A New Day

A friend remarked that his facebook feed looks like an explosion in a skittles factory (rainbow hues all round). In the aftermath of an historic day, there has been much, much said. I’ll simply point out that our good friend Jonathan Rauch has posted The Supreme Court weds gay marriage to family values and also a look back Here’s how 9 predictions about gay marriage turned out. Both are worth reading.

And because I’m a compulsive GOP watcher, I’ll also note that the Wall Street Journal offers a roundup of responses from GOP presidential wanabees. Jeb Bush comes out best: “I believe the Supreme Court should have allowed the states to make this decision,” but “I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”

Scott Walker, shamefully, doubled down on his call for an anti-gay-marriage constitutional amendment.

More. Some addition thoughts from Andrew Sullivan, shared with the New York Times. From one of the first and strongest intellectual advocates of same-sex marriage (along with Jonathan Rauch and Bruce Bawer), two points that go against the grain of the current LGBT progressive narrative but are spot on:

The movement succeeded because it made a conservative argument as much as a liberal one. It was crucial to be able to make it in a way that didn’t pigeonhole it as a left-wing issue — in fact, for the first 15 years or so, it was seen as a right-wing issue, particularly in the gay community. It was important to reach out to people like moderate Catholics, who could see what was truly conservative and reformist about this, as opposed to radical and revolutionary. …

I think the main issue now will be protection of religious liberty. Many of us have no problem allowing religious institutions to run their own organizations as they see fit, as long as they are sincere and in good faith. I don’t think they have anything to fear. What we need to express at this point is magnanimity. We’ve got to let people who genuinely find [same-sex marriage] disconcerting the space and time to deal with it. That’s what I would caution and urge.

9 Comments for “A New Day”

  1. posted by Tom Scharbach on

    I’m going to track candidates on these four issues:

    (1) support for a federal constitutional amendment banning same-sex marriage nationwide;
    (2) support for federal constitutional amendment allowing states to ban same-sex marriage;
    (3) pledges and/or statements of intent to appoint “originalist” judges and Justices; and
    (4) support for “religious freedom” legislation that is specifically targeted to sanction special discrimination against gays/lesbians and/or same-sex marriage (that is, is not not religion-neutral, issue-neutral and class-neutral.

    The constitutional amendments are non-starters, and any candidate who supports them is a moron. As you pointed out in an earlier post, “a GOP nominee who campaigns in favor of voiding hundreds of thousands of legal marriages and leaving the children of these unions with far fewer family protections is going to seem very extreme”. Americans simply will not tolerate it.

    Judicial appointments, and in particular Supreme Court appointments, are of critical importance. Obergefell was decided 5-4, and the four dissents (Alito, Roberts, Scalia, Thomas) were remarkable for their acrimony. I expected acrimony from Justices Alito, Scalia and Thomas, but the intensity of Chief Justice Robert’s dissent took me by surprise. The acrimony reminded me that if either Justice Ginsburg or Justice Kennedy are replaced by an “originalist”. Obergefell could easily be reversed or severely limited by future decisions. So I am going to watch candidates very carefully for statements of intent regarding judicial appointments.

    I’m also going to watch the candidates carefully on the “religious freedom” issue. Statements like “It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate. sound innocuous, but the devil is in the details.

    A prime example of objectionable”religious freedom” legislation is the First Amendment Defense Act (SB 1598, HR 2802), sponsored by Ted Cruz, Lindsey Graham, Rand Paul, and Marco Rubio, among many other Republicans in the House and Senate.

    The operative words of the bill are:

    Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

    The bill protects “religious freedom” in one and only one case: opposition to same-sex marriage.

    People of faith who have religious objection to other forms of marriage (e.g. interracial marriage, inter-denominational marriage, inter-religious marriage, remarriage after divorce) can go beat their meat as far as the proponents of the First Amendment Defense Act are concerned — their religious convictions, however deeply and sincerely held, and however consistent with the tenets of their faith (e.g. Catholic opposition to remarriage after divorce), are not worthy of notice or protection.

    We have fought a good fight, in many cases at significant personal cost, for many, many years. On marriage equality, we have prevailed, even though we recognize that we have a long way to go on other issues.

    We need to protect the freedom we have gained by winning the marriage equality battle, and we need to be constantly aware that freedom, as it is said, is not free. We need to raise hell about legislation like the First Amendment Defense Act, and we need to raise hell about candidates who support it and other similar legislation.

    It is up to us, as it always has been. Politicians will play to the crowd, as they always have and always will. We can’t count on any of them for leadership, we need to continue to push and shove, as hard as possible.

  2. posted by Jorge on

    From Rauch’s article:

    ….Of course, Kennedy nods also to the importance of “individual autonomy” (choosing who you marry) and the importance of intimacy.

    I think that point is central to the decision’s legal reasoning. It’s basically adapting the reasoning of Steven’s dissent in Bowers to this case (if a right is absolute, can a state deny it to only a few?).

    In Bowers, Steven’s reasoning was a brilliant argument that eventually became the law in the land. I always recommend reading it.

    But for Obergefell? I would have liked a more methodical analysis. Bowers and Loving both involved criminal prosecutions. This case does not. It is because the majority made bridges over such vast chasms without the Court’s usual meticulous legal lockpicking that this decision provoked such forceful dissents. Was it really so difficult for five justices to speak in one voice that one of them (more likely four) has to wear a bag over their head for the rest of their career? It is not mean-spirited or irrational or irresponsible to point this out, or to cast doubt on the decision’s methods in forceful terms. Nor do I believe it is intellectually honest to single only one dissent out for attack.

    However, what I’d really like to do is vote on a constitutional amendment confirming this decision. This will give the states a right to weigh in just as well as the amendments in opposition. Will that happen? Of course not.

  3. posted by Lori Heine on

    There’s a good article in Reason magazine about the libertarian position on same-sex marriage. Implicit in the article (the very reason for which it is written) is that not all libertarians agree, or even understand how libertarian principles apply to the issue. But Sheldon Richman does a very good job of explaining those principles.


    As another libertarian writer said on Facebook, though libertarians would like to private the post office, that doesn’t mean they don’t want to get their mail.

  4. posted by Tom Jefferson on

    The Libertarian Party has always taken the position that government discrimination is unconstitutional, and so are civil right laws that apply to the private sector.

    • posted by Lori Heine on

      And the Libertarian Party does not speak for all libertarians. Which is why many libertarians–including me –do not belong to it.

      You have some passing familiarity with libertarianism. That hardly makes you an expert. As this is a libertarian/conservative blog, it isn’t a good idea to make sweeping statements about libertarians in the comments here. There are plenty of readers who can come forward to set the record–in a manner of speaking–straight.

      • posted by Tom Jefferson III on


        Stephen was speaking about the history of the Libertarian Party’s views on LGBT- rights. So my reply was limited to the party itself.

        You are correct that the Libertarian Party does not speak for all libertarians in the United States. Here are just some examples;

        Some, like Milton Friedman were happy to join the Republican Party because of its statements on “economic freedom” and were willing to overlook the party’s statement on gay rights and other civil liberties concerns.

        Others libertarians were actually more paleo-conservatives such Ron Paul and company. They are probably more along the lines of what the Constitution Party advocates, but they still get sufficient praise within libertarian circles.

        Your insistence that I do not know enough about libertarianism, its factions and personalities, is mistaken.

  5. posted by Jim Michaud on

    I love how all these candidates are kissing up to the sic cons. They talk a good game now. Then the National Guard will show up to enforce the SCOTUS decision. They’ll abide by the law and tell the base “we fought the good fight”. But the base will say “no you didn’t. You caved when the guards showed up.” That’s when the sheer zealotry of the people courted by the candidates will be on full display. Disillusionment will set in. Just sit back and watch the fun.

  6. posted by Tom Scharbach on

    From the Rauch article “The Supreme Court weds gay marriage to family values“:

    The conservative marriage narrative has won. The Supreme Court could have found for same-sex marriage on left-liberal, “anything goes” grounds that if people love each other, they should be entitled to marry. Or it could have gone with a libertarian argument, finding that the state should not be prejudging interpersonal relationships at all. … Instead, writing for the majority, Justice Anthony Kennedy grounded his decision in the social value of marriage. The gay petitioners seek the “profound commitment” of marriage, and same-sex marriage is important precisely because “marriage is a keystone of our social order” that “safeguards children and families.”

    I find this statement remarkable in its assumption the “left-liberal” equals “libertine”, “anything goes” without “profound commitment”. I wonder if Rauch has ever met the plaintiffs in the lawsuits around the country that secured marriage equality, or knows anything about them or their histories.

    I know most only through reading about them in Wisconsin’s gay media (“Meet the plaintiffs”, and all that), but I do know — personally — three of the eight couples that were plaintiffs in the Wisconsin litigation. I’ve known (and worked alongside) one of the couples (who have been together in a committed relationship for over 50 years) for over a decade.

    None of the plaintiffs have an “anything goes” attitude toward marriage, nor did the arguments that the couples made in District Court or in the 7th Circuit reflect an “anything goes” legal perspective. It was about commitment, family, children and responsibility. I think that Rauch is blinded by the homocon narrative which is, if nothing else, determinedly anti-liberal.

    Left-liberals know better — left-liberals have long understood that the drive toward marriage equality was driven by the desire to tie love and commitment together. I think that is (or should be to anyone willing to look and listen) in the photos and stories of the thousands of gays and lesbians who have been pushing for marriage, and who have married or plan to marry.

  7. posted by tom Jefferson 3rd on

    Tom S;

    What, you saying that Andrew Sullivan and his homocons didn’t singlehandedly achieve marriage equality from the opposite of religious fanatics and moderately liberal people?


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