A panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled 2 to 1 against the freedom to marry (full decision here).
The decision overturns lower court rulings favoring marriage equality in Michigan, Ohio, Tennessee and Kentucky, and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down the federal Defense of Marriage Act.
With a split among the circuits, a practical question is whether the cert petitions/responses will be filed quickly enough for the Supreme Court to consider the matter this term, or whether it’s pushed to next fall (meaning ruling June 2016, which would be right in time for the presidential election). Many expect the latter, which could be unfortunate. The slow spread of marriage equality through the circuits has proceeded without any real backlash to speak of, with even conservative GOP governors accepting the verdicts. In fact, many took note of a significant GOP shift during the midterm election campaigns.
Another possibility: for marriage-equality proponents is to seek en banc review by the entire circuit. If that were successful, the move through the circuits could continue without risking a bad Supreme Court ruling, or even the backlash engendered by a good one.
More. Dale Carpenter analyzes what’s wrong with the Sixth Circuit decision (with links to earlier posts in his series of critiques).
47 Comments for “The Sixth Circuit”
posted by Tom Scharbach on
Both the ACLU and Lambda Legal have announced that they will petition the cases to the Supreme Court. The parties have enough time to file the petitions in time for the Court to put the cases on the 2014-2015 term, if the Court so elects.
It is very unlikely that the 6th Circuit will be asked for an en banc hearing.
Keep in mind that six cases are involved, and the parties involved in those six cases are represented by different counsel in each case, and that it is probable that the six will be appealed separately, although the timetable might be coordinated between the parties and their counsel.
For those of you who would like to follow the ins and outs of the cases as this moves forward, I recommend SCOTUSblog as a factual, accessible resource. The media accounts are largely useless when it comes to explaining the ruling from a legal standpoint, in my opinion.
I think that it would be helpful to read Judge Sutton’s opinion, as well as the dissent, as well. Here’s a link to the opinion itself.
posted by Tom Scharbach on
Another possibility: for marriage-equality proponents is to seek en banc review by the entire circuit. If that were successful, the move through the circuits could continue without risking a bad Supreme Court ruling, or even the backlash engendered by a good one.
We are not likely to get a favorable opinion from the 6th Circuit en banc, given the composition of the court. It is considered the second most social conservative circuit in the country (the 5th Circuit, with a high percentage of hard-core originalists is the most socially conservative) by the lawyers and law professors who follow the appellate decisions.
It is idle speculation, anyway. The cases are going to be directly appealed to the Supreme Court. No turning back now.
posted by Tom Scharbach on
Many expect the latter, which could be unfortunate.
Just out of curiosity, who are the “many” who expect that the petitions/responses won’t be filed in time for the Court to put it on the docket this term? It sound like a case of “If wishes were horses …” to me. Keep in mind that the 7th Circuit decision came down on September 5th, and the petition/responses were filed with a matter of weeks, and the Court denied cert on October 7th. One month, two days.
posted by Kosh III on
“Too many butthurt people wine and cry about not being able to may their butt slave.
Here’s a way not to get butthurt… don’t be gay!”
http://www.nashvillescene.com/pitw/archives/2014/11/06/sixth-circuit-upholds-tennessee-gay-marriage-ban
A common CONSERVATIVE view from Tennessee. Any more questions why gay people will not vote GOP?
posted by Tom Scharbach on
Having read Judge Sutton’s opinion a number of times, now, and given it some thought, I generally agree with the observations in The Economist’s “Democracy in America” blog about the weaknesses of his reasoning at key points in his legal argument.
With that said, I want to make an additional comment on the “animus” discussion from Judge Sutton’s opinion:
Judge Sutton is correct when he notes that the history of civil law marriage developed separately from the history of anti-gay animus, and in that respect, the history of marriage is distinct from the history of segregation and Jim Crow laws, which developed in order to deny African-Americans the benefits of citizenship.
But in making that distinction, Judge Sutton misses the point. What is at issue is not the history of “traditional marriage”, but the history of bans on marriage equality. The bans have a separate history from the history of the development of “traditional marriage”, and the question is whether the bans have a history that is linked, part and parcel, to the history of anti-gay animus.
Judge Sutton’s opinion, in this respect, is a case of “I have eyes but cannot see ..”, very similar to the “regulate procreation” rationale offered up as the last standing “rational basis” for reserving civil law marriage to straights. While it may be true that states have a legiimate need to offer civil law marriage to straights as a way of discouraging irresponsible procreation, it does not follow that the need to encourage straights to be responsible parents provides a “rational basis” for denying the benefits and protections of civil law marriages to same-sex couples and their children.
To argue that the one (encouraging straights to get married) provides a “rational basis” for the other (banning gays and lesbians from getting married) is where the “regulate procreation” argument falls flat on its ass. The two arguments are inherently disconnected, and to use the one as a “rational basis” for the other is slippery logic, indeed, and a denial of reality.
So it is with this section of Judge Sutton’s opinion. He conflates two distinct historical lines of development, and treats the one (the history of the bans) as if that history were idential with the other (the history of “traditional marriage”), and he does so by pretending that the former does not exist separately from the latter. It is slippery logic, indeed, and a denial of reality.
As the Washington Post article Stephen cited notes, Judge Sutton is “a favorite of the conservative legal establishment and frequently mentioned as a potential Supreme Court nominee under a Republican president“. He is as likely as not to become the next Justice nominated to the Supreme Court by a Republican president, should the Republicans win the White House in 2016 and a vacancy occur.
Judge Sutton did as good a job as probably could be done in marshaling the legal arguments against marriage equality; the weaknesses in his opinion, which are many, serve to illustrate how weak the legal arguments actually are.
posted by Jorge on
But in making that distinction, Judge Sutton misses the point. What is at issue is not the history of “traditional marriage”, but the history of bans on marriage equality. The bans have a separate history from the history of the development of “traditional marriage”, and the question is whether the bans have a history that is linked, part and parcel, to the history of anti-gay animus.
That’s always struck me as a weak argument. You’re fine if you refuse to recognize marriage, but you can’t write a law about it?
posted by Tom Scharbach on
That’s always struck me as a weak argument. You’re fine if you refuse to recognize marriage, but you can’t write a law about it?
A red herring, Jorge. Of course you can write laws about marriage. At civil law, that’s what marriage is — a set of laws establishing the rights and obligations created by the civil contract.
The question is whether you can write laws excluding a class of people, similarly situated to those you allow to marry, from marriage, without an objective, non-religious, rational basis for doing so.
posted by Jorge on
Okay, let me amend that.
But in making that distinction, Judge Sutton misses the point. What is at issue is not the history of “traditional marriage”, but the history of bans on marriage equality. The bans have a separate history from the history of the development of “traditional marriage”, and the question is whether the bans have a history that is linked, part and parcel, to the history of anti-gay animus.
That’s always struck me as a weak argument. You’re fine if you exclude a class of people, but you can’t write a law about excluding a class of people?
posted by Tom Scharbach on
You’re fine if you exclude a class of people, but you can’t write a law about excluding a class of people?
Jorge, it makes no difference. Exclusion of a class of people from civil marriage, while permitting a class of people who are similarly situated to enter into civil marriage, without a rational basis for permitting the one and excluding the other is what is unconstitutional.
It doesn’t make a difference whether the exclusion is by omission (that is, creating laws governing civil law marriage that permit only a permitted class to enter into civil law marriage) or commission (that is, laws explicitly banning the excluded class from entering into civil law marriage).
The result is the same in each case — one class is permitted to marry, the other not. In each case there is a ban, explicit or implicit.
None of this is germane to the flaw in Judge Sutton’s reasoning.
posted by Jorge on
I cannot agree with you. This country has never had marriage laws that even conceived of gay marriage as a possibility until very late in the last century. You cannot say that those laws are constitutional, and then laws designed to say “By the way, we got it right back then” are unconstitutional. They should be treated the same way.
Although on reflection I think it’s questionable which way they even the old laws should be treated. That’s what I think is the weakness in the 7th Circuit’s reasoning.
posted by Tom Scharbach on
I cannot agree with you.
Well, if you can’t, then don’t.
posted by Jim Michaud on
If it’s any consolation, the 6th’s opinions are the most overturned by SCOTUS than any other circuit. Correct me if I’m wrong, Tom, but is it true that if SCOTUS upholds this ruling (God forbid), it will only affect the 4 states (OH, MI, KY & TN)? All other previous bans struck down in other circuits can’t be “unstruck” (am I right)?
posted by Tom Scharbach on
Correct me if I’m wrong, Tom, but is it true that if SCOTUS upholds this ruling (God forbid), it will only affect the 4 states (OH, MI, KY & TN)? All other previous bans struck down in other circuits can’t be “unstruck” (am I right)?
An unfavorable ruling by the Supreme Court in the 6th Circuit cases would not directly abrogate existing favorable decisions in the 4th, 7th, 9th and 10th Circuits. The Supreme Court denied cert in those cases, and a cert denial means that the decisions stand regardless of the Court’s ruling in the 6th Circuit. However, that is a distinction without a difference. An unfavorable ruling in the 6th Circuit cases would almost certainly lead to lawsuits seeking to overturn the 4th, 7th, 9th and 10th Circuit decisions to bring the law in those Circuits into conformity with the Court’s ruling in the 6th Circuit cases, and eventually (depending on the precise language of the Court’s decision in the 6th Circuit cases), the bans on marriage could/would be reinstated in many of the states covered by those decisions.
As a reality check, though, I think that it is important to keep in mind that the Court, in denying cert in cases from several Circuits last month, knew full well that its decision would lead to thousands of marriages in a relatively short period of time. The Supreme Court is both a court of law and a court of equity, as are all federal courts. It is almost inconceivable that the Court would render a decision in the 6th Circuit cases that would invalidate (or more accurately, inevitably lead to invalidation) of the marriages that occurred in the states governed by the cases where cert was denied.
As Ted Olsen put it the other day: “I do not believe that the United States Supreme Court could rule that all of those laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed. To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.”
So I am not worried about the outcome in the Supreme Court, unless a vacancy occurs due to the resignation, incapacity or death of Justices Ginsburg, Kennedy or Breyer. If that happens, the Republicans will almost certainly block President Obama from naming a replacement during the remainder of his term, and in an eight-person Court, marriage equality will be up to Chief Justice Roberts.
posted by Don on
I agree with Tom’s assessment regarding “best opinion he could have written” if the court wasn’t going to legalize marriage. It’s a very artful dodge; non-opinion. And the dissent blisteringly points that out.
It tries to go for “not our job” but ignores the most basic job of the judiciary: constitutional protection of the minority against the tyranny of the majority. And it’s a co-equal branch in that respect.
Judicial activism is a great buzzword. But it doesn’t address that stopping legislative overreach into individuals’ rights is what it was designed to do.
Having been in one of the court cases, trying to “guess” what is going to happen next is nearly impossible. And I’ve been on the inside of one of these types of cases. No one could predict what has happened so far. This entire experience is simply unprecedented on so many fronts. Law schools and poli sci classes will be talking about this for decades to come.
posted by Tom Scharbach on
No one could predict what has happened so far. This entire experience is simply unprecedented on so many fronts. Law schools and poli sci classes will be talking about this for decades to come.
You bet. I have a close friend who teaches now, after a career in appellate advocacy, both in the Solicitor General’s office and in a widely respected national law firm. He’s argued quite a number of cases before the Supreme Court. We spent a couple of hours talking about the ins and outs of the cases the other day, and the issues presented are so varied that predicting the course that the cases will take going forward is next to impossible. The current situation is a law professor’s dream.
Lyle Denniston has an interesting look at the possible paths to the Supreme Court, although, since counsel in all six of the 6th Circuit cases have now apparently agreed to go directly to the Supreme Court, some of the options that Denniston considers are probably moot. The interesting and unpredictable factors are (1) when will the Supreme Court docket (this term or next), (2) what case or cases the Supreme Court might agree to hear, and (3) within the selected cases, what issues the Supreme Court will certify. Keep in mind, as Denniston points out, that the Court could certify other cases coming up the pipeline as well as the 6th Circuit cases. The path to a decision is very open at this point.
I have to confess that as much as impatient as I am to see “equal means equal” become law nationally, I am fascinated with how this is playing out. It seems like every time I say that something is unlikely (e,g, the Court’s decision to deny cert last month), that’s what happens.
So, as we go along the facts will unfold. Right now that only known facts are the the 6th Circuit has ruled, and counsel in all six cases plan to file a petition for cert directly to the Supreme Court, and soon.
posted by Houndentenor on
Isn’t it good that Obama was elected in 2008 and not McCain, otherwise we’d have two right-wing justices on the court instead of Kagan and Sotomayor and inevitable ruling would be against gay marriage.
posted by Jorge on
No.
posted by Lori Heine on
One of the things the social reactionaries are always screaming about is that the judiciary will not always act the way they want them to. It’s part of their proof that America has been taken over by evil “liberals” from outer space.
We cannot say, with any certainty, that simply because Republicans are appointing people to the courts, that means their appointees will all reliably vote against progress.
It just doesn’t automatically work that way. The Supreme Court justices are appointed for (at least theoretically) lifetime terms for a reason. Once they no longer need to worry about being fired for making the “wrong” decision, they sometimes get quirky and make the right one.
posted by Mark Peterson on
That’s true, but the record thus far speaks for itself. Of the 15 appeals court judges in 4th/6th/7th/9th/10th to hear the cases, nine were Democratic appointees and six were Republican. All 9 Democratic appointees voted for marriage equality. Only two of the Republican appointees did, and one of those was Richard Posner, who’s not exactly a typical Republican appointee.
posted by Tom Scharbach on
It just doesn’t automatically work that way. The Supreme Court justices are appointed for (at least theoretically) lifetime terms for a reason. Once they no longer need to worry about being fired for making the “wrong” decision, they sometimes get quirky and make the right one.
That’s true enough — Justice Warren is an example that comes to mind, as is Justice Black — but that is mostly true of Justices that do not have a strong judicial philosophy when appointed — judges of a pragmatic, non-ideological bent (think Souter, O’Connor, Kagan) rather than judges of a firm ideological bent (think Alito and Scalia).
In general, Justices who have a strong judicial philosophy when appointed don’t deviate too much from the judicial philosophy that they had when appointed.
posted by Houndentenor on
That used to be true. It doesn’t happen much any more. when it does the logic behind the decision (Roberts vote for ACA, Kennedy’s for gay rights in several cases) make sense in hindsight. (In many cases including Souter, conservatives appointed people who were more libertarian conservatives than modern big-C Conservatives and then were shocked at the results. In the case of Roberts, he tends to defer to the legislature and executive branch which the Bush administration loved but doesn’t always work in conservatives favor when a Democrat is in office.) I could go on. But Souter is the last time that someone drifted a great deal and he was appointed over 20 years ago and has already retired. The chances that McCain wouldn’t have grilled a prospective justice on gay marriage and other issues is nil. Yes, they all claim they don’t discuss specifics but that’s a lie across the board that no one actually believes.
posted by Tom Scharbach on
Judge Sutton would almost certainly be Justice Sutton if a Republican had been in office. Think on it.
posted by clayton on
I like the way Sutton admitted that anti -gay animus was behind many laws passed to restrict the actions of gay people, then argued that he shouldn’t overturn marriage bans because that would cheat gays out of the opportunity to make friends with the people who have been passing anti -gay laws.
posted by Houndentenor on
I just threw up in my mouth. (Not your fault, clayton.) We are all “friends” (in the Facebook sense) and related to people that we do favors for, help, advice , console and otherwise act in good faith towards people who go to the polls and stab us in the back. Fuck Sutton. And fuck whoever appointed him, voted to approve him and defends him. All of them. I’m sick of this bullshit.
posted by Francis on
I think, at least on some level, we’re ALL sick of this bullshit.
posted by Jorge on
I must have missed that part of the opinion…
Anyway, your post reminds me of my sister’s reaction when I described Pope Benedict’s old (2003) document on same-sex marriages.
You avoid this issue at your peril, and ours.
posted by clayton on
I like the way Sutton admitted that anti -gay animus was behind many laws passed to restrict the actions of gay people, then argued that he shouldn’t overturn marriage bans because that would cheat gays out of the opportunity to make friends with the people who have been passing anti -gay laws.
posted by clayton on
Stephen –time to write a new post. DeMaio ‘s victory just turned to a loss.
posted by Jorge on
You know, going to Judge Posner’s 7th Circuit decision (gay marriage bans are unconstitutional), it is very well argued and written. It explains abstract legal principles in plain English, and very often starts from the principles at which the opposing arguments are strongest. “Formally these cases are about discrimination against a small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children.” The decision also assumes some very conservative principles. Morality as a legitimate basis for withstanding constitutional scrutiny?
But I think its treatment of the Indiana appeal relies too much on some very weak reasoning. Judge Posner often does something I find very annoying: he concludes a certain argument is disingenuous or arbitrary just because he believes the state should take a certain course of action that makes logical sense to him, based entirely on an assumption he makes that the other party does not accept. You can’t do that. You need to ask the party why, and make them answer on their own terms. Many, many places in the 7th Circuit decision suffer from an important unasked question or blind assumption. The most notable one is the infertility argument. Justice Scalia pointed out in the oral argument on one of the marriage cases the example of the lecherous and very old Strom Thurmond. I would suggest that giving an incentive for non-procreative couples to stay together may provide social benefits both for the couple and by preventing children from adulterous affairs with old men. This is not credited.
I also find the argument that the out of wedlock birth rate would be expected to decline or remain stable over an 18 year period solely because of same sex marriage to be extremely disingenuous.
I find the decision’s treatment of the Wisconsin appeal, the one so battered at oral argument, to be almost flawless. Very effective timing of the Loving v. Virginia citation.
From Sutton’s 6th Circuit decision (gay marriage bans are constitutional), I unsurprisingly find little fault in it upon first reading, but I’ll point out a few things.
It frames the case at the beginning in a way that’s totally different from how the 7th Circuit decision frames it (“This is a case about change–and how best to handle it under the United States Consitutiton.”) Getting a good attorney to craft a good argument is very important in a lawsuit.
It uses the one-line 1976 Baker decision very effectively.
It also turns on its head the argument that new laws are suspect for singling out gays. Instead the decision credits new developments, stating that the new laws are part of the same overall legislative interest in making social policy decisions as the old laws are. Its one weakness in my view is its definition of anti-gay animus is limited to the past 100 years instead of crediting all of history; one can argue that even ancient marriage laws reflect invidious discrimination.
In terms of rational basis, I think Judge Sutton effectively rebuts Posner’s focus on the details of the marriage law provisions (can first cousins and infertile couples marry, etc.) by explaining it is the government’s longstanding role to make those decisions in the first place.
The decision overall strikes me as making a strong argument for a weak result. It seems designed to preserve questions for appeal for the Supreme Court to decide.
posted by Jorge on
I also find the argument that the out of wedlock birth rate would be expected to decline or remain stable over an 18 year period solely because of same sex marriage to be extremely disingenuous.
Probably should read solely because of same sex marriage bans.
posted by Don on
The political nature of the judiciary (supposedly the apolitical branch) does demonstrate the unwillingness of the right to recognize our basic civil rights. And DeMaio’s ultimate defeat (really sorry, Stephen) also points to an ugly reality: they will vote to stop even Republican gays. NOM came out hard against him. And he was backed by a major financial backer of Prop 8.
If there were no anti-gay animus behind NOM, they never would have called for electing Peters. And it’s likely enough to have tipped the election. (gay lefties aside)
Which is why we still seem to lose along ideological lines. I agree that if it weren’t for McCain losing, we wouldn’t have marriage equality right now. At least the Supreme Court would have probably come back with a smackdown opinion even if we had all the earlier judges ruling so decisively in our favor.
I do hope that DeMaio’s loss doesn’t lead to more Log Cabin/GOProud types shying away from running. Because that will put us even further behind for the next phase of our equality: tolerance, if not acceptance.
Right now, it’s still okay to say “no, gay people should be legally shamed into non-existence” by one of the two major parties. It’s in their platform. While legal equality may be on its way, finally. We are far from the place of tolerance of our existence by a huge swath of the country. And shutting guys like DeMaio out of the tent ensures there will be no inroads.
posted by Jorge on
The political nature of the judiciary (supposedly the apolitical branch) does demonstrate the unwillingness of the right to recognize our basic civil rights.
Hmm? What about the longstanding conservative position that their role is to stand athwart history yelling “Stop!”? That’s not about not recognizing basic rights so much as it’s about going about it in a way that’s cautious and will cause the least harm. If such a position is embodied in the judiciary, the result will not be an unwillingness to recognize basic rights, but rather an insistence on not doing so through methods that erode other basic rights and duties.
And I thought the Republican party platform only addressed marriage? I didn’t realize it suggested that gays have no role in society at all and should remain in the closet?
You really can’t make these assumptions that people believe as you do, Don.
posted by Lori Heine on
“It’s in their platform.” Actually, no, Don. As Jorge points out, it isn’t.
What is in the GOP platform is certainly bad enough. Though they’re too duplicitous to express it that way, they favor government redistribution of wealth, via a rigged tax code, from single people gay and straight to married heterosexuals. They also favor permitting the majority, via state power, to determine whether an entire segment of the population may marry for the same reasons straights do, or whether they may not.
We need to deal with the realities of the situation, instead of engaging in hyperbole and hysteria. I suppose statists are so accustomed to doing this that they consider it their birthright.
Libertarians are accustomed to being challenged every time we say anything. We are “craaaaaazy.” But accusing a major political party of wanting to disappear everybody in the LGBT population is pretty crazy in itself. People hear this sort of rhetoric, and they decide “progressives” are untrustworthy.
If we stick to the facts, we can force a debate on the issues. If we scream, call names and throw mud, we can’t.
posted by Mike in Houston on
While the hind rump of the GOP may not want to “disappear” LGBT people like they do in other places around the world, it’s quite clear that they really do want LGBT to not exist — at least not as people, and certainly not as equal citizens.
Hence you get the Texas GOP platform pushing “reparative” therapy… and the FRC writing the national party platform.
To the “faithful” in the GOP, gay people don’t exist — only gay sex exists and transgender people are sick individuals who mutilate themselves… which is why they actively oppose public accommodations for LGBT people — simultaneously arguing that “discrimination doesn’t exist” and these protections are “special rights based on behavior, not innate characteristics”.
posted by Don on
the rump won’t advocate stoning of gays, but they won’t denounce it either. that is honestly where we are.
posted by Lori Heine on
It’s exactly right that the “hind rump” of the party wants to do those things. It is not true that all other Republicans do.
So why disappear them?
posted by Don on
The federal judiciary (whether originalist or maximalist) believes it can only interpret the constitutionality of our legal system. that’s all I meant regarding basic rights and upholding those.
what a particular justice believes that means leads to the variance in the decisions, IMHO.
posted by Don on
—You really can’t make these assumptions that people believe as you do, Don.
I don’t believe that. So I’m not sure why it is you think I’m making assumptions that people “believe as I do.” I’m not even sure I know what you’re talking about.
My statement simply reflects the belief that the vast majority of base of the republican party believes that gay people should be vanished. And they defend reparative therapies, not just marriage between men and women. While my term “platform” was inartful, I believe it is disingenuous to suggest that the republican party is not working toward us being shoved back in the closet. No legal protections, and preferably to simply disappear altogether.
Mike hits on the strain of what I’m saying. To hide behind the semantics and claim there is no objective of the party faithful to make us “go away” in any fashion they can, including closets, lack of legal protections, reparative therapy, or whatever else works, is ridiculous.
posted by Jorge on
My statement simply reflects the belief that the vast majority of base of the republican party believes that gay people should be vanished.
That’s is completely ridiculous.
It’s as ridiculous as a suggestion would be by the right that the left wants Christians to vanish, and for much the same reason. It’s all about the role people want religion and homosexuality to play in public, and especially in politics. That you might find such a view incompatable with civil rights does not mean either 1) that it is, or 2) that the right therefore does not believe in civil rights. That is what I mean when I say you cannot make assumptions that people believe as you do, and then make negative statements about their actual motivations.
My statement simply reflects the belief that the vast majority of base of the republican party believes that gay people should be vanished. And they defend reparative therapies, not just marriage between men and women.
So what?
Reparative therapy has led to suicide in the distant past, while heterosexual marriage had led and still leads to rape, murder, and enslavement. In fact marriage between men and women is probably the single most oppressive, most unjust, most genocidal social institution ever created. Why should we allow society to defend one and seek its reform, while prohibiting all mention of defense and reform for the other?
Can marriage be good at all? What has been done, what has to be done to make it so? And what has to be done to make reparative therapy serve the cause of good? Even if marriage is good, why allow society to keep it if there are better ways? Indeed, why even bother to join in an institution and subject the gay and lesbian communities to, if not all of the old evils, enough of the current ones to cause undue suffering?
You are ultimately taking a position against the premise that homosexuality is morally wrong, and against the premise that people who believe homosexuality is morally wrong should be represented in politics or in public. That is what I believe (so you see, I do wander into assumption game sometimes, too) is the logical conclusion of your concern that the Republican party defends reparative therapy.
posted by Jorge on
I have a poster at work citing a particular line from Romeo and Juliet in which Juliet’s mother tells her that she was either pregnant with Juliet or had actually given birth at 13 (Juliet’s current age), and she encourages her 13 year old daughter to get married. By our standards that’s child rape, but those were the standards that existed in the place and time William Shakespeare wrote of, and I have little doubt Juliet’s parents knew it for what it was. I think they tried to work with it the best they could for Juliet’s benefit, but they were loyal to the social custom first. I think that was the wrong decision, but I would also say that it means something.
posted by Don on
Lori, you assume I am “statist” and “progressive.” Neither would be true. As you so fiercely demand that everyone here see that you are not labeled unfairly as a libertarian because apparently no one here can grasp the concept, it seems particularly unfair that you quickly grab labels and apply them to me for positions I do not hold, nor have espoused here. If everyone who criticizes the Republican party and it’s pretzeled positions on gays is statist and progressive, then the label now apparently belongs to you as well.
posted by Lori Heine on
Don, if you will re-read my last comment, I did not say that you were specifically a progressive. It is, generally, a statist presumption that the GOP holds views that are across-the-board anti-gay. That is not true. I certainly don’t have to agree with the Republicans on every item concerning gays to understand that.
Wild swings at them don’t connect with anybody who knows actual Republicans. I know many who are deeply frustrated with the party because it opposes same-sex marriage, and because so many in the party hold anti-gay views. They have not yet succeeded in transforming the party. I don’t think it’s realistic to assume that’s going to happen overnight.
Does the GOP hold “pretzeled positions?” It certainly does. Up until very recently, so did the Democrats. But I try to bring Republicans around to speaking up more boldly against their party’s anti-gay stands. As I don’t know any who actually oppose equality for LGBT’s (or at least, who will admit to it), I don’t know how much headway I can make with them.
I’d just advise against hysterical-sounding rhetoric about what people, as a group, believe or what they stand for. They aren’t powerless, but they have a tendency to feel that way. All I can do, when I speak with them, is what I do–which is remind them that Democrats eventually forced change in their party, and that they must do the same in the GOP. Rhetoric that suggests they’re all trying to annihilate gays is hardly helpful; it makes them think those who say such things are either liars or loons.
posted by Aubrey Haltom on
Lori,
It is easy to agree with you that a blanket denunciation of a political party does not accomplish what might be intended.
But I think it is also necessary to state the facts – if you read the National Republican Party Platform of 2012 you will find that Republicans, as a Party, want to disallow any legal recognition of us, our families, our relationships. And the Party platform calls for a constitutional amendment to accomplish those goals.
Not only our families and relationships, though. They want to remove us from serving openly in the military, and they want to restore this discrimination in a legal form.
The Platform was written by Tony Perkins of FRC – who has posted comments on his web site letting us know that he’s not really wanting to install old testament punishments for lgbt (i.e., execution), but he thinks it’s neat that other countries are trying to do so, and wishes we could follow suit. (Yeah, follow that logic).
And this national platform is progressive compared to other state GOP platforms.
Calling out the official positions of the Republican Party does no disservice to those Republicans who oppose them. It only states the Republican Party’s official position re: lgbt, our families, our relationships, our service.
Denying that position – by omission or to avoid confrontation – seems to me the more problematic way to go.
How can you change something you won’t acknowledge in the first place? If the Republicans you know are so disappointed and/or upset with these social positions of the GOP, then they need to take it up with the GOP.
And contributing to GOP anti-gay candidates, or to the party itself, in spite of any discomfort with the party’s social platform is a disingenuous way of avoiding responsibility for that very same appeal to discriminate.
posted by Lori Heine on
Aubrey, I agree with much of what you’re saying. However, since I have never either agreed with anti-gay Republicans or supported them, I don’t see that charge as applying to me.
Sorry, but not voting for Democrats who merely uphold the status quo in no way constitutes “supporting” anti-gay Republicans.
Libertarians disagree with progressives that merely voting for more of the same old same old is the discharge of a pious civic duty. We believe that the system is a self-perpetuating loop. It’s a closed loop, that needs to be broken. We believe that the only way to do that is to stand against the entire system and work for its demolition.
Voting for “progressives” who push intrusive and alienating government intrusions, or for go-along-to-get-along, dishwater-bland “centrists” who cave in to everything Republicans want to do, is a perpetuation of the system–either way. Neither option does anything but perpetuate it.
I’m a registered Democrat because I’m a left-leaning libertarian. There’s almost nothing about what the Republicans do that I agree with. I must work for change within the Democratic Party. I talk to Republicans and try to reason with them when I can, but I have about as much chance of interacting with a social conservative as I do of sighting a Dodo bird.
posted by Tom Scharbach on
While the hind rump of the GOP may not want to “disappear” LGBT people like they do in other places around the world, it’s quite clear that they really do want LGBT to not exist — at least not as people, and certainly not as equal citizens.
I think that the rump wants to create a world in which are invisible, legally and culturally. Opposition to legal recognition (in any form, marriage or civil unions or domestic partnership benefits) is just the tip of the iceberg. The rump doesn’t want us mentioned in history or social studies books. The rump wants “don’t say gay” laws. The rump doesn’t want us adopting or raising children. The rump doesn’t want us to get custody of our children in divorce. The rump doesn’t want our children in their private schools. The rump doesn’t want to serve us in their businesses. It goes on an on.
What the rump wants is a return to the pre-Stonewall world. It won’t happen. We won’t give it to them, and we’ve won over the better angels of the American public.
posted by Mike in Houston on
Unfortunately Tom, the better angels of the American public didn’t vote in the midterms and the Dan Patricks and company won — not just here in Texas, but across the board.
And as long as homocons like Stephen keep giving aid and comfort to that rump — all in the name of some jihad against “progressives” — they’re not going to go quiet into the night.
posted by Tom Scharbach on
Unfortunately Tom, the better angels of the American public didn’t vote in the midterms and the Dan Patricks and company won — not just here in Texas, but across the board.
A lot of them voted, many of them for social conservatives.
It is just that “equal means equal” is way down the list of importance for them, just as it is for Stephen and other “libertarian” Republicans. As Stephen pointed out in another thread, with the perception that the marriage equality battle is all but won at this point, straight voters don’t have a reason to make “equal means equal” a voting issue.
But that doesn’t mean that the straight voters who are pro-equality to one extent or another are going to let the hard-core social conservatives that control (aided and abetted by so-called “libertarian” Republicans like Stephen) the Republican Party get away with too much in the way of stomping on gays and setting the woods on fire. We’ve seen that in other contexts, when we didn’t have the majority of Americans on our side, and it won’t change.
And as long as homocons like Stephen keep giving aid and comfort to that rump — all in the name of some jihad against “progressives” — they’re not going to go quiet into the night.
Of course they are not going to go quiet into the night. Gays and lesbians disgust social conservatives, and for them is is a voting issue. The mob just announced a campaign to bring Senator Portman down, just as the mob worked to bring down candidates Wehby, Tisei and DeMaio. Tony Perkins, Brian Brown, Bryan Fischer and their kind are in full-scale revolt at this point, and are more than willing to grind the Republican Party to dust if need be.
And, for what it is worth, Stephen and the other so-called “libertarian” Republicans who provided excuses and apologia for them won’t go quietly, either. We’ll be hearing a lot more drum-pounding and spin about how progressive gays and lesbians are allied with social conservatives in a Elders of Zion like plot to destroy the forces of goodness and light.
It will be rich, to say the least, to watch Stephen spin this next round.