Marriage & Relationships

The Sixth Circuit

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A panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled 2 to 1 against the freedom to marry (full decision here).

The decision overturns lower court rulings favoring marriage equality in Michigan, Ohio, Tennessee and Kentucky, and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down the federal Defense of Marriage Act.

With a split among the circuits, a practical question is whether the cert petitions/responses will be filed quickly enough for the Supreme Court to consider the matter this term, or whether it’s pushed to next fall (meaning ruling June 2016, which would be right in time for the presidential election). Many expect the latter, which could be unfortunate. The slow spread of marriage equality through the circuits has proceeded without any real backlash to speak of, with even conservative GOP governors accepting the verdicts. In fact, many took note of a significant GOP shift during the midterm election campaigns.

Another possibility: for marriage-equality proponents is to seek en banc review by the entire circuit. If that were successful, the move through the circuits could continue without risking a bad Supreme Court ruling, or even the backlash engendered by a good one.

More. Dale Carpenter analyzes what’s wrong with the Sixth Circuit decision (with links to earlier posts in his series of critiques).

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Marriage Equality and the Liberty Movement

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While the freedom to marry for gay people is often framed as a victory for big-government progressivism (by both progressives and conservatives), Grover Norquist writes that it’s actually part of a wider trend of increasing liberty—which includes marijuana legalization, gun ownership and home schooling—and that the liberty movement draws from the political left and right (while rejecting aspects of both). As Norquist observes:

The relevant dividing line is not right versus left or Republican versus Democrat but the expansion of individual liberty versus whatever and whosoever stands in the way. …

Thirty years ago there were laws actually criminalizing gays…. Once unthinkable, now gay marriage appears inevitable. Attitudes toward gay Americans have shifted dramatically. Yes, the courts drove some of these changes, but public opinion has also shifted dramatically over the decades.

The drive for gay rights has moved quickly, and yet when some politicians have demanded that gay rights means a Christian florist or minister has to participate in a gay wedding against his religious beliefs, the pendulum appears to stop and may swing back. Why? Because freedom of religion then trumps “you do what I want.” The team that frames its side as “defending and expanding liberty” will win.

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Saving the GOP from Itself

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Back in January, Virginia’s GOP Senate candidate Ed Gillespie told the Washington Times why he opposes same-sex marriage:

“My faith also teaches me that marriage is between one man and one woman. In fact in the Catholic church it’s not just a teaching, it’s a holy sacrament just like communion. I believe that as well.”

On the day that the Supreme Court let stand the 4th Circuit Court of Appeals decision overturning Virginia’s ban on gay marriage and clerks began issuing marriage licenses in the Old Dominion, Gillespie told an interviewer he has “always felt that this is a matter for the states to determine. I don’t believe that the federal government should set policy relative to marriage. I think the states should. And, obviously, given the court’s ruling, it is the law of the land today.”

I realize he’s not saying he supports marriage equality, but the shift in tone is significant. He’s making it clear it is now, for him, a non-issue, Whereas before he felt compelled to run on his opposition to marriage equality citing his religious faith, he is now indicating it has become a done deal.

As I’ve said before on this blog, the best thing that could happen to Republicans would be for the Supreme Court to take marriage off the table, as it’s now done in 11 more states (albeit by ruling not to review appellate decisions that upended state marriage bans).

Opposition to marriage equality only pays off with the GOP’s base of older social conservatives; in general elections, support for the freedom to marry now favors the Democrats. Most GOP candidates and would-be candidates know this and must be relieved that the Supreme Court (as the appeals reach their end) is giving them a pass.

More. Our friend Dale Carpenter (who once blogged here but abandoned us for The Volokh Conspiracy just because they have exponentially more readers) explains why marriage equality will not provoke the unending resistance that abortion has engendered:

I remain convinced that even Americans who fervently oppose same-sex marriage now will see a profound difference between allowing someone to marry another person and allowing someone to abort an unborn child. We aren’t likely to see protests blocking access to marriage-license bureaus or sidewalk counselors trying to talk gay couples out of marrying. Even if you oppose same-sex marriage as a matter of religious belief, you can get along in a nation that allows it in a way that you can’t really ever make peace with what you believe is killing innocent children.

Which is also why Republican politicians (no, not all, but including legitimate conservatives like Ed Gillespie) are going to be willing to let it go.

Furthermore. I just caught up with Jennifer Rubin’s Washington Post column from Oct. 7. She quotes an AP report about the reaction by Wisconsin Gov. Scott Walker, a conservative, public union fighting Republican who is seeking re-election in November and could run for president in 2016 if he prevails:

“For us, it’s over in Wisconsin,” said [Walker], whose state’s appeal was among those the court declined with a two-word order, “certiorari denied” — meaning the lower court’s ruling stands. … “To me, I’d rather be talking in the future now more about our jobs plan and our plan for the future of the state,” Walker said. “I think that’s what matters to the kids. It’s not this issue.”

The column notes that Sen. Ted Cruz (R-Texas), “the favorite of religious conservatives,” responded with a vow to introduce a constitutional amendment designed to prevent “the federal government or the courts from attacking or striking down state marriage laws.” But Cruz and his sort are becoming outliers who pander to a narrowing base. If you’ve lost Scott Walker, it’s over.

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Supreme Court’s Go-Slow Approach

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The U.S. Supreme Court has now turned away appeals from five states looking to maintain their prohibitions against same-sex marriage, effectively legalizing gay marriages in those states and presumably some others but also leaving the issue unresolved nationally. As Fox News/AP report:

The justices rejected appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The court’s order immediately ends delays on gay marriage in those states. Couples in six other states—Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming—also should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court’s review. That would make same-sex marriage legal in 30 states and the District of Columbia.

As Justice Ginsburg signaled recently, it will likely take a split among the circuits before the Supreme Court decides to rule on whether any state can legally ban same-sex marriage. Otherwise, the issue will be allowed to proceed through the remaining circuits.

All in all, significant progress has been achieved and will continue to be made. And better no decision than a bad one. If and when one of the more conservative circuits, such as the 6th (Kentucky, Michigan, Ohio, Tennessee) or 5th (Louisiana, Mississippi, Texas), upholds state bans against marriage equality, the High Court will be forced, presumably, to weigh in. It’s widely believed that Justice Kennedy, always the swing vote between conservatives and liberals, would want to maintain his reputation at the leading judicial voice for equal rights as regards gay Americans. We’ll just have to wait a bit longer.

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Let’s Go to the Stats

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Pew Research takes a look at public opinion in the U.S. regarding homosexuality as sin, same-sex marriage, and requiring businesses to provide services to gay weddings.

The big news is that support for same-sex marriage has fallen from 54% last year to 50%. Says Pew:

It is too early to know whether this is an anomaly or the beginning of a reversal or leveling off of the growth in support for same-sex marriage widely observed in polls over the past decade.

This was noted, accurately, by the Wall Street Journal’s law blog, and for ideological purposes by by the National Organization for Marriage.

But for me, a more troubling finding is that 50 percent of all Americans consider homosexuality to be a sin, up from 45 percent last year. This mini-backlash (if that’s what it is) may be related to judicial victories for marriage equality in appellate courts, the Supreme Court’s overturning of the Defense of Marriage Act, and perhaps to local rulings that small business owners must bake cakes and photograph gay weddings even if they have religious objections to these assignments and would prefer to let their competitors take these gigs.

In other words, some of the backlash may be an inevitable result of progress toward equality under the law, and some may be self-inflicted by activists who would violate others liberty in order to compel ideological conformity.

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Marriage Politics

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“[S]everal forces, political as well as demographic, may converge to render a presidential candidacy by [Rob] Portman, the Ohio Republican U.S. senator, as at least nominally viable,” writes Stephen Koff, Washington bureau chief for Cleveland’s Plain Dealer. About a potential run by Portman, one of a handful of GOP congressmembers who support marriage equality, Koff observes:

Key to this is the fact that a Portman candidacy could align with a U.S. Supreme Court decision that would end the legal and constitutional fight over same-sex marriage. Such a ruling could come by next summer, well before the Republican voters go to the first 2016 caucuses and primaries. …

Patrick Egan, a New York University political scientist who has studied public opinion and gay and lesbian issues in politics, said, “My sense is that in their heart of hearts, Republican Party leaders would very much like to see the issue of gay marriage taken off the political agenda for 2016 and beyond.”

A credible run by Portman would signal a profound shift in the GOP. However, as Koff noted, that would be predicated on a Supreme Court ruling that takes marriage off the political table. But last week, liberal Supreme Court Justice Ruth Bader Ginsburg said that if the appellate circuits keep finding a constitutional right to same-sex marriage (albeit in decisions that are invariably stayed), then there is “no need for us to rush.”

That could mean several years delay as each of the circuits address the issue. So, ironically, supporters of marriage equality (as opposed to those who would like to keep the issue brewing as a culture war hot point, for political mobilization purposes), should be hoping that the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) breaks ranks and upholds state bans on same-sex marriage, as law professor and IGF contributing author Dale Carpenter writes it seems poised to do. That would create a split among the circuits that would dramatically hasten the Supreme Court’s ruling on the matter.

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Slippery slope on the “Sister Wives” case? Not really

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Earlier this month a federal judge struck down parts of Utah law, distinctive to that state, that had made it unlawful for persons to cohabitate in what they consider polygamous relations. Various traditionalist conservatives immediately began saying “I told you so”: this new development was really just a logical next step down the slippery slope, and the legal advance of gay marriage has now begun to usher in polygamy, exactly as they predicted. A column by Jeff Jacoby in the Boston Globe conveniently summarizes the argument. Since I disputed this very question two months ago in these columns in an exchange with Mona Charen, I am happy to weigh in.

Unfortunately, Jacoby does not give readers a very precise account of the Utah cohabitation ruling. Judge Clarke Waddoups didn’t accord legal recognition to polygamous relationships as marriages — indeed, he made it a point that he was doing nothing of the sort. Nor did he cite Perry or Windsor. The effect of his ruling, so far as I have been able to tell, is to put Utah on the same general footing as other states as regards legal treatment of households like Kody Brown’s: they won’t face arrest or other legal sanctions for cohabiting with each other, but at the same time no legal recognition will be accorded to their marriages (beyond that of the first wife).

It’s true that the new opinion does cite Lawrence v. Texas, which struck down laws against gay sexual relations, and it would be fair to say that there is something of a logical connection (or “slippery slope”) between Justice Anthony Kennedy’s broad language in Lawrence, recognized at the time as capacious, and tougher judicial scrutiny of other laws that (like the Texas statute in Lawrence) criminalize nonmarital private adult sexual activity. But that’s not the same issue as legal recognition of polygamous marriages. If decriminalizing plural cohabitation — which happened a long time ago in most of the country, Utah aside– necessitated such recognition, wouldn’t we have seen some state slide down that slope by now?

Incidentally, Judge Waddoups actually relied in some of his reasoning (through complications I will not spell out here) on principles of religious freedom as explicated in earlier pro-religious-liberty decisions. I hope we aren’t being asked to worry about a slippery slope on that too.

P.S. I should have noted that this topic was aired in the comments section of a Steve Miller post above; see Tom Scharbach’s informative first comment in particular.

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What gay marriage advocates supposedly “must” believe, vs. what they actually do believe

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Have you noticed that social conservatives’ notions of what gay-marriage advocates supposedly “must” believe are often very wide of what most actually-existing gay-marriage advocates do believe? Here’s social conservative Mona Charen writing at National Review:

Advocates of gay marriage tend to argue that those in opposition are no better than the drunken thugs who beat up homosexuals outside of bars.

Do they? She gives no examples of which gay marriage advocates draw that uncharitable comparison, let alone enough examples to show that this is the general tendency of argument on our side. Certainly it would be hard to fit Jonathan Rauch’s Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America into this category, or Andrew Sullivan’s famous and influential 1989 essay, or the work of John Corvino. Even among advocates less temperate in tone, few are unaware that most current advocates of gay marriage, from President Obama on down, previously took a position against it.

The rest of Charen’s article advances the oft-heard argument that polygamy is next, on the not particularly convincing ground that some magazine (Slate) just ran a piece by some pseudonymous practitioner of polyamory. (Yes, that’s the sure sign of a social movement on the cusp of mainstream acceptance; its spokesmen write pseudonymously). Such pieces have been a staple of reader titillation in the popular culture since well before the 1969 comedy Bob and Carol and Ted and Alice, which has at no point signaled that a serious social movement to introduce polygamy was in the offing.

Like her co-thinker Ryan Anderson, Charen imagines that no one can come up with principled reasons to back same-sex marriage that do not also extend to polygamy. The fact is that there are multiple and distinct principled reasons, which is one reason it’s not that easy to find anyone (let alone everyone) who is enthusiastic about both causes at once. Feminists, for example, surely a powerful influence on these discussions, have their own internally logical and consistent reasons to support SSM and oppose polygamy (which notoriously correlates around the world with weakened status for women, very much in contrast with gay marriage). Social-welfare advocates who know that being married is a powerful predictor of health, happiness and prosperity have often seen merit in same-sex marriage because it extends the hope of marriage to more persons, but have reason to look askance at polygamy since in polygamous cultures more males never find lifelong mates. And so forth for other groups.

Meanwhile, the West actually does have two real-world constituencies for legalized polygamy, both extremely small. One is the minuscule group of old-school Muslim and splinter-Mormon practitioners who typically ground the practice in tradition, divine will, and scripture, and who very often are implacably opposed to same-sex marriage. The other is the not much bigger fringe of polyamorists and free-love advocates, many of whom were at best tepid toward SSM, seeing it as herding gays into bourgeois domesticity. It should go without saying that the second group is unlikely to team up with the first into an effective public movement, nor are the numbers of either likely to grow radically, short of mass immigration from certain pre-modern parts of the world.

Our side is winning on gay marriage for a very simple reason, which is that millions of mothers think, “I didn’t choose for my kid to be gay, but since he is, I hope he settles down with the right person.” I have never, ever heard a mother say “I didn’t choose for my kid to want multiple mates, but since he does, I hope he settles down with the right three or four women.” Isn’t it time writers like Charen and Anderson dropped this trope?

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Back to Basics

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Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.

 

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