Marriage & Relationships

Supreme Arguments

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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.

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Post-Marriage Forecast

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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.

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Just a Matter of Time

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More evidence that conservative support for same-sex marriage is growing:

A 2014 Pew poll found that 61 percent of Republicans under 30 support gay marriage.

According to Data Science polling, 64 percent of self-identifying Evangelical Millennials support same-sex marriage.

And the most recent survey of incoming freshman at UCLA found that 44.3 percent of students who considered themselves “far right” believed same-sex couples should have the right to legally marry, while 56.6 percent of “conservatives” believed the same.

Which may be why anti-gay-marriage activist Maggie Gallagher, in her latest missive, sounds like an alienated and bitter self-outcast.

More. She’s not alone among social conservative activists, of course. The Heritage Foundation seems to be getting even more anti-gay. Their latest: My Father Was Gay. Why I Oppose Legalizing Same-Sex Marriage.. This sentence, in quotation marks, apparently can be found nowhere on the Internet except in articles by this author:

Statements like this are lies: “Permitting same-sex couples (now also throuples) access to the designation of marriage will not deprive anyone of any rights.”

Heritage, it seems, is on a roll. Now they’re claiming that same-sex marriage will cause 900,000 abortions. Desperation tactics.

Furthermore. Wisconsin Gov. Scott Walker, a likely GOP presidential contender, may not support same-sex marriage, but he attended the reception when his wife’s cousin was married to her partner. The Walker’ then-19-year-old son, Alex, served as a witness and signed his name to the marriage certificate. Generational change.

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Polls and Predictions

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New 2016 primary polls by NBC News/Marist College have a surprising finding, reports the Washington Post. The findings show that about half of likely GOP caucus and primary voters in Iowa, New Hampshire and South Carolina said they find opposition to gay marriage either “mostly” or “totally” unacceptable in a candidate. Fifty-two percent of likely Republican primary voters in New Hampshire and South Carolina said opposing gay marriage is either mostly or totally unacceptable, while 47 percent of likely Iowa caucus voters agree.

The findings, however, have some caveats. For instance:

There’s also the possibility that the poll question confused some people. Asking people about gay marriage opposition rather than support for it brings double-negatives into the picture, possibly confusing some poll respondents. And people are more apt to respond in the negative when in doubt. …

You also have to wonder just how much of a deal-breaker gay marriage support is. The poll asked about opposition to gay marriage—not support—so it’s a little harder to suss out just how many people would vote against a candidate who supports gay marriage. We’re guessing it’s still more of a voting issue for those who oppose gay marriage than those who support it— at least on the GOP side.

I think these poll results need to be taken with a grain of salt. But if not now, then sooner than many expect, support for marriage inclusive of same-sex couples will be an accepted conservative stance, as it is in Britain and, albeit to a lesser extent (for now) in Canada, although a religious-traditionalist bloc within the party will remain opposed.

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Endgame, with Residual Resistance

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There’s going to be a certain amount of last-ditch intransigence to marriage equality, especially in the deep South, as personified by Alabama State Supreme Court Chief Justice Roy Moore, among others. As the New York Times reports, “Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional.”

This smacks of desperation, and a last-gasp effort to incite the base. But marriage equality is not abortion; the freedom to marry does not involve ending the life of an unborn child. Hundreds of thousands will not march on Washington in protest, year after year.

The fact that so many GOP leaders are talking about accepting the appellate rulings (and, by extension, the upcoming Supreme Court decision) and moving on is testament to that. And, as the Huffington Post notes, even Conservatives At Iowa Freedom Summit Would Rather Not Talk About Gay Marriage. Many of them, at any rate. They know it’s over.

Mike Huckabee and and Judge Moore are outliers. It will pass. In the meantime, this is certainly an interesting response.

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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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Huckabee’s Non Sequitur

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“Christians who themselves abandoned the primacy of lifelong marriage to follow the divorce and remarriage customs of a secular society have as much to answer for as do those who militantly push to redefine marriage,” Mike Huckabee reportedly says in his new book. Actually, there’s no contest—divorce, while sometimes necessary in light of domestic violence or unresolvable incompatibility, by its very definition renders families asunder and denies children the presence of one of their parents in the home (and, often, in their lives). Same-sex marriage creates or reinforces families and provides children with the added safety and security of two legal custodial parents.

Huckabee may be inching away from some of his worst rhetoric of the past, but he still can’t bring himself to see that gay families are not anti-family.

More. Social conservatives can always count on Mike.

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Going for Broke

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The U.S. Supreme Court agreed to decide whether all 50 states must allow gay and lesbian couples to marry. “The court’s announcement made it likely that it would resolve one of the great civil rights questions of the age before its current term ends in June,” says the New York Times.

I believe it would have been preferable if all the appellate circuits had supported the freedom to marry, and for a while it looked like that might be happening—until a November decision from a divided three-judge panel of the Sixth Circuit in Cincinnati ruled otherwise. The Supreme Court could have requested that the full Sixth Circuit rehear that case and rule, perhaps signaling displease with the panel decision. But that’s not the route the high court took.

Now it will be all (as most court-watchers expect) or nothing (a devastating reversal of the circuits that found a constitutional right to marry).

On a positive note, Time finds evidence Evangelicals Are Changing Their Minds on Gay Marriage. Well, some of them, at any rate. And some is better than none, with more likely to follow, eventually leaving just a hardcore rump of rejectionists. Not that they should be forced to bake us cakes!

More. I’ve made this point before, but the New York Times now agrees:

The news Friday that the Supreme Court will rule on same-sex marriage brought elation from gays and lesbians…. But another group also saw a possible reason to celebrate if the court does indeed rule that way: Republicans.

If the high court resolves the issue as expected in June, it could deliver a decision that has the benefit of largely neutralizing a debate that a majority of Americans believe Republicans are on the wrong side of—and well ahead of the party’s 2016 presidential primaries.

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Domestic Partner Benefits Are (Almost) Passé

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The Washington Blade reports that the State Department is considering phasing out domestic partner (DP) benefits for unmarried gay employees now that the government can recognize same-sex marriages. There have been some objections raised, but once gay couples are free to wed throughout the nation, DP benefits will have served their purpose and can be dispensed with. This has already happened at many companies in states with marriage equality.

The Blade notes that one gay State Department employee complained: “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.”

But spousal benefits are intended for family units with a commitment to permanency, and hence marriage—two individuals who by dint of legally binding mutual obligations are treated as a collective singular. They aren’t, or shouldn’t be, freebies for shacking up. If you want the benefits of being a spouse, that requires accepting the legal responsibilities of marriage. And that, in fact, was a theme we’ve sounded here at IGF CultureWatch over the decades. Ten years ago I wrote With Marriage an Option, Who Needs DP Benefits?, as Massachusetts was about to become the first state to recognize same-sex marriages (and Beth Israel Deaconess Medical Center, one of the state’s largest employers, moved to drop DP benefits for state residents).

That 2004 post noted another post, from 10 years earlier, in which I took a critical view of activists demanding that private employers provide DP benefits to both gay and straight couples alike:

How much more constructive it would be if our movement, while pushing for full marriage rights, stopped making alliances with cultural leftists favoring benefits for unwed heteros. As David Boaz advocates in the January 1994 issue of Liberty, a libertarian journal, workers should be told “if you want the benefits of marriage, get married; but if the state won’t let you get married, we’ll be more progressive.” Benefits, he asserts, should not be seen “as one more goodie to hand out,” but “as a way of remedying an unfairness, not to mention retaining valued employees.”

He’s right. Domestic partnership benefits should be a stopgap measure for gays and lesbians until we achieve full marriage rights (based on legally recognized commitments).

That day, thankfully, will soon be upon us.

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Finding a ‘Moderate’ Gay Marriage Position as Goalposts Shift

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Jeb Bush, the new GOP presidential front-runner (but at this early stage, don’t bet the ranch), weighed in on gay marriage. What he said marks a welcome shift toward moderation in line with statements by other GOP governors of late (including Wisconsin Gov. Scott Walker and Utah Gov. Gary Herbert, among others), and is in marked contrast to earlier Bush statements (actually, in contrast to his statements of just a few days earlier).

Republicans who are not creatures of the religious right like Ted Cruz and Mike Huckabee are increasingly coming to terms with the fact that a moderate position on gay marriage for most Americans today (as opposed to four or eight years ago) is the freedom to marry.

As reported by the paper of record:

As gay couples began to wed in Florida after a court ruling, Jeb Bush, the state’s former governor and long an opponent of same-sex marriages, struck a conciliatory note on Monday, telling The New York Times that “regardless of our disagreements, we have to respect the rule of law.” …

Mr. Bush’s comments suggested a tepid acceptance of the new legal status, or at least an acknowledgment that there is little he can do to block it.

“We live in a democracy, and regardless of our disagreements, we have to respect the rule of law,” Mr. Bush said in a statement. “I hope that we can show respect for the good people on all sides of the gay and lesbian marriage issue—including couples making lifetime commitments to each other who are seeking greater legal protections and those of us who believe marriage is a sacrament and want to safeguard religious liberty.”

The Times further noted:

His remarks were markedly more sympathetic to same-sex marriage than comments he made to The Miami Herald on Sunday as he left a golf course. “It ought be a local decision—I mean, a state decision,” Mr. Bush told The Herald. “The state decided. The people of the state decided. But it’s been overturned by the courts, I guess.”

Gay rights leaders said they found Mr. Bush’s statement on Monday encouraging. Fred Sainz, a spokesman for the Human Rights Campaign, a group that has pushed for same-sex marriage, said that “most Republican politicians have been adamant in their opposition and provide no room for evolution.” Mr. Bush “at least is expressing his respect for those who support marriage equality,” Mr. Sainz said. “That’s a big change for Republicans.”

And on this point, I must agree with HRC.

According to a look at Bush’s statement and the responses to it by Business Insider, “Jeb Bush Changes His Tune On Gay Marriage“:

Bush was clearly attempting to strike a moderate tone with his statement. The Miami Herald’s Mark Caputo, one of the foremost experts on Sunshine State politics, described it as having a “neither too-hot-nor-cold Goldilocks quality.” However, it was still a marked shift from his past comments on gay marriage.

LGBT Democrats will complain that tepid acceptance is no longer acceptable. Indeed, according to Business Insider:

“Jeb Bush remains as out of touch as ever with Floridians and voters nationwide on the civil rights issue of our time,” the [Florida Democratic Party’s] chair, Allison Tant, said in a statement. “Bush championed these discriminatory policies as governor, and it’s a shame that he remains determined to stand for the forces of bigotry.”

This, of course, ignores that just a few years ago their beloved Clintons were also opposed to same-sex marriage, as for that matter was Barack Obama, but let’s not get sidetracked into the swamp of LGBT Democratic hypocrisy.

We conclude that accepting the inevitable is indeed a sign of progress for the leading presidential contenders from the nation’s conservative party.

More. Chain reaction: Marco Rubio now says about gay marriage: Courts are weighing in and “whatever the law is, we’re going to abide by it and respect it.” He doesn’t want to be out-Bushed!

I should add that I find it increasingly difficult to take N.J. Gov. Chris Christie seriously, but let’s note that his tone about gay marriage is more antagonistic that the latest statements from Bush and even Rubio. Christie is willing to accept the inevitable in New Jersey but calls on the GOP to continue fighting against the freedom to marry nationally. That attempt to court social conservatives who aren’t going to support him anyway shows, again, how out of touch he is.

Furthermore. Mitt Romney, who apparently still supports a federal constitutional amendment to outlaw same-sex marriage nationally, looks likely to challenge Bush for the center right space. So it will be interesting to see how that plays out. The divergence is being noted. The Independent reports:

This week [Bush] also set himself apart from many conservatives (and Mr Romney) on gay marriage. While not fully endorsing same-sex marriage, he said in a statement that rulings by court judges allowing it, as has just happened in Florida, should be respected by everyone. “We live in a democracy,” he said, “and regardless of our disagreements, we have to respect the rule of law.”

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