Going for Broke

The U.S. Supreme Court agreed to decide whether all 50 states must allow gay and lesbian couples to marry. “The court’s announcement made it likely that it would resolve one of the great civil rights questions of the age before its current term ends in June,” says the New York Times.

I believe it would have been preferable if all the appellate circuits had supported the freedom to marry, and for a while it looked like that might be happening—until a November decision from a divided three-judge panel of the Sixth Circuit in Cincinnati ruled otherwise. The Supreme Court could have requested that the full Sixth Circuit rehear that case and rule, perhaps signaling displease with the panel decision. But that’s not the route the high court took.

Now it will be all (as most court-watchers expect) or nothing (a devastating reversal of the circuits that found a constitutional right to marry).

On a positive note, Time finds evidence Evangelicals Are Changing Their Minds on Gay Marriage. Well, some of them, at any rate. And some is better than none, with more likely to follow, eventually leaving just a hardcore rump of rejectionists. Not that they should be forced to bake us cakes!

More. I’ve made this point before, but the New York Times now agrees:

The news Friday that the Supreme Court will rule on same-sex marriage brought elation from gays and lesbians…. But another group also saw a possible reason to celebrate if the court does indeed rule that way: Republicans.

If the high court resolves the issue as expected in June, it could deliver a decision that has the benefit of largely neutralizing a debate that a majority of Americans believe Republicans are on the wrong side of—and well ahead of the party’s 2016 presidential primaries.

43 Comments for “Going for Broke”

  1. posted by Tom Scharbach on

    As Stephen notes, the Supreme Court just granted cert in all four 6th Circuit cases.

    The following is a little background.

    The four cases are:

    Tanco v. Haslam (Tennessee) — Questions: (1) Whether a state violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution by depriving same-sex couples of the fundamental right to marry, including recognition of their lawful, out-of-state marriages; (2) whether a state impermissibly infringes upon same-sex couples’ fundamental right to interstate travel by refusing to recognize their lawful out-of-state marriages; and (3) whether this Court’s summary dismissal in Baker v. Nelson is binding precedent as to petitioners’ constitutional claims.

    Obergefell v. Hodges (Ohio) — Questions: (1) Whether Ohio’s constitutional and statutory bans on recognition of marriages of same-sex couples validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution; and (2) whether Ohio’s refusal to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state violates the Full Faith and Credit Clause of the U.S. Constitution.

    Bourke v. Beshear (Kentucky) — Questions: (1) Whether a state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment by prohibiting gay men and lesbians from marrying an individual of the same sex; and (2) whether a state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment by refusing to recognize legal marriages between individuals of the same sex performed in other jurisdictions.

    Deboer v. Snyder (Michigan) — Question: Whether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry.

    The Court consolidated the four cases and limited oral argument to two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? The Court allotted 90 minutes for argument on the first question, and 60 minutes for argument on the second question.

    It is interesting that the Baker v. Nelson (presented in Tanco) and the “full faith and credit” question (presented in Obergefell) have fallen by the wayside. Of the two, the Baker drop is important, because it signals that the Court no longer considers Baker precedent worth discussing.

    In order to squeeze the case in this Term, the Court also set a compressed briefing schedule, as follows: February 27 (Petitioner’s Merit Brief), March 27 (Respondents’ Merit Brief), and April 17 (Reply Briefs). The order did not set the date for oral arguments, but Supreme Court Rule 25 requires that the last brief be submitted no later than 7 days prior to oral arguments, so the most likely dates are April 27, 28 or 29.

    We will hear a lot of commentary and speculation about the Court and the decision that it will render in June or July. The tea leaves are being studied and read all over the media as we speak. While I agree that a favorable decision is more probable than not, I caution that the outcome is not at all certain.

    It is not, though, exactly a roll of the dice at this point. The Court has allowed marriage equality to become a fact on the ground in 20 +/- states since October, and public opinion (which is technically irrelevant but undoubtedly influences the Court in the sense that the Court does not usually get out too far ahead of public opinion in major cases) now runs reasonably strongly (the latest polls I’ve seen cluster between 55-60%) in favor of marriage equality. Both those indicators suggest to me that the Court is ready to rule and the public is ready for the ruling.

    Stephen mentioned that the Court could have remanded the cases to the 6th Circuit for reconsideration, and did not. That suggests to me that the Court considers it time for the Court to issue a definitive decision.

    The Court could also have held the cert petition, and set the oral arguments over to the October Term. That would have had the advantage of allowing the 5th and 11th Circuits to rule before the Court heard the 6th Circuit cases.

    Because most knowledgeable observers think that a favorable ruling is likely in both the 5th and 11th Circuits, the fact that the Court chose not to delay its decision while two additional decisions were rendered (putting the 6th Circuit decision into the category of “legal outlier”) is an additional indicator, in my view, that the Court thinks that the time for a favorable nationwide decision has come.

    • posted by Houndentenor on

      I hope you are right that the outcome will be favorable.

    • posted by Tom Scharbach on

      I hope you are right that the outcome will be favorable.

      I hope I’m right about the outcome, too, Houndentenor, because (although Stephen is technically wrong when he suggests that a negative decision would be a ” reversal of the circuits that found a constitutional right to marry”) a negative decision would create a goddamn mess, legally and politically, that would endure for a decade.

      I think that the indicators we have available point toward a favorable decision, but you never know what is going to happen when the Supreme Court hears a case.

    • posted by Jorge on

      I agree 100% with Tom S, except of course that I’m the opposite side on these cases. This is not all or nothing, it’s all or parry. If the Supreme Court overrules the Circuit courts, both sides will have taken half damage.

  2. posted by James in Chicago on

    No, they shouldn’t be forced to bake a cake for those tax-payers, whom they dislike and who make their business possible, and they won’t be. They can shut their doors and go out of business instead. A cake is no more an act of speech than a shoe is if it says nothing in words nor is commerce a religious activity.

    • posted by tom Jefferson 3rd on

      Technically, Stephen is wrong. If a employee objected to gay wedding cakes, but the employer had no objections then the religious freedom of the employer is what would matter.

      I can see the need for certain faith-based exemptions, under the terms I have made here.but let’s at least be honest and say that this scenario only cares what the boss wants, not the worker.

      • posted by clayton on

        I will concede the need for faith -based objections if and only if they apply to all faith -based objections, and not those only against LGBT people. But I don’t think we really want to live in a country where Catholic pharmacists can refuse to issue contraceptives, Baptist landlords can evict tenants for possession of alcohol, Jewish wwaiters can refuse to serve anyone who orders bacon, or Muslim mechanics who refuse to fix a car for a woman because of a firmly held belief that women shouldn’t drive.

        • posted by James in Chicago on

          That’s where it all logically leads, Clayton – to an absolutely dysfunctional society where everyone has become a law unto himself based on ‘sincerely held’ religious belief.

        • posted by Tom Jefferson III on

          Again — only the actual owner of the private business would be able to make a First Amendment claim in terms of faith based exemptions to rule (although the Civil Rights Act of 1964 does include religion, so it could get a wee bit messy….

          It (any applicable exemption) would have to be limited by the size of the business (self-employed or small business owner only). This is not terribly new…most employment/housing civil rights laws tend to kick in when the business has a certain number of employees or a certain number of rental rooms.

        • posted by Houndentenor on

          I had this argument with someone just last week. She was claiming that no one should have to do something on a job that violates their religious beliefs. That must have sounded nice to her as she typed it, but in reality that is a nightmare. We’ve all had to do things that made us uncomfortable and our choice was often to do them or quit. It’s one thing to be free to practice your religion. It’s another to force everyone else to acquiesce to your personal beliefs no matter the inconvenience that may cause to the employer or ( more likely) one’s coworkers.

        • posted by clayton on

          Someone in Wyoming has just introduced a religious liberty bill that basically would allow anyone to discriminate against anyone else so long as they claimed religious belief. It is House Bill 82. Sounds like the slippery slope has indeed come to us.

          • posted by Tom Scharbach on

            It is Wyoming HB 83, not 82. The bill meets the three-part “equal means equal” test:

            Religion-neutral – the bill protects both non-religious as well as religious moral conscience.

            Issue-neutral – the bill applies to all laws of the state.

            Class-neutral – the bill does not single out any class or classes of citizens for special treatment or special discrimination.

            The bill also eliminates the “sincerely held belief” requirement, which gets the government out of the business of determining which beliefs are “sincerely held” and which are not. The sole tests are “substantial burden”, “compelling interest” and “least restrictive means”, all of which are objective, rather than subjective, standards.

            I think that this is the first bill I’ve seen yet that is worth real discussion.

            I think that this is the first

      • posted by James in Chicago on

        It seems to me that religious objections are only relevant in the case of something else that is essentially religious in nature and this is not true of legally recognized marriage in the United States. If it were, then obviously the marriages of atheists and agnostics would not be recognized by our government. The real objection of anti-gay bakers, florists, photographers, etc. ought to be directed at those churches and synagogues that perform same-sex weddings and, object away!, but this is completely beyond the purview of American law.
        You’re correct, of course, that libertarianism is solely concerned with the rights of the capitalist with no real regard for the laborers and consumers without which capitalism couldn’t exist. Ayn Rand world, where everyone but the Titans of Industry are so many wretched ants at the picnic.

  3. posted by Clayton on

    Good point James. Why should bakers and florists get protections that aren’t extended to shoe stores ( the shoes might be worn at a gay wedding), car washes (the car might be driven on a gay honeymoon), or dentists (the smile might show up in a gay wedding announcement) ?

    • posted by craig123 on

      As Stephen wrote in an earlier post:

      “I also liked Taranto’s description of the kind of slippery slope arguments that “starts with something seemingly benign and leads by steps, usually of declining plausibility, to 1930s Germany or 1950s Mississippi.” LGBT activists that mock arguments that predict marriage equality must inevitably lead to a right to marry your dog are cheerleaders for arguments that allowing traditionalist religious believers not to bake same-sex wedding cakes (note: they are willing to make any other kind of cake for gay customers) will lead promptly to sexual-orientation segregation.”

      Obviously, baking a cake with two grooms or taking photos of the marrying couple kissing is different from selling shoes (but then, you of course know that). So, would you require a Muslim baker to make a cake with an image of Mohammed? Well, you probably would.

      • posted by clayton on

        Craig, you apparently haven’t read the text of the “religious liberty” bill being proposed in Virginia. It any business owner the right to refuse to serve LGBT people so long as the refusal is based upon a sincerely held religious objection. That isn’t a slippery slope. Its the bottom of the ditch.

        • posted by Tom Scharbach on

          FYI, here’s the Virginia Legislative Information System track on the Virginia bill, summarized as follows:

          Obtaining or renewing government-issued licenses, etc.; conscience clause. Provides that a person shall not be required to perform, assist, consent to, or participate in any action or refrain from performing, assisting, consenting to, or participating in any action as a condition of obtaining or renewing a government-issued license, registration, or certificate where such condition would violate the religious or moral convictions of such person with respect to same-sex marriage or homosexual behavior.

          I have no doubt that we will hear much said in Virginia about protecting Muslims bakers from having to scribe the Prophet Mohammed’s likeness on cakes, and protecting Jewish caterers from having to roast pigs for David Duke rallies, and African-American bakers from having to decorate hooded cakes for the Klan, and much more nonsense, but “religious freedom” in this case, as in almost all other cases to date, comes down to protecting discrimination against gays and lesbians, and gays and lesbians alone.

          I wonder why. I wonder why conservative Christians (and their Republican allies the politicians pushing these bills) have no interest in protecting other religionists. I wonder why conservative Christians (and their Republican allies the politicians pushing these bills) have no interest in protecting Christians who have religious objection to remarriage after divorce. I wonder why conservative Christians (and their Republican allies the politicians pushing these bills) have no interest in protecting Christians who have religious objection to other behaviors described in Christian literature as immoral. I wonder why Christians who are not obsessed with homosexuality (however large or small that group might be) don’t enter in the public debate. I wonder about a lot of things.

          But mostly I wonder what is it about same-sex marriage and homosexuality that is so special and so heinous in the Christian worldview that conservative Christians insist that they be protected against it, but nothing else?

          I have no idea, being an outsider to that misbegotten religion. But it is striking.

        • posted by Houndentenor on

          And how exactly is the court to measure the sincerity of one’s religious beliefs?

        • posted by craig123 on

          No one thinks the Virginia bill is going anywhere – it’s a sop to the religious right. And such antics wouldn’t happen if LGBT authoritarians didn’t get off on forcing conservative Christian service providers to do their bidding.

      • posted by Mike in Houston on

        It’s fairly obvious that there are grave misunderstandings about how public accommodation laws work… understandable, since the debate has been grossly distorted by the anti-gay Christianist right (and abetted by homocons like Stephen).

        If your business is making cakes, then you make cakes and sell them. If your catalog of cakes includes wedding cakes, then you make & sell wedding cakes.

        Anti-discrimination public accommodation laws kick in when you refuse to make sell a wedding cake for someone in a protected class. Yes, I make wedding cakes — just not for YOU and your kind.

        A Jewish (or Muslim) wedding caterer would NOT be required to serve bacon-wrapped shrimp — if they don’t serve bacon-wrapped shrimp to ANYONE — but they would fall afoul of the statutes if they excluded a particular customer based on that person’s religion, ethnicity or other protected class.

        And speaking of reasonable solutions to the question at hand, the way that the owner/operator of Azucar Bakery in Denver handled an anti-gay provocateur, I believe, will be held up as the appropriate way forward. She was asked to bake a cake in the shape of a bible — “We make [Christian-themed] cakes all the time,” she says. “No problem at all.”

        Asked to embellish said “bible cake” with anti-gay slogans, she refused — saying that they didn’t decorate cakes with rude messages. She did, however, offer to sell a decorating bag with the right tip & icing so the customer could write whatever they wanted to on the cake:

        “I would like to make it clear that we never refused service. We only refused to write and draw what we felt was discriminatory against gays. In the same manner we would not … make a discriminatory cake against Christians…”

        That, of course, wasn’t enough to stop a complaint being filed alleging religious discrimination.

        This complaint will ultimately be tossed — and the complainant will undoubtedly scream, “persecution”, when they have to pay the court costs — but aside from the frivolous complaint, it is an object lesson in how businesses can be respectful of their customers, stay within public accommodation laws and still maintain their moral & ethical standards.

        Source: http://outfrontonline.com/news/pro-lgbt-baker-slapped-religious-discrimination-complaint/

        Now, back to the topic at hand — the Supremes & marriage equality. I think this is Justice Roberts doing a solid for the GOP by taking this issue off the table for 2016.

        • posted by Tom Scharbach on

          This is a good explanation. The anti-gay noise machine may or may not understand public accommodation laws — most of the hangers on probably don’t — but the laws are irrelevant to the purpose of the exercise, which is to demonize gays and lesbians as “intolerant” jackboots hell bent to crush god-fearing American Christians.

  4. posted by Tom Scharbach on

    This is not all or nothing, it’s all or parry. If the Supreme Court overrules the Circuit courts, both sides will have taken half damage.

    I agree, Jorge. If the Supreme Court upholds the 6th Circuit decision, by implication overruling the other circuits, we are going to have a hell of a mess, both legally and politically.

    As I look at it, here is the situation:

    A negative Supreme Court ruling would directly affect marriage equality only in the states of Kentucky, Michigan, Ohio and Tennessee. In those states, the 6th Circuit decision would stand, marriage discrimination would remain the law, and gays and lesbians seeking marriage equality would have to turn to state courts deciding under state constitutions, ballot referendums to repeal anti-marriage amendments, and the legislature.

    In the states that achieved marriage equality through ballot initiative (Maine), legislative action (California, Connecticut, Deleware, Hawaii, Illinois, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington) or court decisions under state constitutions (Colorado, Iowa, Massachusetts, Missouri, New Jersey, New Mexico), marriage equality will not be affected by the Supreme Court decision, directly or indirectly. In those states, marriage equality will remain the law.

    The rub comes in the states that achieved marriage equality through federal court decisions under the federal constitution. In those states:

    (1) The validity of existing marriages would, almost certainly, remain valid and the states in which those marriages took place would, almost certainly, be constitutionally required to treat the marriages on an equal footing with marriages between straight couples. That doesn’t mean that state officials will not challenge the validity, or otherwise try to avoid recognition, of the marriages, and when that happens, we can expect an ongoing legal struggle over a number of years before the existing marriages are held valid by a final court order.

    (2) The lower court (district and/or appellate) decisions in favor of marriage equality would remain in full force and effect unless and until vacated by order of the court issuing the decision or a higher court. In order to get the court decision vacated, a party with standing (e.g. a state government) would have to make a motion to reopen the judgement, and the court (or a higher court) would have to vacate the judgment. The key question will be whether or not a party with standing (e.g. the state government) will be willing to undertake that job in an election cycle, particularly when public opinion now favors marriage equality.

    And that sets up the political mess, which will be a doozie.

    In some states, the governor and other state-level officials might elect to challenge seek to have lower court decisions vacated. If the orders are vacated, the states involved will then enter into a protracted battle over same-sex marriage, as efforts to repeal the anti-marriage amendments in those states get underway. As was the case when the amendments were put into place, the battles will be ugly and divisive. Depending on the state in question, the battles over the amendments would likely consume as much as decade, keeping same-sex marriage alive as a divisive wedge issue for a long time.

    In other states, the governor and other state-level officials might elect not to seek to have the lower court orders vacated. In those states, the state-level elected officials might well face lawsuits from anti-gay groups seeking a right of mandamus, pressure from anti-equality groups and citizens, and almost certain conflict with social conservative legislatures where Republicans hold a majority.

    And, I suspect, that is just the tip of the iceberg. The result of a negative decision is almost certain to be a political/legal mess that will endure for years, pitting Republicans against Democrats, Republicans against Republicans, keeping the marriage equality alive as as wedge issue long after the American public has made its peace with it.

    Your observation got me thinking about Wisconsin. We have marriage equality by decision of the 7th Circuit. We have a legislature that is dominated by Republicans, almost all of them staunch social conservatives. We have Governor, Scott Walker, who is a social conservative (but seemed relieved when the courts took the issue off the table) who is in the early stages of a presidential run, and who might well be the candidate if the party eventually settles on a candidate who can bridge the “moderate/conservative gap” in the party. We have a “nuclear option” anti-marriage amendment banning same-sex marriage and marriage-equivalent civil unions, an amendment that will take two legislative sessions and a subsequent vote by the people to remove from the constitution, a minimum of five years, and more likely 12-15 years, given the composition of the legislature.

    So if the Supreme Court issues a negative decision next June, what is Governor Walker going to do? I can’t see an alternative for him except to file a motion to vacate the 7th Circuit order, becoming “Mr. I Killed Gay-Sex Marriage in Wisconsin”. And that is going to be going down just when he’s trying to bridge the “moderate/conservative gap” in the party and sell himself as a man of action who can appeal to independent voters, who favor marriage equality by 65%. Good luck with that, Governor. If the Supreme Court issues a negative ruling, Scott Walker’s presidential hopes are toast. If Scott Walker isn’t praying mightily for a Supreme Court decision establishing marriage equality as the law of the land, he’s a hopeless fool.

    And what of the other candidates, and the Republican Party as a whole? If marriage equality emerges again as a wedge issue, it isn’t gonig to help Republicans at all.

    So, as Stephen points out, a negative decision from the Supreme Court will be “devastating” — to us, because it will almost certainly mean the loss of marriage equality, at least temporarily, in a significant number of states — but the “devastation” might be an example of the law of unintended consequences, particularly for the Republican Party, which will find itself embroiled on the wrong side in a marriage discrimination fight for a long, long time after it wanted to let it go. Ouch!

  5. posted by Jorge on

    I’ve not seen a better description of a pyrrhic victory since learning about the eponymus one. I thought about using the term but thought better of it.

    I notice you speak of a lot of “states” this and “governors” that, nothing of presidents and constitutional amendments. Will President Bush never wake up?

    It great to survive a deathblow, but “You’d be surprised what you can live through.” A LOT can happen at the state level.

    But again ,if the presidential candidates pivoted because of where the trends are going, I think they pivoted too soon. I think Houndentenor and a few others sneer at the Clintons for pivoting rather late. Have they flip-flopped? You actually raise the possibility that Scott Walker will flip flop again.

    I haven’t started to look at the Republican primary yet. But I think this marriage bit is a huge distraction in it because of how insincere these would-be presidents are. I want a president who wants things to be better for gays. You can’t measure that in this game of Republican musical chairs. I don’t like all this pandering.

    • posted by Tom Scharbach on

      I notice you speak of a lot of “states” this and “governors” that, nothing of presidents and constitutional amendments.

      I don’t worry about a federal marriage amendment, laws removing/limiting federal court jurisdiction over “culture wars” constitutional questions, laws reinstituting DOMA-lite and somesuch. I think that all are dead in the water for a variety of reasons, nothing more than a vehicle to allow Republican politicians to establish their anti-equality bona fides with conservative Christians. Yarp we’ll see plenty of, real damage not.

      Here’s what I worry about on the federal level, and I worry about it regardless of the direction of the Court’s decision next June:

      (1) A Republican president elected in 2016 is almost certain to be under tremendous pressure from the base to rescind/limit pro-equality regulations/policies now in effect in the various federal government departments. The current administration has stretched regulations/policies about as far as it can in the direction of equality and stay within the confines of law; a Republican administration would be more likely than not to do the opposite — limit regulations/policies as far as it can in the direction of anti-equality. Tinkering with federal regulations/policies is politically costless, because most Americans don’t understand them and don’t care about them, but the Republican base does. Do you think for a minute that a Republican president won’t cut back the relatively new regulations concerning federal contractor non-discrimination in employment in a heartbeat?

      (2) A Republican president elected in 2016 will be under tremendous pressure from the base to appoint a justice like Alito, Roberts, Scalia or Thomas to the Court when a vacancy occurs, and given the ages of the Justices, a vacancy during the next 10 years is a certainty. Just substitute Judge Sutton for any of Justices Breyer, Ginsburg or Kennedy and think about the upcoming June decision and you’ll see what I worry about. The reason that I worry is that both wings of the base — the so-called “libertarian” wing and the conservative Christian wing — want Justices in the mold of Alito, Roberts, Scalia and Thomas for different reasons, so it is highly probable that we’ll get someone like them on the Court if a Republican is elected.

      I think that it is important to keep in mind that we have been very lucky indeed with respect to the courts.

      In the 5th, 7th and 11th Circuits we ended up with favorable panels by luck of the draw; given the composition of those Circuits, we could just as easily have drawn panels like the 6th Circuit panel.

      In the Supreme Court, we’ve probably got a 5-4 pro-equality decision coming down the pike, but that is a fragile majority. One serious illness or death from among the five during the next four months, and we are down to 4-4, which will have the effect of affirming the 6th Circuit decision, albeit without precedent value.

      And, given the strong possibility that a Republican will be elected in 2016, the composition of the Court is likely to change — not in our favor — as soon as vacancies open up seats.

      Stephen characterizes the legal situation as “Going for Broke”. I’d characterize it as “taking our one, and possibly only, best shot”. If we don’t win in June, we are in for a long, long road ahead. We’ll prevail in the end — the country has changed — but we will be delayed a decade if the Court issues a negative ruling.

      Ted Olson has talked about this — the current composition of the Court and the fragility of the pro-equality majority — in a number of interviews over the last few years.

      Olson understands that we have a window on the Court that might well close, and I think that was a prime mover for him to strike as quickly and as hard as he (and David Boies) did in the Prop 8 case, spurning the cautious “step-by-step” strategy urged on him by LGBT rights organizations, the ACLU and Lambda. Olson and Boies took a hell of a risk — and the Supreme Court ducked — but they took that risk with open eyes, for good reason.

      As I’ve said, I’m reasonably confident that we will get a pro-equality decision in June. We’ve got good cases before the Court, with well-chosen gay/lesbian couples selected to push the right factual/legal buttons, good lawyers, the judicial wind at our back, public opinion on our side, and a Court that seems to be favorably composed. But I’m also aware of how fragile the situation is, and how easily it could turn.

      I’m counting no chickens.

  6. posted by tom Jefferson 3rd on

    Cato Institute and the Institute for justice will probably be encouraged to submit briefs in favor of equality. They did in Lawrence, but will they do so again…..

    • posted by Tom Scharbach on

      Cato will almost certainly file a brief. Cato filed in the Prop 8 case, and it was a good brief, too.

    • posted by Houndentenor on

      I hope they and other libertarian-conservatives. I would like it if the decision were 6-3 or even 7-2. In such a controversial issue it’s better if the decision is not 5-4, even if that means multiple opinions supporting the majority.

  7. posted by Tom Jefferson III on

    It is interesting how the U.S. Supreme Court has — historically — dealt with Constitutional questions when sexual orientation is involved.

    In the late 1950s, the court extended free if speech/press protection to the gay press…but just issued a very short opinion that avoided the entire issue of homosexuality.

    In the late 1960s, the court upheld a ban on gay immigrants entering to the United States. Probably the first time that the court had said anything about homosexuality and the Constitutional issues that it raises (technically just an issue of what Congress had intended with its ‘sexual pyschopath’ (sic) immigration ban, but an interesting read).

    The mainstream press said little — if anything about either case and I doubt that whomever was in the White House at the time (or even Congress) said much about the cases publicly.

    Then the court seemed to generally avoid the issue — letting earlier decisions stand for better or for the worse — until the 1986 Bowers decision.

  8. posted by Lori Heine on

    What would happen, if people started refusing to do their jobs because of “sincerely held religious belief,” is that they would be fired. And, as I have noted on a different thread, if this happened often enough, they’d need to keep their faith a secret–to go into the closet about it–if they wanted to remain employable.

    Businesses, everywhere but in the deepest and smelliest armpits of the country, would indeed go belly-up. That the zealots who wanted these laws knew this would happen can be seen in how they objected–strenuously–when more-skeptical legislators pushed for provisions mandating that businessowners making use of such laws publicly post their policy.

    On the Internet, instances of bigotry or rudeness on the part of business establishments take a few hours to go viral. There are a variety of reasons this is a far different situation than what existed in, say, Selma in 1955.

    • posted by Jorge on

      …And, as I have noted on a different thread, if this happened often enough, they’d need to keep their faith a secret–to go into the closet about it–if they wanted to remain employable.

      Forcing someone to keep their religion a secret as a condition of their employment is illegal under the Civil Rights Act. Employees are entitled to religious accommodations if they are not too much trouble. If that is not possible or desirable, the employee has the option to quit, with or without revealing their faith.

      I see no good reason to force the issue if it is not already part of the status quo.

      • posted by Lori Heine on

        No act of the government can change basic human nature. An employer is simply not going to hire someone he or she does not think will reliably do the job. All they have to do is give a different official reason.

        Social conservatives are not popular with most of the rest of the country. Although Leftist propaganda doesn’t like to admit this (it deliberately scrambles all different sorts together, into one big, scary blob), most other conservatives have gotten very sick of them.

        The reaction of your average Chamber of Commerce type guy or gal, when confronted by some prig who sniffs that he or she would refuse to serve gays, would be (at least internally) “Get this weakling out of my office!” Again, hiring personnel could always give some other excuse. As a matter of fact, they need give no excuse at all except to say that another candidate was a better fit.

        I don’t think it would happen that a whole lot of anti-gay Christians would take advantage of such a law. But the bigger, noisier stink they make about wanting one, the more likely it would be that employers would begin to think twice about hiring people who wore their faith on their sleeve.

        There’s really nothing some words on a piece of paper can do about that.

  9. posted by Tom Scharbach on

    More. I’ve made this point before, but the New York Times now agrees: “The news Friday that the Supreme Court will rule on same-sex marriage brought elation from gays and lesbians…. But another group also saw a possible reason to celebrate if the court does indeed rule that way: Republicans.”

    No offense, Stephen, but just about everybody has made that point by now, even Jeremy Hooper. It is good to see the two of you singing out of the same hymnal.

    As the Times article points out, the establishment Republican candidate (e.g. Bush, Walker, Pence, Romney) formula has been crafted:

    (1) I strongly support traditional marriage, the foundation and bedrock of civilization.
    (2) I have a long record of opposing the redefinition of marriage.
    (3) The Supreme Court has decided the issue.
    (4) I do not agree with the decision, but I call on all Americans to respect the rule of law.
    (5) I support religious freedom.
    (6) I call on all Americans to respect the religious freedom of [Christians] who [like me] do not agree with the decision.

    Points (1) and (2) establish a candidate’s bona fides as a social conservative. Points (2) and (3) appeal to the general electorate, which will not tolerate a candidate openly supporting rebellion/resistance. Points (5) and (6) are dog whistles offering hope and solace to the party’s social conservative base.

    The statements may or may not include riffs about God and personal faith, about the political process and the will of the people, about “activist judges”, about “my focus is on the important issues”, and so on, but those six points are the core.

    The candidates will stay on script, depending on surrogates to rile up resentment about “intolerant” gays and lesbians seeking revenge, seeking to victimize Christians and impose a Robspierre-like reign of terror, hammering on the “[progressive] gays and lesbians are destroying America” meme that has been a mainstay of Republican politics for a decade. Party strategists will work hard behind the scenes to ensure that “neutral” surrogates — gay/lesbian conservatives, others not directly traceable to the the anti-gay core — are used prominently in order to create the mirage that the surrogates are “mainstream” and that gays/lesbians are “outsiders”.

    It is a good strategy, politically. It allows the Republican candidates to move past the issue without offering so much as a mustard seed of support for gays and lesbians or marriage equality. In fact, when the surrogates’ role is taken into account, it allows the Republican Party to move past the issue while continuing to profit from the “[progressive] gays and lesbians are destroying America” meme.

    How the establishment message will play in the Republican primaries against a hard-core social conservative candidate (perhaps Mike Huckabee, Rick Santorum, Ben Carson or Ted Cruz) standing in open definance of the Supreme Court decision, I don’t know. A lot will depend on the timing of Republican primaries in the states with an entrenched social conservative base. It will be interesting to watch it play out.

    Where Rand Paul will land is, as always, an open and fascinating question. My guess is that he will deploy the establishment formula accompanied by a lot of whining, but Paul is unpredictable, so I’m just guessing.

    • posted by clayton on

      If Republicans want the divisive issue to go away, the RNC might try using its influence to stop so -called religious liberty bills like those proposed in Wyoming and Virginia. Otherwise they will find themselves burdened with the issue all over again.

      • posted by Tom Scharbach on

        The Virginia bill is the same old, same old license to discriminate against gays and lesbians, and gays and lesbians alone. It is bullshit.

        The Wyoming bill, on the other hand, meets the three-part “equal means equal” test (religion-neutral, issue-neutral and class-neutral) and is the first bill I’ve seen yet that actually attempts to protect freedom of conscience.

        I don’t suppose that it will get anywhere, but it might stimulate a real discussion in Wyoming about freedom of conscience outside of a “screw the gays” context. If it does that, it will have been worth the ink.

      • posted by Tom Scharbach on

        Clayton, I think I should be a bit more explicit about the Wyoming bill. What is important about it, in addition to being issue-neutral and class-neutral, which none of the other bills to date have been, it is also religion-neutral, protecting individual moral conscience, whether religious or non-religious in nature.

        With the single exception of a proposed Wisconsin constitutional amendment that went nowhere once the conservative Christians understood what it did, this is the one and only proposal I’ve seen that extends the Sherbert test (substantial burden, compelling government interest, least restrictive means) to non-religious moral conscience.

        The Wyoming bill would, in effect, within the boundaries of Wyoming, grant First Amendment protection to individual non-religious moral conscience. That, in my opinion, is a huge advance, legally.

        Otherwise, it would not change much, if anything. Public accommodations laws have, in ruling after ruling, survived a Sherbert challenge, and would continue to survive a Sherbert challenge under the Wyoming bill.

        The Wyoming bill is not, as I see things, a slide down a slippery slope. Instead, it unshackles moral conscience from religious belief.

  10. posted by Tom Jefferson III on


    “What would happen, if people started refusing to do their jobs because of “sincerely held religious belief,” is that they would be fired.

    Well, maybe. Religious discrimination is covered by Federal and State civil right laws (yes, the Libertarian Party and the Objectivists would see such laws repealed, but that is current reality)

    In the real world, a private employer (unless they were faith-based or some other such issue) cannot simply fire someone because they are Catholic or Jewish and generally has to be willing to make “reasonable accommodations” for an employees religious beliefs.

    Although many a civil rights attorney will tell you that it is pretty easy for a private employer to get around/pay lip service to the “reasonable accommodations” rule.

    —Businesses, everywhere but in the deepest and smelliest armpits of the country, would indeed go belly-up.

    If they engaged in religious discrimination? Well no. Discrimination against Catholics and Jews was quite common in America prior to the passage of the Federal Civil Rights Act of 1964.

    I suspect in communities with very small Muslim or Jewish populations — for example — employment discrimination exists.

    Overt and obvious acts of discrimination do often go viral in the era of the World Wide Web and video upload webpages. However, (a) unless it is really obvious, it generally does not go viral and (b) much of it has focused on discrimination against customers and not the messy employer-employee relationship.

    Without private sector civil right laws in place, an imperfect tool to be sure, employees would be up the creek without a paddle.

    • posted by Mike in Houston on

      Unfortunately, it’s not just wanting special carve-outs for being able to discriminate against LGBT people for certain religious sects… they also want social and political impunity… something that Stephen and other homocons are only too willing to abet.

      Let’s say that the recent “license to discriminate” legislative filing in Texas passes, is signed into law and miraculously survives a Sherbert test… thereby allowing a certain type of Christian (see Becky Riggle) to not bake cakes for same-sex couples. These couples, having no legal recourse to follow, turn to social media… wherein the business owner is confronted publicly and branded a bigot — losing trade & business.

      All of a sudden, it’s not enough to be able to discriminate based on their “sincerely held beliefs”, but those beliefs and their actions based on them can’t be called out — because that’s “persecution” for their beliefs. (See Atlanta Fire Chief firing and AFA).

    • posted by Lori Heine on

      TJIII, I respect the fact that you’re willing to engage libertarians instead of simply shouting at us. That’s an important trait for an American to have these days.

      I disagree with you that anti-discrimination laws will not have unintended consequences. They almost always do.

      Tom S. has some very valid points about the importance of making religious freedom laws religion-neutral so they favor no one over anyone else, and issue-neutral so they aren’t simply missiles aimed at LGBT folks. These are issues we need to press, and press insistently, with regard to such legislation.

      I think social conservatives are simply playing a game. I don’t think they want to do anything but revive their flagging momentum by seizing onto a new way to portray themselves as victims. But if we call them on their game, and make clear that we are not simply going to oppose any religious freedom legislation but insist on having input into it, the majority of the public will see the religious right’s ploy for what it is. Screamers on the far right are not going to want us at the table–and that will show their hand.

      I agree that the hard right is doubling down and getting even nastier. And that they mean the legislation they propose to no good end. I’m not trying to automatically defend everything they do because I’m critical of things like expanded public accommodations laws. I’m trying to make clear that we shouldn’t play right into their hands.

      They expect us to shriek and toss glitter-bombs. That’s all some of the commenters here are doing. What I’m suggesting is that it might not be a very good idea for us to do exactly what our enemies hope we will.

  11. posted by Tom Jefferson III on

    Ron Paul (former TX Congressman) is not going to run for President, and his son (current Senator) Paul Ryan is not going to either. Their really isn’t much fame and fortune to be had with their campaign message this time around (both men don’t really need to be a presidential candidate in order to persuade Tea Party types and libertarians to give them money).

    It is possible that it was getting harder and harder for these two men to appeal to libertarians and the (largely) socially conservative Tea Party groups with an issue like gay marriage being front and center…..The statements that they made on the subject were not really in line with even the libertarian-right.

    Mitt is in some trouble, because the type of people who give him money/praise are leaning in the Jeb Bush direction. I am not sure if he ever really wanted to be President, but he may want some concessions from the Bush campaign.

    Hucklebee may doing something similar to what Patrick Buchanan (i.e. run under some right-wing/populist third party campaign), but I doubt that he will want to totally severe his lucrative ties to the GOP (and the GOP-affiliated media).

    • posted by Francis on

      Slight nitpick: Surely you mean Rand Paul?

  12. posted by Tom Jefferson III on

    —Atlanta Fire Chief firing

    Because the fire department is a public institution, their may be a First Amendment issue (possible also an issue with the fireman’s labor union as well).

    The Fire Chief self-published (if this is the same case) a book that compared gay people to child molesters and the like.

    The government cannot ban the book and I am not entirely sure if they can fire him from a government job (although it depends on how the position is filled. Some police chiefs and fire commissioners serve at the sole discretion of the mayor or city council. Much like some federal positions serve at the pleasure of the president).

    I would certainly be concerned about his ability to — as a representative of the government — treat all citizens in a fair and professional manner. What is it like to be a gay fire fighter under this man? These sort of questions would be very relevant (at least for me).

    of a sudden, it’s not enough to be able to discriminate based on their “sincerely held beliefs”, but those beliefs and their actions based on them can’t be called out — because that’s “persecution” for their beliefs. (See Atlanta Fire Chief firing and AFA).

    • posted by Mike in Houston on

      The Atlanta fire chief was fired for insubordination — not doing his job.

      He didn’t get prior clearance before publishing the book. He distributed it to people that reported to him — on city property and at work. When a complaint was under investigation, he was told not to comment on the investigation or his administrative leave — but he decided to speak out about it against direct orders from the Mayor and let it be known that he would continue to proselytize against city employment policy.

      He was NOT fired for his religious beliefs — just his belief that he didn’t need to follow city employment policies or his superiors’ orders.

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