Law and Judiciary

For the Surrogacy Revolution, Thank Free Markets and Voluntary Exchange

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Reprinted from the Chicago Tribune in the Duluth News Tribune (talk about the heartland): Gay men increasingly turn to surrogates to have babies.

Yes, they are, and it represents a sea change in the lives of gay men who are, increasingly, married with children.

The surrogacy revolution is premised on free enterprise and the voluntary exchange of a market economy, made possible when government and its army of bureaucrat regulators get out of the way.

Government’s role here is limited to enforcing contracts, when necessary, as adjudicated by the courts.

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Toxic Politics About to Get Uglier

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The death of Supreme Court Justice Antonin Scalia, a jovial homophobe, will make an already toxic electoral season worse. From all indications, there will be no move by the Senate to confirm Obama’s forthcoming nominee, making the Court a central issue in both the primaries and the November election.

Already, the GOP presidential contenders who’ve specialized in pandering to the worst instincts of their party’s social conservative base (primarily though not exclusively Cruz and Rubio, among those left standing) are pledging to put forward, if elected, a nominee who will roll back Obergefell, the ground-breaking decision in favor of marriage equality. But that’s a zero-sum change, since Scalia was the most adamant voice attacking the idea that same-sex couples’ relationships could be worthy of recognition, as he did earlier when he bitterly condenmed overturning the Clinton-era Defense of Marriage Act. Of course, Court-watchers are also looking to future replacements, including octogenarian liberal stalwart Ruth Bader Ginsburg, among others.

(Chief plaintiff Jim Obergefell takes the high road, tweeting “Thank you for your service to our country, Justice Scalia. Condolences to your family and friends.”)

Obama will likely nominate someone who is unacceptably liberal to the GOP senate but not obviously extreme (“Political calculation also militates in favor of nominating someone whose leftism isn’t obvious,” the Powelineblog predicts). But recognizing the likelihood that the next president is going to make this call, Hillary and Bernie will duke it out over who will push for a hard-core progressive.

Regardless, Obama’s nominee (or Hillary’s, or Bernie’s) will be good on LGBT legal equality while in favor of running roughshod over other liberty rights (second amendment, commercial political speech, freedom from state coercion, religious dissent….).

Meanwhile, many expect the fight will bring a halt to any bipartisan cooperation that Congress might have been able to achieve this year.

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Being Reasonable

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Rod Dreher has a good post about the martyrdom of Kim Davis.  He is concerned about the effect of her case on religious freedom in general.  But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable.  In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom.  Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs.  The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent.  Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job.  That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them.  These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon.  Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections.  Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction.  Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy.  Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order.  In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended.  Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s.  The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married.  While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination.  She can be a martyr for as long as she likes.  Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates.  The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

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Support for Liberty Grows

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Despite steadily increasing support for same-sex marriage equality, “the percentage of people who agree that wedding service providers should be required to serve same-sex couples has fallen to 38% from 52% in 2013,” a 14-point drop in two years, according to the 2015 State of the First Amendment study by the Newseum and USA Today.

Correspondingly, “Americans’ support for the First Amendment rebounded strongly over the past year,” specifically, three-quarters of Americans say the First Amendment, protecting freedom of speech, of the press, and of religion “does not go too far,” a jump from 57% last year.

This rise in support for expressive and religious liberty is occurring as LGBT activists gear up to switch from fighting for marriage equality to fighting to deny the right of religious dissent. This trend is exemplified by Evan Wolfson, founder and president of Freedom to Marry, who has come out strongly against religious exemptions for businesses in the proposed federal Employee Non-Discrimination Act (ENDA), a position he seems to be doubling down on after the marriage victory.

Even those with whom we strongly disagree about gay rights and equality have fundamental rights as Americans that must be protected, or else we will all suffer from the results when the state, backed by progressive activists, declares their freedoms denied.

More. In response to those who defend using the state to destroy small businesses that don’t toe the correct line, commenter Craig123 quotes Marx (facetiously, I think), who warned progressives that “The petite bourgeoisie is the most reactionary of classes” and thus must be pulled up by its roots. Given that other commenters have in prior posts charged this blog with “homocon idiocy” while themselves spouting the anti-capitalist anarcho-syndicalist ideas of Noam Chomsky (replacing corrupt private ownership with workers councils and all that), you get a sense of what some of them, in their fervid dreams, are really after—if only those outmoded individual rights can be put asunder.

Furthermore. Why I Support ‘No Gays Allowed’ (via the Huffington Post, and penned by C.J. Prince, executive director of North Jersey Pride, in case you thought it was by some self-loathing “homocon”). She writes that “As a strong supporter of freedom of speech and freedom of religion”:

I do not want to order a wedding cake from a bakery owned by a guy who thinks I’m going to hell. I have no desire to purchase bouquets from a florist who pickets Pride parades. …

If you don’t support my freedom to marry, have the guts to come out about it. Exercise your constitutional right to free speech, and I’ll support that. Then I’ll exercise my capitalist right to shop from your competitor—and to proudly put my money where my allies are.

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Fissures and Alliances

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At the conservative Washington Examiner, Philip Klein predicts Social Conservatives and Libertarians Will Get Married:

Perhaps fiercer than any of these fights is the long-standing conflict between social conservatives and libertarians. But when the Supreme Court legalized same-sex marriage last month, they created an opening for a wedding between these two groups, which could benefit the Republican Party ahead of the 2016 election. . . .

But as the dust settles on the Supreme Court decision legalizing gay marriage, it’s becoming clearer that the debate over the issue is going to shift to one of religious freedom. And on that issue, there’s much more of an opening for libertarians and social conservatives to get along. . . .

But with gay marriage legal, the cultural debate has been moving to issues such as: Should a religiously observant baker or photographer be forced to participate in gay weddings? Or, should a Catholic Church be forced to perform gay marriages?

Whatever their differences on the underlying issue of homosexuality and gay marriage, it will be hard for many libertarians to justify any sort of government coercion forcing individuals to violate their deeply held beliefs. As a result, they’ll find themselves increasingly — and begrudgingly — on the same side as social conservatives on many of the looming debates.

Over at the libertarian Reason.com, Scott Shackford strikes a similar note, in Is This Where Libertarians and the Gay Community Part Ways?:

But just because libertarians and gay citizens were aligned in the pursuit of ending government mistreatment, that doesn’t mean other goals line up. Libertarians draw that bright, hard line between government behavior and private behavior. Others often do not, and what many gay activists see as justice and equality in the private sector, libertarians see as inappropriate government coercion.

Highlighting some of these contentions, William McGurn in the Wall Street Journal (A Win on Marriage: Now Protect Faith) addresses whether, for instance, religiously affiliated schools should be denied tax-exempt status for refusing to extend campus housing benefits given to opposite-sex married couples to same-sex spouses:

As part of a reasonable compromise that includes solid antidiscrimination provisions in education and housing, supporters of same-sex marriage should accept legislative language that prohibits the federal government from withholding or withdrawing tax exemptions from institutions solely on the basis of their opposition to Obergefell.

Underlying these specific issues—and others that will be even harder to resolve—is an urgent question: How can people with fundamentally different views peacefully coexist within the same political community? Except when confronted by pure evil, a generous pluralism is almost always the best course, as is magnanimity in victory.

I think most LGBT people, as opposed to LGBT activists and ideologues (whether beltway professionals, regional zealots, or correct-line-upholding blog commenters) are fine with live and let live, and don’t particularly wish to find and punish the tiny number of small service providers that have religious objections to gay weddings, or force religious schools to violate their faith principles. But activists need a mission. If they are intent on declaring religious freedom and dissent unacceptable hate behavior that must be rectified by the state, then this will, indeed, be a cause unacceptable to those who respect individual liberty.

More. Progressives clap and cheer dictates such as this awful ruling. Worse, not only were the bakers fined $135,000 for refusing to bake a wedding cake for a lesbian wedding, but the government has ordered them to “cease and desist” from speaking publicly about not being willing to bake cakes for same-sex weddings based on their religious beliefs, or face further fines. This is why defenders of individual rights and liberty are now at odds with the LGBT left.

Furthermore. More about the “cease and desist” order which is directed at preventing the bakery (now reduced to an online business) or, by extension, others, from stating that their services do not include same-sex weddings. Along with the extreme damages levied against the Kleins, it represents a further assault on their First Amendment rights.

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Victory for Marriage!

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Truly an historic day.

A 5-4 decision, with the majority opinion by Justice Kennedy. Chief Justice Roberts joined the dissenters (Scalia, Alito, Thomas).

Holding: Fourteenth Amendment requires a state to license a marriage between two people of the same sex. Sixth Circuit is reversed.

Here’s the opinion. Excerpt:

The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. …

The fundamental liberties protected by the Fourteenth Amendment’s Due Process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. … Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Justice Kennedy concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.

More. OK, enough celebrating. Let the political acrimony begin. From The Hill

That partisan divide could complicate the calculus for Republicans ahead of the 2016 election. Hillary Clinton, the current Democratic front-runner, has already incorporated the issue into her campaign, which she launched with a video that included a brief appearance by a same-sex couple.

But every GOP candidate has spoken out against granting a national right to same-sex marriage, so all eyes will be on how the party reconciles that stance with the court decision.

The party and its presidential contenders will have to decide whether to punt on the issue and remove it from the electoral conversation, or to dig in and fight back with a proposal for a constitutional amendment to overrule the court, as Sen. Ted Cruz (Texas) and Gov. Scott Walker (Wis.) have supported.

By November 2016, 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, I suspect.

Furthermore. Andrew Sullivan: It Is Accomplished. He recalls:

Much of the gay left was deeply suspicious of this conservative-sounding reform; two thirds of the country were opposed; the religious right saw in the issue a unique opportunity for political leverage – and over time, they put state constitutional amendments against marriage equality on the ballot in countless states, and won every time. Our allies deserted us. The Clintons embraced the Defense of Marriage Act, and their Justice Department declared that DOMA was in no way unconstitutional the morning some of us were testifying against it on Capitol Hill. For his part, president George W. Bush subsequently went even further and embraced the Federal Marriage Amendment to permanently ensure second-class citizenship for gay people in America. Those were dark, dark days.

He concludes, “Know hope.”

And this. The front page of the New York Times for Saturday, June 27.

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Rearguard Actions

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Leading up to and after a Supreme Court ruling in favor of marriage equality, we can expect to see more last-ditch actions such as those aimed at forbidding county clerks from issuing same-sex marriage licenses, which could be passed in Texas and in the deep South, until federal courts put these efforts asunder.

We’d be in a stronger position to oppose these efforts to enshrine discrimination by the state if certain quarters weren’t using the power of the state, where they are in control, to force private vendors to provide services to same-sex weddings (the comments to the Dallas Morning News story contain many claims that it’s LGBT people who are the ones being intolerant, provoking responses claiming that our intolerance is justified intolerance while your intolerance is just intolerance…or whatever).

On a related front, CNN.com looks at the schism between Christian conservatives and big business over defense of religious freedom laws. Then again, the populist right and its counterpart, the progressive left, have never really looked kindly on big business anyway.

More. 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 gets confused, often deliberately by the right, with a related but different issue: whether civil servants should be able to opt out of performing same-sex marriages. As I posted last month:

…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.

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Alabama’s End Game

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It’s not surprising that Alabama would put up a fight against equal rights to marriage under the law, but the U.S. Supreme Court’s refusal to grant a stay to a federal district court’s ruling upholding the freedom to marry, despite Alabama Chief Supreme Court Justice Roy Moore instructing probate judges to continue refusing marriage licenses to same-sex couples, signals the end game. What’s surprising is that things haven’t become even uglier in the Deep South. One can only hope that live and let live with equality under the law is soon seen as the right thing to do by all sides.

More. A statement from Alabama Gov. Robert Bentley says that while he is disappointed the U.S. Supreme court did not stay the district court ruling, he will not take action against probate judges:

“This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

“We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”

The statement is vague, but the Washington Post reports that it means Bentley won’t take action against probate judges who do or do not issue marriage licenses.

Yes, it’s about over. And Judge Moore’s stance, invoking memories of opposition to federal court rulings on desegregation, seems to have backfired. Changing times, indeed.

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Parsing Bruni

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Liberal, openly gay columnist Frank Bruni makes some worthwhile observations about anti-gay prejudice and intransigence among GOP cultural conservatives, but felt the need to score added partisan points by ignoring the Democrats’ own failings. He writes:

…most states have never enacted laws protecting gay people from employment discrimination.

Federal legislation to that effect finally passed the Senate at the end of 2013, when the chamber was controlled by Democrats, but the Republican-led House never bothered to vote on the bill. And there’s no way that the current Congress will send something like it to President Obama for his signature.

OK, but you wouldn’t know from his accusation that the Democrats controlled both House and Senate from 2008-10, and the Employee Non-Discrimination Act never made it out of committee because, well, the Democratic-led House (and Senate) never bothered to vote on the bill.

Meanwhile, the first law the Democratic Congress enacted was the Lilly Ledbetter Fair Pay Act, supported by feminist groups.

There are interesting conclusions that could be drawn about the Democratic leadership’s decision not to spend political capital to pass ENDA despite having the votes, and why LGBT political lobbies didn’t push harder for it. But you can’t get there if you’re just interested in lambasting the GOP.

More. The argument that the GOP would have used Democratic votes for ENDA as a campaign issue so Democrats were forced into inaction is specious. ENDA enjoyed some GOP support, after all, and an anti-discrimination measure was supported by most Americans. Republican opposition didn’t derail Lilly Ledbetter (a bill that did far more for trial lawyers than working women, who already had statutory rights to equal pay for equal work).

Moreover, the claim that ending “don’t ask, don’t tell” was a better priority isn’t supported by the facts; the Democratic leadership was uninterested in moving on either ENDA or DADT repeal. The latter happened only at the end of 2010, when there was an eruption by LGBT bloggers and some activists not beholden to the Human Rights Campaign, as it became apparent Harry Reid was blocking a clean vote that could pass (with more GOP support than Democrats predicted). It was this upsurge of anger from the LGBT community, plus the vital intervention of Sen. Susan Collins and Sen. Joe Lieberman, that finally pushed the vote to the Senate floor.

Sometime during the previous two years ENDA could have been moved, but the strategy was (as with immigration reform) not to pass a bill, but to keep the hope of future passage alive as a campaign issue that would help mobilize targeted voting blocs in the next election cycle.

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Potemkin VIle

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What are politicians who oppose marriage equality defending any more?

We know what they say they have in mind: the mechanical litany of protecting the right of children to have two biologically related parents; some version of Christian values; the independence of the people’s will against unelected judges; and the right of a state to define family relations. Each of those has some appeal, and some merit.

But Alabama House Speaker Mike Hubbard revealed a gap in the politics that should ease those who are jittery about the coming Supreme Court case. After a federal court last week struck down Alabama’s prohibition on same-sex marriage as unconstitutional, Hubbard said, “It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Amendment.”

Chris Geidner helpfully pointed out that, far from multiple millions, less than 700,000 Alabamians voted for the amendment. And that’s out of a population of 4.8 million.

This does not mean marriage equality is popular in Alabama. But you can’t deny that 4.1 million Alabamians did not weigh in on the sanctity of marriage. A lot of them weren’t registered to vote, a lot probably had other things to do on voting day, and you have to assume that a lot of them just didn’t really give much of a damn about this particular issue.

It’s not unlikely that, if this decision is upheld, either on appeal or as a result of the U.S. Supreme Court’s ruling next June, there will be a certain amount of discontent in Alabama, possibly more than there has been in the 36 other states whose marriage equality bans have been overturned.

But think about the magnitude of the yawn that has greeted those other decisions.

So far, the Supreme Court has only overturned one state ban on same-sex marriage, California’s. Seven million Californians passed that ban (against 6.4 million who opposed it), and the court overturned it two years ago in Hollingsworth v. Perry.

While California is a pretty blue state, it is extraordinarily hard to find any of those seven million voters who, after the court’s decision, took to the streets, stormed the courthouse doors, or even wrote letters to the editor. The decision was met by the ban’s many supporters with a shrug. All of the fear and anxiety and emotional manipulation from one of California’s ugliest initiative campaigns had been utterly forgotten. No hard feelings, who’s providing snacks for the kids’ soccer game Saturday?

And that seems to be what’s happening in the other states where bans have been falling on a weekly basis. Most people are just relieved to be getting done with this.

That might be because equality advocates have had it right from the start: this really doesn’t affect most people’s lives negatively, and the ones whose lives it does affect are positively joyous. The bans were a deeply cynical and politically timed moment in American history designed to exploit the last dying gasps of an ages-old prejudice. That spasm forced the constitutional issue, and it turns out the cynics were right in their own way. That particular form of bigotry was dying, and they timed the bans well.

This last generation of politicians still has some long-tail prejudice to cater to. But I’m feeling confident they’re going to find this snake oil doesn’t dazzle the masses the way it used to.

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