business trying to impose their beliefs on anyone else. But to the extent they are getting favorable judgments in court, this country has become a theocracy. And like all theocracies, there is something perverse about it.
This needs to end.
Why are conservatives so willing to settle for second best. . . . I just don’t get it.
*Rolls eyes.* Although you may as well aim for “this needs to work.”
Also, no one has been asked to “endorse” anything. That’s just another wingnut talking point.
Your decision on whether or not to make it easier for the Republican party include marriage on its 2016 platform is yours and yours alone. The conditions are as I stated: keep the radicalis in check and prevent them from making the “wingnut talking points” a reality.
So far, that has not happened.
If you want a certain result but are not willing to take the steps necessary to make it happen, then you should join me in eating the dirt that has been sown and like it.
posted by Tom Scharbach on
The conditions are as I stated: keep the radicalis in check and prevent them from making the “wingnut talking points” a reality. So far, that has not happened.
And exactly how is Houdentenor to keep the “radicals in check”? Tie them up and throw them in the river, perhaps?
posted by Doug on
NO ONE, and I repeat NO ONE is asking anyone else to endorse marriage equality. If baking a cake is considered an ‘endorsement, then allowing an LGBT couple to live in your neighborhood is also an endorsement. Read the definition of ‘endorsement’. Selling something makes no endorsement.
posted by Tom Scharbach on
If baking a cake is considered an ‘endorsement, then allowing an LGBT couple to live in your neighborhood is also an endorsement.
Naw. Allowing gays and lesbians to live in your neighborhood (as long as its not next door) is an exercise in Christian tolerance.
As Julaine Appling, CEO of Wisconsin Family Action and Dairy State superChristian, put during Wisconsin’s anti-marriage amendment debate, ““I think we have been extremely tolerant to let them live wherever they choose.” It was one of her signature lines.
posted by Jorge on
And exactly how is Houdentenor to keep the “radicals in check”? Tie them up and throw them in the river, perhaps?
Maybe you should ask him. I’m not the one proposing that the Republicans put a pro-marriage equality plank in their 2016 party platform. If he’s got a better compromise counter-offer I’d like to hear it.
NO ONE, and I repeat NO ONE is asking anyone else to endorse marriage equality.
I didn’t say marriage equality. I said gay marriages. Nobody is talking about GLBT people moving into people’s neighborhoods, either.
If baking a cake is considered an ‘endorsement, then allowing an LGBT couple to live in your neighborhood is also an endorsement.
No, that is not correct. You are trying to use your own definitions and standards to interpret other people’s religious and ethical beliefs and practices and how they are impacted. That is an exercise in pure self-interest.
If an individual or a business owner believes that it is important to draw a line between what is and is not an endorsement of gay marriage based on their own religious beliefs and how they apply them,
then you must start with the definition of religious belief. This implicates something that is particular to the individual who has that belief. Some Muslim women believe that modesty requires them to use the headscarf. Some do not. Some Christians believe that charity requires them to give money at church. Some believe it requires them to give elsewhere.
By starting from the definition of religious belief, you then reach the point that were and how the individual or business draws the line between what actions are and are not and endorsement of gay marriage is itself a matter of religious faith. Different people who identify as Christian follow and practice the same beliefs and tenets differently, because since at least the Protestant Reformation, the Christian religions have left it to the individual to participate in understanding what God’s tenets mean in the individual circumstances of their lives in their place and time.
If you are going to insist that your beliefs are better than other people’s beliefs, that is fine on a subjective level. But then you don’t get to have a claim in how people act ethically in accordance with their beliefs or in how the law should respect that.
posted by Doug on
Words have meaning. You cannot have everyone defining everything in their own way, that’s anarchy and society will not work. The courts and society work by defining words and actions not by everyone making up their own definition. There also has to be some consistency as well.
posted by Tom Scharbach on
Why are conservatives so willing to settle for second best. Is their desire for lower taxes and more money really worth self respect? I just don’t get it.
I can’t, obviously, speak for conservatives. My guess is that many pro-equality conservatives (e.g. Stephen, Rauch) hoped that social conservatives would acquiesce in a “deal” under which gays and lesbians would obtain legal equivalence but not legal equality, and that the “deal” would speed cultural acceptance of gays and lesbians. Maybe that’s right, and maybe that’s wrong, but that seems to have been the assumption behind the Blankenhorn/Rauch “civil unions compromise” and other similar initiatives.
For my part, I never believed that social conservatives would acquiesce in the “deal”. I didn’t believe it in 2005 because I followed what social conservatives were saying and doing during the 2004 amendment fights, and I didn’t believe it in 2009 after the next round of amendment fights. The evidence — that is, the wording of the amendments — did not support the idea. I don’t believe it now.
It seemed to me that it would take just about as much effort to obtain legal equivalency (that is, civil unions) as it would to obtain legal equality (that is, marriage). The amendments would have to be undone in each case. The court battles would need to be fought in each case. The millions upon millions of dollars, and the thousands upon thousands of hours of work would have been the same in each case.
Given that, I thought at the time and still do, why go through all that and come up short of equality? I decided that gays and lesbians shouldfight for equality, rather than equivalency. Conservatives like Stephen, Carpenter and Rauch thought otherwise. So be it.
We did what we did and we are where we are. Civil unions are a failed idea from the past.
posted by Houndentenor on
Most homocons seem to live in deep blue cities where all the Republicans and conservatives they meet are people who want lower taxes or who are more libertarian minded. They don’t seem to interact much, if at all, with hard-core social conservatives like those of us in the deep red areas do every day. As a result they grossly underestimate their tenacity. They empowered them to win elections and now virtually every red state is run by these loons. Good luck taking their power away from them in the party.
posted by Houndentenor on
Ruh-roh!
http://www.utsandiego.com/news/2014/aug/29/campaign-burglary-demaio-investigation/
posted by Tom Scharbach on
Furthermore. Bart Hinkle writes, with a wink, For Straight Marriage, the End Is Near. Apparently, Phyllis Schlafly agrees.
Although Schlafly’s attack is ostensibly an attack on libertarians (most of whom who have long helds that “Government does not have the authority to define, license or restrict personal relationships.” and would eliminate civil marriage altogether), it is, in reality, a masked attack on Christian conservatives who have taken up the call to “get the government out of marriage”. Infighting among Christian conservatives, now that all but the deaf, dumb and blind among them realize that the train is coming down the track, horn blaring, is intense, and I am hearing more and more Christian conservatives discussing the idea that marriage should be privatized, be converted to a religious institution rather than a function of the government.
In short, an increasing number of Christian conservatives are saying, in effect, “If civil law marriage can’t be governed by our theology, then let’s get rid of it altogether.” While that line of thinking runs parallel to libertarian thought about civil law marriage, Christian conservative opposition to government-regulated marriage is born of entirely different motivations.
It is odd. I am currently reading Carl Rowan’s legal/political biography of Justice Thurgood Marshall, “Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall“. The reaction of those among the “religious right” now adopting the libertarian call for privatization of marriage is eerily familiar.
Marshall and the NAACP started the front assault on school segregation in South Carolina (Briggs v. Elliott, the first of five cases consolidated into Brown v. Board). In response to the lawsuit, Governor Jimmy Byrnes, with the backing of the South Caroline legislature, announced that if the courts banned racial segregation in South Carolina schools, the state would eliminate the public school system. Other prominent politicians in the Deep South threatened that result in their states, too, and while the states never made good on the threat, the school desegregation cases were the spark that ignited the so-called “Christian Academy” (popularly, and more accurately, described as the “seg schools”) movement, in which Jerry Falwell and other Christian segregationists were so prominent, and which gave rise, in turn, to the so-called “religious right”.
The “Christian Academy” movement did not eliminate public schools in the Deep South, but in many areas the movement effectively removed white kids from the public school system. The pattern of segregation remains strong in many areas today.
I don’t know where the internal fighting among conservative Christians over civil law marriage will end up. My guess is that the “If civil law marriage can’t be governed by our theology, then let’s get rid of it altogether.” crowd are just being their usual two-year old, petulant selves, and that nothing will come of it. I do not expect to see civil law marriage eliminated, despite the synergy between libertarians and some Christian conservatives. Marriage is too important to too many people.
posted by Tom Scharbach on
Hinkle: Marry a horse? Of course, of course.”
I wonder why social conservatives ignore entirely the greatest threat to one-man, one-woman “traditional marriage” — the coming explosion of marriage between Republicans and their corporations, now that corporations are “persons”.
posted by Throbert McGee on
It’s not the mere baking of the cake that constitutes an “endorsement” of same-sex marriage; it’s decorating the baked cake with two little handmade marzipan grooms and pink fondant triangles and rainb0w-colored bunting and vaguely gay-sounding Scriptural quote (“Thy love to me was wonderful, passing the love of women.” — 2 Samuel 1:26″) that might constitute such an “endorsement.”
Generally speaking, a wedding cake is a creative artwork made on commission and customized to the buyer’s specifications — not an off-the-shelf item like brownies or éclairs.
I would agree that it would be ridiculous for a conservative-Christian baker to claim that selling brownies or éclairs to a gay couple for their wedding reception — or, for that matter, selling them a “generic,” non-customized, minimally decorated, off-the-shelf wedding cake — amounts to an “endorsement” of gay marriage.
But to the extent that the cake will be thematically customized to reflect the occasion (namely, a same-sex wedding), the baker is being asked to ENDORSE that occasion — which is, naturally, going to be a problem if the baker regards same-sex marriage as an anti-Biblical oxymoron and heresy.
Not in all cases — I think sometimes they’re just acting like attention-whores.
But, for example, if a same-sex Catholic couple tries to hire a conservative Catholic baker to make their wedding cake, and the baker declines on the grounds that the Catholic church requires gay Catholics to be celibate and prohibits them from entering a same-sex marriage (even if the ceremony is to be held in an Episcopalian church or at city hall), and the couple then threatens to sue the baker for violating the state’s public-accommodation law… well, then, yes — it’s the gay couple, and not the baker, who are acting obnoxiously theocratic. (Insofar as they’re trying to bring secular law into their personal feud with Church teachings.)
posted by Doug on
If the cake is being baked to the customers specifications, it is not an endorsement of anything other than following directions. Baking a cake is ‘commercial’ transaction not a ‘religious’ transaction unless the bakery holds itself out as a baker of religious cakes and even then it’s a stretch.
Commercial transactions are just that. . . commerce, nothing more.
posted by JohnInCA on
You know, I really enjoy the lengths to which people will go to create a false equivalency.
You know what the baker made for my wedding cake? A cake and some cupcakes. The hubby-to-be went in, tried their samples for cake and frosting, settled on a small cake and a bunch of cupcakes. No decorating the tank with pink fondue, cake toppers, or random quotes. We chose from the same options they offer everyone.
*That* is what you’re arguing is an “endorsement”. Not getting something fancy and custom, not getting something above-and-beyond. But the same menu choices as every other customer.
posted by Houndentenor on
It’s hilarious to hear these bakers refer to as artist as if they are DaVinci or Rembrandt with icing. Nonsense. There’s definitely a craft to this, but it isn’t art.
posted by Houndentenor on
Bullshit. I can’t tell you how many things I had to participate in on Wall Street that made me want to puke but it was my job and I did it or quit (which I couldn’t afford to do). We all do things we don’t like. Most of us anyway. All of us without trust funds or wealthy spouses. Boo hoo, you had to do something you didn’t like at your job. That’s a job. If you don’t like it quit and join the homeless people. Funny how we never read this nonsense from liberals who work in conservative industries. It’s just as bad, but according to the right, only certain kinds of religious views count as “morals”. Everyone else just has to suck it up? Bullshit.
posted by Aubrey Haltom on
“it’s the gay couple, and not the baker, who are acting obnoxiously theocratic…”
I disagree. The same sex couple is merely asking the baker to adhere to that particular state’s public accommodation law. It doesn’t matter the denomination, nor the ‘flavor’ of the religion.
I might not take a baker to court, but I can understand why a same sex couple would ask that a business follow the state law.
Any “personal feud with Church teachings” really isn’t at issue here.
I’ve appreciated some of your arguments in the past, Throbert (though appreciation does not denote agreement). But this one is a real stretch, imho… 🙂
posted by Mike in Houston on
We went through these rather dense contortions during the HERO debate here in Houston… even getting as ridiculous as to having the anti-HERO crowd saying that public accommodation laws would force Jewish bakers to make swastika cakes.
So here is the deal:
If you refuse to sell me a swastika cake because you don’t sell swastika cakes, that’s not discrimination under the law.
If you sell swastika cakes, but won’t sell to ME because I’m gay — that’s discrimination under the law.
Substitute “wedding” for “swastika”… and there you go.
What I fail to understand is why this seems to be so hard to grasp… or why some conservagays want to acquiesce to an extreme narrow minority of Christianists who want “special rights” to legal carve outs for themselves but who scream bloody murder if anyone calls them on their BS.
posted by Kosh III on
http://www.huffingtonpost.com/2014/09/03/louisiana-gay-marriage_n_5760012.html
A Reagan appointed judge in a RED state upheld marriage inequality.
Maybe Stephen or Andrew Sullivan or other avowed conservatives would like to move from their comfy liberal enclaves to say, Ebenezer Louisiana, and rejoice over being able to live in the conservative paradise they so desperately want to inflict on the rest of us.
posted by Tom Jefferson III on
If you walk into a bakery and buy what is on the shelf, then I cannot see that being much of an religious or political endorsement (for the seller or the buyer). Frankly, I cannot image too many situations where that sort of customer would get into a political or religious discussion with the baker or — more likely — the guy behind the counter making min wage (or less).
Maybe, if the customer wanted it ‘custom made’ to certain language or other specifications. Although, I someone buys ‘Bob’s cake’ and then — this someone — puts two plastic wedding men or women on the cake, does Bob have a right object? I can see where this could get a bit silly.
posted by Houndentenor on
In most cases and in most places where I have lived, I never knew the politics or religious beliefs of most of the owners of the small businesses I patronized. (There were a few exceptions and they were almost always far right wingers.) But now that I live in Deep Teabagistan, people go out of their way to let you know that they are Christians (translation: fundamentalist Christians) and Republicans and don’t you forget it. Personally I’d keep all that to myself in the business since even in areas where one religion or political party is dominant, you still run the risk of losing about 40% of your business. But I obviously don’t think like the Teavangelicals.
posted by Mike in Houston on
Whenever I see one of those fish symbols, I check to make sure my wallet is intact.