Post-Marriage Forecast

The New York Times looks at the likely aftermath of a June Supreme Court ruling that there is a constitutional right to same-sex marriage:

Still, once the Supreme Court speaks, in a decision widely expected to make same-sex marriage a national right, the opponents’ anger and energies are likely to focus on a more limited issue, what they call protections for conservative religious officials or vendors who want to avoid involvement in same-sex weddings.

Gerald N. Rosenberg, a political scientist and legal scholar at the University of Chicago, said his former predictions of a wider, lasting backlash to marriage rulings had been overtaken by the “sea change in public opinion.”

Such “opt out” proposals may produce political heat, as recently seen in Indiana and Arkansas, where the governors, under pressure from businesses, felt compelled to weaken so-called religious freedom bills. But they will not impede the ability of gay couples to marry, Mr. Rosenberg said.

And this:

Yet whatever resistance strategies are adopted, many legal and political experts who have studied the impact of divisive Supreme Court rulings in the past, and the trajectory of the same-sex marriage movement, say they do not expect a lasting, powerful backlash of the kind that followed decisions on school desegregation and abortion.

Instead, the experience in states where same-sex marriage has already been legalized suggests that public opposition is likely to wither over time.

“As more couples marry, more people will know people who are married,” said Michael J. Klarman, a legal historian at the Harvard Law School and author of a 2012 book on earlier same-sex marriage rulings. “And those who oppose it will find out that the sky doesn’t fall.”

Assuming that the Supreme Court rules the right way, I think that’s correct. Same-sex marriage is not abortion; it is not the taking of life. There will not be mass mobilizations to pass Ted Cruz’s constitutional amendment.

But the debate over whether independent vendors with religious views opposed to participating in same-sex weddings should be forced by the state to do so (at the behest of angry authoritarians) will continue, and it will be ugly. Think witch hunts.

Confusing the matter is a related but different issue: whether civil servants should be able to opt out, and here I think the answer has to be no. There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

9 Comments for “Post-Marriage Forecast”

  1. posted by Mike in Houston on

    Yes — the faux debate about whether or not businesses open to the public are allowed to discriminate against LGBT people and violate public accommodation laws will be ugly.

    But then again, the new Christian Persecution GoFund My Discrimination Business Model should assuage any fears on the right.

  2. posted by Tom Scharbach on

    Republicans will get one more round of using gays and lesbians as cannon fodder. We’ll be described, this time around, as “angry authoritarians” imposing our intolerance on the nation, blackmailing Fortune 500 companies and politicians, intent on destroying Christianity and all that is dear to God-fearing Americans, akin to Robspierre, the Nazis and Islamic fanatics in our single-minded determination to destroy religion, family, salt, corn and the American Way of Life. The base will come running to the dog whistles, no doubt about it.

    But then, I think, it will be over, as the NYT article Stephen quoted suggests. By 2020, it will be clear to all but the very dim witted and the very crazy that gays and lesbians marry and nothing happens. The country will remain standing, straights will continue to marry, have children, divorce and remarry, marriage equality will not have provoked G-d into wiping Nebraska off the face of the earth, and Christians (much to the surprise of Mike Huckabee and Tony Perkins) will not have been herded into boxcars or thrust under the guillotine. And that will be the end of “faggot, faggot” as a political strategy.

    A part of me wants to join Lori with a “jumbo-sized popcorn with lots of butter”, and watch Republicans fall all over themselves justifying special discrimination against gays and lesbians under the rubric of “religious freedom”. Another part — the dominant part — intends to measure this election cycle’s round of “faggot, faggot” against constitutional measuring sticks (religion-neutral, issue-neutral, class-neutral).

  3. posted by Lori Heine on

    I think that both the left and right are confused about what is, or is not, a public accommodation. As the post rightly points out, government officials should be expected to treat all citizens equally. If a county clerk refuses to sign a marriage license, he or she should simply be fired. We don’t get any choice in the matter of whether the clerk is paid, so the clerk should not have the option of refusing to do the job.

    To expect an expressive business like a specialty baker or a photographer to say something he or she does not believe, however, is a clear violation of his or her First Amendment rights. It violates both freedom of speech and freedom of conscience.

    Both of these extremes are clear-cut cases. Those in the middle, which are murkier, may intelligently be argued about. But dragging in the extremes does not make the picture any less murky.

    • posted by Houndentenor on

      The issue is distorted by bad examples, faulty analogies, and on occasion outright lies.* I think the photographer has the better case here. Is that service a public accommodation or an independent contractor? As for bakeries, is this really a specialty bakery making original designs for each event or do customers pick one of several types of cakes that they make? If you’re claiming first amendment issues then it would have to be the former because otherwise it’s the same as not being willing to sell a standard item to a customer based on race or religion.

      *For an example of outright lies see Mike Huckabee’s claim yesterday that gay couples will demand that pastors who oppose same sex weddings marry them “or else”. Or else what is a good question because no judge would even hear such a case much less rule in favor of the gay couple. It’s a lie and Huckabee and others who makes such claims know full well it’s a lie and yet they keep repeating it, usually unchallenged by interviewers who seem too stupid to know better.

    • posted by Jimmy on

      “To expect an expressive business like a specialty baker or a photographer to say something he or she does not believe, however, is a clear violation of his or her First Amendment rights. It violates both freedom of speech and freedom of conscience.”

      No problem. But if there are sections of the public that can’t be served by the business that is ostensibly open to the public, for whatever exclusionary reason they want, it needs to be publicly disclosed so I, and others, can avoid darkening their door.

      • posted by Lori Heine on

        Agreed. And when the people clamoring for these exemptions shoot this stipulation down, as they did in Kansas and Arizona, much, much more should be made of it–very publicly.

        I think these people are full of B.S. But the best way to expose their B.S. is to give them what they want. Let them have plenty of rope, and then let them twist in the wind.

        I think the social right has come to adopt many of the attitudes of the very left they claim to hate. Freedom and responsibility are inseparable. Sometimes freedom–real freedom–makes demands (like risking public ridicule and being driven out of business) that many of these childish anti-gay twits don’t want to meet.

        When the book is slammed shut on the fairy tale that freedom is like a goody from Santa Claus, it will finally shut the mouths of many of these people once and for all.

        Shrieking “my rights, my rights, my rights!” — a la Dale of the Desert — only adds to the deafening din coming from the nursery school peanut gallery.

  4. posted by Dale of the Desert on

    “To expect an expressive business like a specialty baker or a photographer to say something he or she does not believe, however, is a clear violation of his or her First Amendment rights. It violates both freedom of speech and freedom of conscience.”

    A clear violation? And how is that? Why does it seem so foggy to me (as it also has from time to time to the Supreme Court)? Our constitutional rights under the First Amendment, and particularly the Free Exercise Clause have never been unfettered and unrestricted. In general the courts have widely guaranteed freedom of religious beliefs but not always freedom to act upon those beliefs in ways that impact adversely upon the lives of others. If your religious liberty collides with my non-sectarian civil liberty, my liberty should trump yours. Short of that, we must find some mutual compromise, or else none of us could be guaranteed liberty, neither religious nor civil.

  5. posted by Lori Heine on

    Nobody is going to die because a bakery refuses to bake them a frigging cake.

    Yes, we can spend all our time (and of course a lot of our money) marching around in circles screaming “Equal, equal, equal” about things like this. That’s the way little kids react to things, and everyone else in the country is sick as hell of it.

    All these boycotts, and marches, and scream-fests are, at some point, going to begin to be yawned at and ignored. There are many people who are already beginning to respond to them that way.

    Political Ju Jitsu–letting one’s adversaries expend their own money and energy and defeat themselves–is often smarter. I’m pleased to see that the whole “religious freedom” tantrum is proving to be less effective for them than I’d feared it would be. And this is exactly why.

    After a while, even meritorious protests begin to sound like infantile diaper-rash. The public wearies of them, and tunes them out.

    Rand Paul is going to have to run back and kiss these nitwits’ pinkie-rings again, and again, and again, and again and again. Enough will never be enough. Like Ted Cruz–already being bitten in the ass for pandering to these people–Paul will find that enough is never enough. Those who try to appease this crowd give them an inch, and they demand a light year.

    I’m quite confident that my predictions will be spectacularly and entertainingly fulfilled. I still opt for the jumbo popcorn.

  6. posted by Tom Jefferson III on

    It is theoretically possible that someone could die , if someone did not bake them a cake. Maybe the customer is a diabetic and has a sugar rush. ;0)

    But seriously, If the people pushing for these “religious liberty” exemptions were doing so as part of a larger pledge to pass LGBT civil right legislation, I would be a bit more serious in taking these claims seriously.

    The “general public” may be able to claim ignorance about the ins and outs of a p.a. law, but when lobbyists or lawmakers attempt to do so, in order to justify opposing LGBT rights it is just inexcusable.

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