A Statement Calling for Constitutional Resistance to Obergefell v. Hodges, the Supreme Court’s ruling in favor of same-sex marriage, was recently issued by anti-gay social theorist Robert P. George, a professor of jurisprudence at Princeton University, and co-signed by others on the anti-gay right.
Their statement calls on “all federal and state officeholders” (1) To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case; (2) To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions; (3) To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
The arguments proffered by the statement’s signers are, basically, that the majority’s reasoning in Obergefell was wrong and therefore it is not binding (apparently, officeholders are only sworn to uphold Supreme Court decisions they agree with). They also contend, as do others on the far right, that Supreme Court rulings are only applicable to the those specific parties that brought the suit and that the court has no power to overturn state laws passed by legislative majorities.
Some of this language is intended to sound vaguely libertarianish, but libertarians don’t believe in upholding majority dictates that violate individual rights.
The Constitution’s framers sought to limit the power of the majority to curtail the liberty and rights of individuals. As George Will recently pointed out, “In a democracy, the strongest force is the majority, whose power will be unlimited unless an independent judiciary enforces written restraints, such as those stipulated in the Constitution.”
Interestingly, some on the political left have also, when it suited their needs, argued that it is improper for courts to overturn laws passed by a legislative majority. These arguments were recently heard in some of the defenses of Obamacare after it came under judicial scrutiny.
Although the anti-gay-marriage statement’s co-signers high-handedly compare Obergefell to Dred Scott, their own actions are similar to southern segregationists who believed that Brown v. Board of Education was not binding on states that preferred to continue treating black students as separate and unequal.
The George manifesto was trumpeted by anti-gay activist Maggie Gallagher, who notes that George has also launched a PAC, the Campaign for American Principles, to support like-minded office seekers.
Be that as it may, this is all a rearguard action by the defeated. While they may envision a nation full of Kim Davises, those officials who believe their allegiance to fundamentalist religion supersedes their duty to uphold the law as interpreted by the highest court will remain few and far between.
And they have done a disservice to those private citizens who argue for the right to be left alone and not compelled to provide services to same-sex weddings. The cause of these independent businessowners is now, to their great disadvantage, mixed together with that of intransigent government officials whose very job is to treat all citizens as equal under the law they have sworn to uphold.
Elsewhere, blogger Jon Rowe reveals in Really Professor George, et al.? that George’s statement selectively quotes (or, in effect, misquotes) Abraham Lincoln, who, Rowe shows, “obviously disagreed with Dred Scott” and urged working to overturn it, but (despite George’s assertion) did not believe Supreme Court decisions could be summarily ignored.
More. Dallin Oaks, a member of the Council of Apostles, the LDS church’s governing body, repudiates Kim Davis (and the whole Robert George crowd), signaling Mormon officeholders not to be lured into their folly:
“All such [government] officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to further their personal beliefs—religious or otherwise—to override the law. Office holders remain free to draw upon their personal beliefs and motivations and advocate their positions in the public square. But when acting as public officials they are not free to apply personal convictions—religious or other—in place of the defined responsibilities of their public offices. All government officers should exercise their civil authority according to the principles and within the limits of civil government. A county clerk’s recent invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle.”
25 Comments for “Diehards on the Anti-Gay Right”
posted by Tom Scharbach on
From a report on the Future Conference 2015 held last June with most of the conservative Christian big boys:
We’ve seen this before, roughly 60 years ago.
Resistance to Brown v. Board was similarly based on the authority of states to determine issues of education under the “Reserved Powers Clause”, and the right of state officeholders to act in accordance with state determinations. It took about a decade for that issue to be settled, and another decade to desegregation to become a fact on the ground in many areas.
I hope that things move more quickly this time. I’m hoping that resistance will soon become regional, limited to the “Bible Belt Buckle” and the hill country, and will become marginalized after this election cycle. I think that it is too early for either to happen quite yet, but I think that it will within five years, and after that it is just a matter of mopping up.
I don’t mean to be blase, but we all knew that this stage — “massive resistance” if you will — was coming.
I am surprised by the “religious freedom” twist with respect to public officials — that is an issue long settled legally, and I’m surprised to see that reviving that dead horse has become the cause de jure for conservatives — but I’m not surprised by the “state’s rights” theory of resistance and the calls for civil disobedience.
posted by Mike in Houston on
I also find novel this line of legal “reasoning” about requiring enabling legislation in order for a Supreme Court’s decisions to be implemented… especially, as in the case of marriage recognition, Obergefell simply removed the impediment for same-sex couples — even though the decision clearly did not declare “marriage” unconstitutional.
Of course, enough is never enough for the anti-gay right. Here in Houston, they’re lying about public accommodation laws — saying that passing our local ordinance will allow “biological males” to claim transgender status to molest girls in public restrooms… and oh, if they lose at the polls in November — they’ll sue… because, you know: “Jesus”.
posted by Houndentenor on
I haven’t seen any news on the ballot initiative for awhile. How is it going? I find it hard to believe that a city that elected a lesbian mayor multiple times is going to repeal a gay rights ordinance. (But then I remember the devastation of the last one so I take nothing for granted.) My experience in Houston was that the city was great, especially inside the loop, but the burbs were full of Teabagger nuts. (Tom DeLay is from Sugarland.)
posted by Mike in Houston on
The campaign is well underway — with the anti-HERO folks going full-on “men in dresses going into ladies restrooms to rape & pillage”… and since that’s not entirely getting the traction they need, they’re falling back on “criminalization of Christianity” tropes.
The Houston Chronicle has endorsed and also condemned the lies from the anti-HERO side. Today, DOW Chemicals had an op-ed in favor of the ordinance… the Greater Houston Partnership (our chamber of commerce) has endorsed it — as has the Houston Area Realtors association, Urban League, LULAC, Hispanic Chamber of Commerce, NAACP, the 2017 Super Bowl Host Committee and many local entrepreneurs like fashionista Chloe Dao.
Former Astro Lance Berkman stepped in it with a radio & TV ad (men in women’s rooms) – and was roundly denounced for his hypocrisy — having also played in NYC, Dallas & St. Louis which all have the same protections as HERO. (At least we were spared robocalls by the Duggars — but apparently Huckabee will be pairing up with Tony Perkins & the FRC to fill in.)
The coalition fighting the good fight is called Houston Unites… and it’s going to be a close one. Early voting starts next week and runs through October 30th. It’s essential that our side have a clear majority coming out of early voting to account for the typical lack of turnout on election day (which tends to lean right-wing reactionary).
And I wouldn’t normally do this — but Houston is ground zero in the next battle for LGBT equality — so even if you don’t live or vote here, consider pitching in: http://www.houstonunites.org/donate (donations through Thursday 10/15 are being matched dollar for dollar).
And you can also follow along on FaceBook – search Houston Unites or Out & Equal Houston or HOUEquality.
posted by Mike in Houston on
YouTube video of one our ads: https://www.youtube.com/watch?v=h0-2mFUby8A
posted by Lori Heine on
“And they have done a disservice to those private citizens who argue for the right to be left alone and not compelled to provide services to same-sex weddings. The cause of these independent businessowners is now, to their great disadvantage, mixed together with that of intransigent government officials whose very job is to treat all citizens as equal under the law they have sworn to uphold.”
For quite a while, I was a goo-goo and believed what many other libertarians kept saying: that conservatives were ripe for conversion to a libertarian point of view. By the time the whole photographer and cake-baker fuss blew up, I knew better. I believe small business people have the right to refuse service, even when they’re bigots.
I was still enough of a sucker to believe they were acting on consistent principle. The Kim Davis experience has knocked the remaining scales from my eyes. These people are ugly, deluded fools, and they operate according to absolutely no principle whatsoever.
That doesn’t mean I’ve changed my mind about the wrongness of expanding public accommodations laws to force pizza parlor bigots to cater same- sex weddings. It only means that I will waste no more of my time trying to reason with crazies. The only remaining value my record of having supported the pizza-bakers has is that (A) I have kept my integrity and (B) I can drag out my own quotes to shut up anybody who claims that I oppose Kim Davis because I’m some sort of screaming leftist in libertarian disguise.
Now any conservative with a smidgen of sanity is waking up in bed beside these social conservative loons with horror. They’re nursing the great grandmother of all hangovers. Homocons like Jorge are frantically knotting themselves into pretzels trying not to look ridiculous in defending the loons.
They all desperately need to be Twelve-Stepped.
posted by Tom Scharbach on
They all desperately need to be Twelve-Stepped.
Rigorous honesty — hell, any self-honesty — might have helped.
posted by Houndentenor on
We could come to a compromise but that would mean the religious right would have to acknowledge any gay rights at all which they are not going to do. They want rights for themselves and none for anyone else. There’s no way to negotiate. So for Stephen to take up the right-wing meme that gays are being mean to poor Christians is laughable. And disgusting. He should know better. Offer us a compromise. I’m tired of fighting all the time. I’d take a reasonable deal (maybe others would not but I think most gay people would be agreeable to something in which we get most of what we want). I acknowledge that religious people have rights. Social conservatives do not believe the same about me. There is no way forward in such a stalemate. It’s also why we have an internationally embarrassing fiasco playing out in the House of Representatives right now.
posted by Houndentenor on
Your confusion about conservatives and libertarians is understandable. Conservatives love to use libertarian language. It often sounds good. Freedom. Liberty. What American doesn’t respond to such language. And then in practice it’s another story. I’ve been wondering when it was going to dawn on people who actually are libertarians than conservatives do not share their agenda.
posted by Tom Scharbach on
Your confusion about conservatives and libertarians is understandable. Conservatives love to use libertarian language. It often sounds good. Freedom. Liberty. What American doesn’t respond to such language. And then in practice it’s another story. I’ve been wondering when it was going to dawn on people who actually are libertarians than conservatives do not share their agenda.
It has clearly dawned on Lori. It has dawned on me (although I have no pretense to being libertarian). I’ll bet it has dawned on a lot of people, libertarian or not.
It is pretty obvious. Libertarians, in general, have serious reservations about public accommodation laws. Many think that public accommodations laws should be repealed. Others would keep the laws in place but limit them. But none would single out gays and lesbians for special treatment. Libertarians do, in my experience, believe in equal rights under the law.
The problem is that it hasn’t yet dawned on the libertarians who might be able to make a difference — libertarians aligned with the Republican Party — that “screw the gays” isn’t consistent with libertarian principles. And until it does, the social conservative agenda will prevail when it comes to “religious freedom”, and “religious freedom” and “screw the gays” are coterminous, as they now have become in Republican circles.
posted by Tom Scharbach on
And they have done a disservice to those private citizens who argue for the right to be left alone and not compelled to provide services to same-sex weddings. The cause of these independent business owners is now, to their great disadvantage, mixed together with that of intransigent government officials whose very job is to treat all citizens as equal under the law they have sworn to uphold.
I think that a “de minimus” exemption to public accommodations laws for small, family-owned businesses is appropriate, as long as it is religion-neutral, issue-neutral and class-neutral, and the business gives reasonable notice to potential customers. So if you would drop the reference to “same-sex weddings” and make the exemption operate across the board, I’d be on board with a small-business exemption to public accommodations laws. As long as you keep singling out gays and lesbians and same-sex weddings for differential treatment, though, I’ll continue to believe that you are doing nothing more than pandering to the social conservatives.
The reason that the “cause of independent businessmen” got “mixed together with that of intransient government officials” is because politicians elected to pander to the social conservatives on that issue, just as I believe you are doing on the “independent businessman” issue.
The longstanding legal and societal understanding is that government officials are bound to treat all citizens equally under the law, no exceptions. The understanding has also been that if a government official can’t do that for reasons of personal and/or religious conscience, then the official resigns. The 2012 Republican Platform 2012 said this: “In this country, the rule of law guarantees equal treatment to every individual.” Maybe it was just smoke and mirrors, but I am naive enough to think that at least some Republicans actually believed it, and I hope most.
Social conservatives now want to change that understanding, and too many politicians are going right along with it. As far as I know, only three Republican presidential candidates — Fiorina, Graham and Pataki — have come right out and said that Kim Davis should do her job or resign. The rest are supporting her, one way or another. I can understand the hard-core social conservative politicians — Carson, Cruz, Huckabee, Jindal, Paul, Santorum — but what of the so-called “moderates”, specifically Bush and Rubio, who are waffling around saying that although a government official is “sworn to uphold the law, there ought to be common ground, there ought to be a big enough space for her to act on her conscience”. Bullshit. Do your job or resign.
I hate to think that Elliot Richardson or William Ruckelshaus would have to say about the kind of bullshit being spread around today. Or I would if I were spreading that kind of bullshit.
If the so-called “libertarians” aligned with the Republican Party had stood up for a general exemption to public accommodations laws for small business owners, rather than chicken-hawking out and going along with the “gays and lesbians and only gays and lesbians” nonsense, we might have had a genuine discussion about “religious freedom”. That, in turn, might have emboldened the weak sisters in the “moderate” Republican camp to stand up on the issue of “religious freedom” for government officials.
I’m not sure anything could have stopped the “gays and only gays and lesbians” train barreling down the Republican primary track, but nobody in the Republican Party tried to stop it or derail it, so it didn’t happen. We are where we are, with the two issues hopelessly entangled for the foreseeable future.
posted by Jorge on
“We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.”
Well that brings us right back to where we started: everyone has their own vision of what it means to uphold the Constitution, and that vision becomes modified by what their local bosses and local courts decree.
“We call on all federal and state officeholders:
To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. urn state laws passed by legislative majorities.”
That’s only a formality. The lower courts use Supreme Court cases as precedent for making their own rulings.
To suggest that the lower courts ignore the subordinate version of stare decisis would be an amusing exercise in futility because, but for a split by one or two appellate courts, it is highly likely the Supreme Court would have followed the supervisory version of it. It would be distinct minority of courts that would have a circuit precedent against forcing states to recognize gay marriages.
And, blah, blah, blah. This isn’t worth my time. I’ll just use my oath of office to fire anybody who refuses to obey my instructions. They can sue in local court and win. They won’t win if their case is “Ogergefell was wrongly decided then, and it is wrong today.” And if their argument is “It’s against my religion”, they’ll lose because if they had expressed that to me in the first place, I wouldn’t have fired them.
posted by Jorge on
Obergefell. *Sigh.*
The cause of these independent businessowners is now, to their great disadvantage, mixed together with that of intransigent government officials whose very job is to treat all citizens as equal under the law they have sworn to uphold.
That happened a very long time ago with the 1964 Civil Rights Act. The legal traditions compelling private conduct in areas of public business are just as strong as those compelling the conduct of public officials. Such that we are at the point where public officials have greater legal protection than private individuals (though it’s nearly equivalent in the case of private business owners).
Hmm, when it comes to elected officials I would agree with you.
This whole push against government overreach into “the right to be left alone” reminds me of when Ann Coulter tried to give a defense of why make a big deal of defending marriage now, at gay marriage, when conservatives have allowed divorce, adultery, and sex before marriage to be legal and/or socially acceptable. And it was a good defense: she argued that the opposite sex distinction was the “Jesus nut” of marriage, without which everything would fall apart.
The only problem was: she’s wrong! It’s exactly backwards. The “Jesus nut” was the first thing you gave up, not the last! The train has already left the station. It is much the same way with applying the legal traditions of anti-discrimination to gay marriage. You can’t block it, your chance to do so passed a very long time ago, you’re already living in an age of darkness. And what you’re perceiving as the beginning of darkness is only the illusion as your house falls down and houses sometimes do. And so you want to turn on the sun. That’s just not gonna happen. So build a new home and light a candle.
I don’t mean to be blase, but we all knew that this stage — “massive resistance” if you will — was coming.
I think its a tempest in a teapot. I’m more worried about the effect this kind of resistance–and the backlash to it, should it turn irrational–will have on hate crimes than on marriage rights. And I’m not worried about it.
Homocons like Jorge are frantically knotting themselves into pretzels trying not to look ridiculous in defending the loons.
Wait, wait a minute.
This is the same person who in the last topic tried to pull a fast one and say “Conscientious objectors do not join the military, and then refuse to serve. They avoid military service.” Absolute bunk!
posted by Lori Heine on
Excuse me, Jorge, but that is NOT “absolute bunk.” As others have also pointed out, conscientious objectors either DO refuse to join the military in the first place, seek a deferment from combat duty, or get discharged.
Call it “absolute bunk” if you want to , but that does not change the facts.
posted by Aubrey Haltom on
To repeat Lori’s point – and I think this is what she was saying in her first comment on the issue of “conscientious objectors” and the military.
‘COs’ do not demand that the military stop its “mission” (to use your word). They do not require that a complete department be realigned to service their particular objections – be they objections they had prior to being in the military, or ones that they realized after joining.
For “conscientious objectors” the issue is their own personal objection. Kim Davis does not fit anything resembling that profile. No matter how determined you are to pretend it so.
posted by Tom Scharbach on
Yup. I know a half dozen CO’s from the Vietnam era. Two served as medics in combat units, one served as a hospital pharmacist (and later went to work for the VA and retired from it), three did non-military alternate service. None of the three who served — and in particular the two who served in combat units — demanded that the units in which they served be switched to non-combatant status in order to accommodate them.
Davis does not resemble a conscientious objector. Not in the least.
She is the equivalent of a man who signs on as an officer, is assigned to a combat unit, and then, when the unit is actually assigned to a combat zone, demands that the unit be shifted over to non-combatant status in order to accommodate him.
What she is doing just doesn’t wash. She’s much more like the Vietnam-era protesters who tried to shut down military installations than she is like the conscientious objectors of the era.
posted by Tom Scharbach on
And, blah, blah, blah. This isn’t worth my time. I’ll just use my oath of office to fire anybody who refuses to obey my instructions. They can sue in local court and win. They won’t win if their case is “Ogergefell was wrongly decided then, and it is wrong today.” And if their argument is “It’s against my religion”, they’ll lose because if they had expressed that to me in the first place, I wouldn’t have fired them.
You sound bitter, Jorge. The world has changed. Marriage equality is now a fact-on-the-ground. I know that you don’t like it, but as Stephen correctly notes, the sturm und drang we are working through in the Hill Country and the Deep South “is all a rearguard action by the defeated”, Robert George et al included.
You seem to have a good heart, from what I know of you from IGF over the years. I hope that you will become reconciled in time.
posted by Jorge on
You sound bitter, Jorge. The world has changed.
Huh?
You are misinterpreting my post. I’ve seen conspiratorial thinking before. It’s resistant to reason. I am not looking forward to that front, but it is not my time to act on it yet.
The world has changed. Marriage equality is now a fact-on-the-ground. I know that you don’t like it, but as Stephen correctly notes, the sturm und drang we are working through in the Hill Country and the Deep South “is all a rearguard action by the defeated”, Robert George et al included.
The timing of the Supreme Court decision in a climate that is becoming more agreeable to the result mollifies my misgivings over the method.
What I “don’t like” is the grasp for power by those who are in it for their own self-aggrandizement. It is a condition that is very difficult to escape, but it is one that must be resisted.
I hope that you will become reconciled in time.
The state of the world can change at any time. Twelve years ago, with the selection of Pope Benedict XVI, I saw the fate of gay history, past and present, stand on a razor’s edge. The threat I saw was a much greater one: the threat of futility in the face of the grand divine plan. It’s a threat that mankind has ever faced.
Having seen that trial through, the selection of Pope Francis brings a very different one: what does it mean when the conditions making my mission necessary have improved? Oh, but there’s still a lot to do yet.
posted by Lori Heine on
Your “mission?”
Oh, goodness. You have a mission.
I’m not clear on what that is, but it must be exciting for you.
posted by Tom Scharbach on
I’m curious about the mission, too, Jorge.
posted by Jorge on
You are asking me what I believe my purpose in life to be. That is a very unusual question for one outspoken and sometime politically active poster a gay political message board to ask another.
posted by Scott Rose on
Those are not “legal scholars” who signed that statement. They are bigots and anti-gay propagandists. See the Supreme Court’s decision in Cooper v. Aaron. Supreme Court decisions ARE binding on the states, no matter what Robert George wrote into that hateful statement. Calling gay couple’s marriages “evil.” That is anti-gay hate speech.
posted by Kosh III on
“he problem is that it hasn’t yet dawned on the libertarians who might be able to make a difference — libertarians aligned with the Republican Party — that “screw the gays” isn’t consistent with libertarian principles.”
I saw this clearly when the Libertarian Party chose Bob Barr as their candidate in 2008. Bob Barr, whose hatred of gays made Jerry Falwell look benign.
At that point I lost any interest in the LP. If you want a party that truly supports Equality: Green Party.
posted by Dale of the Desert on
I agree that Jorge seems to have a good heart, and he also seems quite intelligent to me. But good intentions and intelligence do not necessarily add up to rationality. Jorge’s last comments above strike me as going beyond what I usually attribute to a sort of expressive dyslexia word salad. They are suffused with dark hints of delusional and grandiose thinking that seem more clinical than disputatious.
posted by Dale of the Desert on
“You are asking me what I believe my purpose in life to be. That is a very unusual question for one outspoken and sometime politically active poster a gay political message board to ask another.”
It was, nevertheless, the question he asked, addressing an ambiguous reference first raised by Jorge but left unclarified.