RFMA: A Bipartisan Step Forward

More from Andy Craig, on why the prosecution of small business owners being forced to provide expressive services for same-sex marriages is a consequence of anti-discrimination laws, not marriage equality.


More. Progressive Yale professor Greta LaFleur disdains Buttigieg’s marriage as insufficiently rad.

Changing Times

Related, this study concludes that “Consequently, same-sex marriage and similar reforms come at no “welfare” cost to society at large—if anything, the opposite appears to hold. We further build on previous research showing positive effects of economic freedom on happiness and on tolerance towards gay people and interact our rights measure with economic freedom.”

Yes, there are pockets of “resistance,” but that’s always true with social advancements. The Texas decision won’t survive appeal to the federal courts.

Sometimes, of course, we’re our own worst enemy:

For the Surrogacy Revolution, Thank Free Markets and Voluntary Exchange

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.

Let’s Celebrate the End of DP Benefits

Some LGBT advocates can’t recognize a sign of victory, or feel it’s not in their organizational interest to do so.

As the Washington Blade reports in Future of domestic partner benefits uncertain, “the U.S. Supreme Court’s historic ruling in June legalizing same-sex marriage in all 50 states…has prompted more private sector employers as well as public employers…to drop domestic partner benefits for their employees.”

Remarked Camilla Taylor, an attorney with Lambda Legal Defense and Education Fund, “that’s unfortunate because we believe people should not have to get a legal marriage in order to be respected as a family.”

But this isn’t about “respect”; it’s about reasonably limiting employer-provided benefits to spousal relationships with a commitment to permanency, as demonstrated by becoming a legal family unit with mutual obligations and responsibilities toward each other.

Moreover, the Blade reports:

Lambda Legal and several other national LGBT rights organizations, including the Human Rights Campaign, have issued statements calling on employers to retain domestic partner benefits for unmarried employees.

Some LGBT rights advocates have said forcing employees in a same-sex relationship to marry as a condition for receiving partner benefits such as health insurance coverage could subject them to discrimination in states where anti-LGBT discrimination remains legal.

News flash: If you’ve signed up with the HR department to receive same-sex domestic partner benefits, your employer already knows you’re gay.

While the activists want to paint the ending of DP benefits as a retrenchment, it’s just the opposite. And the employers ending these stop-gap programs haven’t suddenly turned anti-gay. As the Blade noted, according to corporate benefits attorney Todd Solomon, “the companies he knows that have dropped domestic partner benefits have a record of being LGBT supportive due, in part, to their earlier decisions to promote those benefits to same-sex couples that were barred by law from marrying.”

Which, of course, makes sense.

In a companion story, State Dept. considers phasing out DP benefits, the Blade reports that a gay entry-level Foreign Service officer said:

the State Department’s domestic partner program “was the thing that really made” him “feel welcomed” in the agency.

“While it’s great that we can get married much more easily now, my partner and I are not looking forward to being forced into a shotgun marriage due to a policy change that takes away the benefits we were promised.”

Sorry, but absent a contract, benefits are subject to change. And an employer doesn’t owe your boyfriend or girlfriend subsidized health care.

Being Reasonable

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.

Polygamy Steps Up

Now on the horizon:

  • The AP reports that “A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.”
  • A commentary in Politico by Fredrik deBoer aruges “It’s Time to Legalize Polygamy, with the subhead: “Why group marriage is the next horizon of social liberalism.”
  • Jonathan Rauch responds (also in Politico) No, Polygamy Isn’t the Next Gay Marriage.
  • Similarly, Cathy Young writes at Time Polygamy Is Not Next.
  • In response, a commentary in by Charles C.W. Cooke at National Review asks Is Polygamy on the Right Side of History?, contending that Rauch and Young are naïve if they think that the polygamous marriage movement isn’t going to ride the same emotional appeal as same-sex marriage.

That’s a lot of focus in the week following the Supreme Court’s landmark gay marriage ruling!

While there are far fewer polygamy advocates than gay people who wanted to marry, it’s clear that the polyamorous are now making the same kinds of arguments that advocates of same-sex marriage equality advanced. I have no idea how this will play out, but the debate is clearly gaining prominence.

More. The Washington Post chimes in with Is polygamy next in the marriage debate?:

Chief Justice John G. Roberts’s dissenting opinion raised the question of whether the court’s rationale could be used to legalize plural marriage down the road.

“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”

Some are now using Roberts’s arguments to revisit the idea of legalized polygamy.

Well, Roberts seems to have opened the door.

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.