IGF CultureWatch

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.

Sooner or later, U.S. conservatives who are not fanatical zealots will come around on same-sex marriage. But they will do so in response to conservative arguments grounded in morality and concerns for social stability, not progressive contentions—such as those deployed in the failed campaign against California’s Prop. 8, in which political ads called rousinlgy for equal access to multitudinous government benefits. For libertarian-minded conservatives, arguments favoring freedom and recognition of natural rights (not rights to government entitlements) are most resonant.

Conservative arguments have certainly been made over the years, including by writers associated with the Independent Gay Forum, the now disbanded parent of this blog. But it’s good to see the conservative case gaining new prominence.

For example, National Review has published many attacks against same-sex marriage and legal equality for LGBT people. But this week they’ve included a supportive piece by their own managing editor, Jason Lee Steorts, An Equal Chance at Love: Why We Should Recognize Same-Sex Marriage. He writes:

Another way of saying this is that sexual counter-revolutionaries are telling a noble lie. The lie is that it is immoral to think of sex and marriage as anything other than child-directed …

The trouble with noble lies is that sooner or later people see through them. When they do, they tend to have revolutionary overreactions. And when that happens, what is needed is not a complete reversion to the old view, but a synthesis of what was right in that view with what was right in the reaction against it.

In their ideological absolutism, many traditionalists today stand in the way of such a synthesis. Their position on same-sex marriage is tragic, in that they have taken a stand against burgeoning social endorsement of commitment and sexual exclusivity as ends in themselves.

In a kind of concurring opinion, Prof. Jonathan H. Adler of the Case Western University School of Law offers A conservative case for gay marriage at the Volokh Conspiracy blog, noting:

A focus on the interests of children — the actual children who are alive today and who will be born in the years to come — supports a profoundly conservative, and quite Burkean, argument for gay marriage.

Set aside some utopian conception of what marriage is or should be about in the ideal, and instead recognize the way we live now — how and why we marry and how children are brought into this world and the homes in which they are raised. There are hundreds of thousands of children alive today who stand to benefit from being raised in more-stable, two-parent households. Every state allows gay people to raise children — and nearly all allow homosexuals to adopt or serve as foster parents. If this is acceptable (and few would argue that it’s worse for a child to be raised by gay parents than no parents at all) how can it be in the interests of these same children to ensure that they are raised in less optimal conditions?

He concludes:

If the Supreme Court acts as expected, these issues will be moot. But perhaps if conservatives think more about the children, they will feel a little better about the practical implications of such a result.

It won’t convince Justices Scalia, Alito and Thomas, but the well-stated moral logic in these arguments will allow future conservatives to say, with British Prime Minister David Cameron, “Conservatives believe in the ties that bind us. Society is stronger when we make vows to each other and we support each other. I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”

Congrats to British Prime Minister David Cameron on guiding the Conservatives to an unexpected victory, and who famously said in 2011, despite opposition from many in his party:

“Conservatives believe in the ties that bind us. Society is stronger when we make vows to each other and we support each other. I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”

Looking back at the Washington Post‘s coverage at the time, Cameron’s efforts drew fire not just from some fellow Conservatives but from prominent British figures on the gay left:

“This is more of David Cameron trying to drag the Conservatives kicking and screaming into the modern world,” said Ben Bradshaw, a ranking Labor lawmaker who in 1997 became one of Britain’s first openly gay members of Parliament. “Of course, we’ll support it, but this is pure politics on their part. This isn’t a priority for the gay community, which already won equal rights” with civil partnerships.

He added: “We’ve never needed the word ‘marriage,’ and all it’s done now is get a bunch of bishops hot under the collar. We’ve been pragmatic, not making the mistake they have in the U.S., where the gay lobby has banged on about marriage.”

Civil marriage for same-sex couples became legal in England, Wales and Scotland in 2014 (but not in Northern Ireland).

More. George Will, one of America’s most important conservative (with a libertarian bent) columnists, takes a Cameron-like position when he calls Mike Huckabee’s crusade against same-sex marriage “appalling.” Specifically Huckabee argues that states have the right to nullify rulings by federal courts, including the U.S. Supreme Court.

Furthermore. Via David Frum at The Atlantic: What Republicans Can Learn From British Conservatives:

Their American detractors may grumble, but these other conservatives [center-right parties in the U.K., Canada, Australia and New Zealand] are indeed “real conservatives” … After coming to power in 2010, the Cameron government cut personal and corporate income taxes. It imposed tough new work requirements on physically capable welfare recipients. Government spending as a share of GDP will decline to pre-2008 levels next year. Thanks to Cameron’s reforming education minister, Michael Gove, more than 3,300 charter schools (“academies,” as the British call them) are raising performance standards in some of Britain’s toughest neighborhoods—a 15-fold increase since 2010. Under the prime minister’s leadership, the post office was privatized.

And also:

All have accepted gay equality, with Australia on the verge of a parliamentary vote to permit same-sex marriage. They are parties comfortable with racial inclusion and competitive with ethnic-minority voters….

Sounds like the key to electoral success.

On the morning of April 28, the U.S. Supreme Court heard arguments in Obergefell v. Hodges, which will determine whether (1) same-sex couples have a right to wed in all 50 states, and (2) whether states must recognize same-sex marriage performed in other states.

There will be much analysis and predicting and guessing, until the decision is issued in June. Since no one knows, it’s at best informed speculation.

This was interesting, from attorney Kevin Russell, via Scotusblog:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

But Russell, who has argued 11 merits cases and served as counsel or co-counsel in nearly 50 merits cases before the Supreme Court, also observed:

Kennedy’s relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question — that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.

Sexual Orientation Animus or Gender Discrimination?

The Washington Post reported:

[Chief Justice John] Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination, he wondered.

So perhaps he’s angling for a ruling based on sex discrimination, which might avoid fears of inadvertently opening up marriage to multiple partners. But a question that neither side had pressed?

It hinges on Justice Kennedy, and many remain optimistic he’ll side with the liberals in finding that the 14th Amendment’s equal-protection and due-process guarantees leave no justification for denying marital status to same-sex couples. The fun speculation starts with what if Kennedy is hesitant to go against, in his words, “This definition [that] has been with us for millennia”?

James Taranto, in a column at the Wall Street Journal otherwise fairly unsympathetic to marriage equality, picks up on Chief Justice Roberts query about a ruling based on, in his words, “a straightforward question of sexual discrimination.” Taranto suggests this would, in fact, take care of Justice Sam Alioto’s speculation about opening up marriage, on equal protection grounds, to incestuous and polygamous/polyamorous relationships, noting:

From the premise that men and women are equal before the law, it does not follow that a pair of siblings are the equivalent of a married couple, or that 1+1=4.

If Roberts were to place himself in a position where history would not judge him unkindly, that’s the way he would go.
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[Added: Lawyer friends tell me that that this has to do with the level of equal-protection scrutiny applied during judicial review. The Supreme Court has held gender discrimination to intermediate scrutiny, a notch below the strict scrutiny standard applied to race. Also, by framing a decision in terms of gender discrimination, the court could avoid a ruling with broader implications about sexual orientation discrimination in employment, housing or other contexts.

Put simply, a ruling that overturns state bans against same-sex marriage because government may not discriminate due to animus regarding a couple’s sexual orientation would have wider reach than a decision that overturns state bans because government can’t discriminate on the basis of gender against individuals who want to marry someone of the same sex. For that reason, it’s not what some activists would prefer, and explains why the gender-discrimination argument wasn’t put before the court—and why some conservatives who see a decision legalizing same-sex marriage as inevitable are pushing for using gender discrimination as the basis. But frankly, if it gives us the freedom to marry, I can live with that.

Also, via the New York Times, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage. There’s speculation that behind closed doors Roberts may be offering his support to Kennedy and the liberals if they are willing to go along with a decision on narrower gender-discrimination grounds, because a 6-3 decision would be viewed as more legitimate than a 5-4 ruling.]
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The Wall Street Journal‘s page 1 story picks up on the point where I began this post, that if, again, Justice Kennedy doesn’t swing as far as many expect him to, the likely compromise is to find states must recognize same-sex marriages performed elsewhere:

[Roberts] said it may be “a big step” to find that the 14th Amendment requires all states to perform same sex marriages, but the idea of requiring states to recognize out-of-state marriages under “domestic relations law is pretty straightforward.”

I’m dubious it will come to this “fall back” compromise, but that’s sure looking like the worst case scenario.

And what’s more… Timothy Sandefur parses an Alito absurdity about ancient Greece. And Amy Davidson in the New Yorker on Justice Alito’s Polygamy Perplex.