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.

Victory for Marriage!

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.

Making the Conservative Case

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.”

Ireland: Economic Liberalization Yields Gay Equality

James Peron, writing at the Huffington Post, explains The Seismic Shift in Irish Values, and One Reason It Happened. He writes:

Historically, the more market-oriented the economy, the more the well-being of LGBT people increases. Politicized markets require political power, something sexual minorities rarely have, but depoliticized economies only need an entrepreneur willing to cater to a minority. …

It was the Financial Times that noted the role of material wealth on social liberalism. They wrote, “Ireland’s apparent willingness to embrace gay marriage is therefore as much a product of the Celtic Tiger years as it is a reflection of the decline of the Church’s influence.” With rising prosperity, Irish voters started embracing socially liberal reforms, matching the economically liberal reforms of a few years earlier: deregulation and more individual choice.

Peron comments, “Similar seismic shifts in cultural values occurred in other nations following periods of economic boom. The relative prosperity of the 1950s in America gave way to the social turbulence of the ’60s, which saw the culmination of not only the civil rights movement but the movements for women’s liberation and, of course, gay liberation.”

He concludes:

With the rise of individualism, it becomes harder and harder to damn those “not like us.” There is no “us” anymore, just many individuals, each with different values and priorities. Depoliticized markets ought to terrify [social] conservatives, for in them social change is born.

I’d add that in the U.S., the term “liberalism” has been co-opted by advocates of statist social engineering, but in much of the world “liberalism” still connotes opposition to economic regulation. Perhaps one reason for America’s polarization between the statist left and the social right—both opposed to individual freedom from government—is the Orwellian corruption of our political language.

More. Tweeted British Prime Minister David Cameron, head of Britain’s Conservative Party: “Congratulations to the people of Ireland, after voting for same-sex marriage, making clear you are equal if you are straight or gay.”

Gallup Says….

As of this month, 60% of Americans now support same-sex marriage, up from 55% last year, and the highest Gallup has found on the question since it was first asked in 1996.

Regarding political affiliation, the breakdown is Democrats at 76% support, independents at 64% and Republicans at 37%. However:

Those who are opposed to gay marriage are a good deal more likely to say that a candidate’s stance on the issue can make or break whether that candidate receives their vote (37%) than those who are supportive of gay marriage (21%). And both are more likely to say the issue is a defining factor than they have been in the past.

On both ends of the political spectrum, this could make same-sex marriage a more salient issue in the 2016 election than it has been previously. While pro-gay marriage voters are more likely to hold a political candidate’s feet to the fire than in the past, there is an even larger bloc of anti-gay marriage voters who could reject a candidate for espousing marriage equality.

Gallup concludes:

While an anti-same-sex marriage position should not present a challenge for GOP candidates in the primary, it could be more challenging in a general election setting given majority support among all Americans.

I’d add that GOP presidential candidates who talk adamantly about marriage being a 2,000 institution that apparently has never changed and must not be altered by the judiciary (some would allow by popular vote) are going for the base, and in all likelihood never going to be president.

But they’ll carry the hardcore religious right vote.

20 Years from DP Benefits to Marriage

As the Cato Institute’s David Boaz and I both predicted 20 years ago(!), domestic partner benefits may be left behind in an era when all couples can get married. David’s May 13 blog post at the Cato at Liberty blog takes note of the long road from then to now. He also links to both recent Wall Street Journal coverage on this development (“Firms Tell Gay Couples: Wed or Lose Your Benefits“), and my January blog post (“Domestic Partner Benefits Are (Almost) Passé“).

For the historically minded, two decades ago David addressed the issue here, among other places, and I did so here.

Rearguard Actions

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.

Cameron’s Victory

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.

Supreme Arguments

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.
[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.]
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.

Post-Marriage Forecast

The New York Times looks at the likely aftermath of a June Supreme Court ruling that there is a constitutional right to same-sex marriage:

Still, once the Supreme Court speaks, in a decision widely expected to make same-sex marriage a national right, the opponents’ anger and energies are likely to focus on a more limited issue, what they call protections for conservative religious officials or vendors who want to avoid involvement in same-sex weddings.

Gerald N. Rosenberg, a political scientist and legal scholar at the University of Chicago, said his former predictions of a wider, lasting backlash to marriage rulings had been overtaken by the “sea change in public opinion.”

Such “opt out” proposals may produce political heat, as recently seen in Indiana and Arkansas, where the governors, under pressure from businesses, felt compelled to weaken so-called religious freedom bills. But they will not impede the ability of gay couples to marry, Mr. Rosenberg said.

And this:

Yet whatever resistance strategies are adopted, many legal and political experts who have studied the impact of divisive Supreme Court rulings in the past, and the trajectory of the same-sex marriage movement, say they do not expect a lasting, powerful backlash of the kind that followed decisions on school desegregation and abortion.

Instead, the experience in states where same-sex marriage has already been legalized suggests that public opposition is likely to wither over time.

“As more couples marry, more people will know people who are married,” said Michael J. Klarman, a legal historian at the Harvard Law School and author of a 2012 book on earlier same-sex marriage rulings. “And those who oppose it will find out that the sky doesn’t fall.”

Assuming that the Supreme Court rules the right way, I think that’s correct. Same-sex marriage is not abortion; it is not the taking of life. There will not be mass mobilizations to pass Ted Cruz’s constitutional amendment.

But 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 (at the behest of angry authoritarians) will continue, and it will be ugly. Think witch hunts.

Confusing the matter is a related but different issue: whether civil servants should be able to opt out, and 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.