IGF CultureWatch

Justice Anthony Kennedy has one thing in common with Father Scalia: They both believe that human dignity is important.

Here is Justice Kennedy, overturning DOMA in U.S. v. Windsor:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

And here is Father Scalia:

. . . we should not predicate “homosexual” of any person. That does a disservice to the dignity of the human person by collapsing personhood into sexual inclinations.

Paul Scalia is a Catholic priest, and it is his formulation of the issue that crystallizes what the right thinks they are arguing over, far better than his Justice father’s dissent in Windsor.

Many of us at IGF agree that “collapsing personhood into sexual inclination” can be problematic.  Human beings are more than their sexual desires and actions.

But Scalia goes further.  In praising Fr. John Harvey’s decision to not use the phrase “sexual orientation” at all, he tries to eliminate the notion that there can even be homosexual people:

This reflects the increased appreciation for the fact that homosexual tendencies (to use a term from magisterial documents), do not constitute a fixed, unchangeable aspect of the person and therefore should not be considered an “orientation.” Further, the term does violence to a proper understanding of human sexuality. Either our sexuality is oriented in a certain direction (i.e. toward the one-flesh union of marriage), or it is not. We cannot speak of more than one sexual “orientation” any more than we can think of the sun rising in more than one place (i.e. the orient).

This is not a question of placing sexuality in the context of other parts of your identity, it is the denial that sexuality can even be a part of a person’s identity.  Sexuality transcends identity.  It is, itself, the natural order over which humans have (or should have) no proper choice.  It simply is, like the sun.

In contrast, Justice Kennedy not only accepts that some people identify as homosexual, he posits that it is up to them to choose what part sexuality plays in their identity, and, within the confines of a constitution premised on individual liberty, concludes that the federal government has no power to discourage or punish that exercise of self-definition.  Americans may choose to let their sexuality dominate who they are, or may give pride of place to their ethnicity or profession or style of dress or nothing at all.  That’s up to them.

The Catholic Church, which by definition, is composed only of fellow believers, has the ability to decide for itself what forms of identity it will accept, what brands of human freedom it finds intolerable.  This is as difficult a task for them in the modern world as it is for Islam or any other religion that prefers to adhere to a chosen orthodoxy, but that is their choice.

But the U.S. Constitution’s insistence on liberty includes the liberty of self-creation.  Americans — and not only Americans — have taken that to heart.  And that includes some people whose identity includes religion.  Here is rapper Mr. J. Medeiros:

I don’t know what it’s like to be gay. I do know what it’s like to love someone in a way that only a marriage can describe. I do know what it’s like to have an identity. To believe these things should be denied to roughly 9million people living in the US (or the much greater number worldwide) does not sit well with my conscience. The same conscience that brought me to seek my God in the first place. I am a Christian who supports gay rights.

Choosing an identity, having an identity — this is a natural part of liberty.  Marriage, as a most deeply personal act, cannot help but be an important part of how anyone presents themselves to the world.  Any institution, whether government or religious, will struggle mightily to interfere in something so bound to the self.

The constitution limits the federal government’s folly in trying.  In that, Windsor may restore a measure of the government’s own dignity.

H/T to The Dish for the cite to Mr. J. Medeiros.

The 68-year-old proprietress of Arlene’s Flowers in Richland, Washington, is the target of a lawsuit by Washington state Attorney General Bob Ferguson because she refused to provide wedding flowers for a customer who was marrying his partner. Washington state legalized same-sex marriage in December.

According to CNN’s Belief Blog, Barronelle Stutzman, an evangelical, “said she agonized over the decision but couldn’t support a wedding that her faith forbids. ‘I was not discriminating at all,’ she said. ‘I never told him he couldn’t get married. I gave him recommendations for other flower shops.’”

Not surprisingly, “Among conservative Christians, Stutzman has become a byword—part cautionary tale and part cause celebre.”

Must progressivism decree that the power of the state be so absolute that there be no exemption from its dictate for religious conviction, not to speak of individual liberty? Apparently so, given Obamacare’s model of requiring private business owners to pay for their employees contraception, including abortifacient drugs, despite their religious convictions. In both cases, the state is not stopping one party from harming another; its forcing what it sees as positive behavior upon those who have a different view.

The pagans persecuted the Christians, and then the Christians came to power and persecuted the pagans. Similarly, there’s more here of animus against those who deviate from the one-true correct political line than anything else. It’s not only mean and vulgar, it’s politically counterproductive. But I’m sure using the power of the state to crush those who don’t toe the line makes those who can now persecute feel smugly empowered.

N.J. Gov. Chris Christie has proved a big disappointment. Having vetoed a marriage equality bill passed by the legislature, he’s now campaigning for reelection on his continuing opposition, although letting gay people marry has wide and growing support in his state (a Quinnipiac poll found 64% of New Jersey voters supporting gay marriage and only 30% opposed). But even worse, Christie went livid over the Supreme Court’s DOMA ruling, putting him to the social right of Sen. Rand Paul, who seemed to welcome the decision as turning the matter over to the states—despite his own stated belief that marriage should be reserved for a man and woman (which he plays up when courting evangelicals). Paul is a principled limited-government conservative unlike Christie, who seems to have no discernible political principles.

More. Christie may indeed by trying to outmaneuver Paul among socially conservative primary voters. That’s a good reason for gay Republicans and our friends to think about supporting Paul.

Furthermore. Christie lashes out at libertarians.

Happy July 4th! In honor of the day, enjoy the Gay Men’s Chorus of Washington, D.C., singing the national anthem across from the Supreme Court after last week’s marriage decision was handed down.

Columnist Jennifer Rubin writes in the Washington Post:

If you want to know why social conservatives have effectively lost the battle over same-sex marriage with the American people, you need look no further than former senator and now Heritage Foundation president Jim DeMint.

She’s right that Heritage, while always wrong about gay rights, once could mount intelligent arguments; under Jim DeMint’s leadership, no more.

You see it’s easy: If you’re a progressive left-liberal Democrat, you can have all the nasty homophobic outbursts you want and Hillary Rosen, GLAAD and the rest of the party fronts will give you a free pass.

I don’t often agree with Andrew Sullivan these days, but this time he’s absolutely right.

More. James Kirchick weighs in:

If a white woman’s [Paula Deen] muttering the N-word in the hot aftermath of an encounter with a robber is a “revelation of actual attitudes,” how could a straight man calling a gay man a “toxic little queen” in the safety of an online social network not amount to the same sort of “revelation”?

Never mind that she stumped for Barack Obama in 2008; ridiculing Deen — this plumpy, white, Southern purveyor of comfort food — makes white liberals feel good about themselves. The same schadenfreude doesn’t apply to Baldwin, star blogger at the Hollywood insane asylum that is The Huffington Post, perpetually rumored New York City mayoral candidate and vocal advocate of all things right and liberal. For Queen Alec, the rules just don’t apply.

Furthermore. GLAAD’s last major bout of publicity was its condemnation of Fox News hosts for attending and supporting its annual Media Awards gala, following the Democrat’s Media Matters playbook. Now GLAAD defends a liberal’s anti-gay tirades. GLAAD is giving new meaning to “partisan hacks.”

Windsor was a big decision, but it was not a decision about equality — due respect to all the Facebook users who have replaced their photos with equal signs.

That’s not a bad thing at all.  A Supreme Court opinion squarely addressing the many constitutional questions about the equal protection clause (not least of them being what standard of review to use) would have gotten the court and the country into some very difficult terrain.  There was no need for that in order to overturn DOMA.  The opinion also does not say that marriage is a fundamental right, though it comes closer to that.

Justice Kennedy’s reasoning leaves breathing room for politics.  With only 14 states now recognizing same-sex marriage (I continue to count DC as a state, and of course today’s other opinion brings California fully into the fold), Kennedy again demonstrates the ability to balance justice and pragmatism in the area of gay rights.

But there’s one other big piece of political news.  The dynamics of marriage lite have now shifted.  Only full marriage comes within the court’s ruling, a point made by both majority and dissenting justices.  States will still have the ability to take half-measures, and I expect some will.  But by doing so, they will be enacting laws they cannot expect to be fully equal to marriage.  If they have any doubts, they can refer to Windsor.

So if the political argument continues to be about equality (and it should), anyone promoting civil unions as a political compromise will explicitly be compromising that.  Politics is made of compromise, but even though today’s opinion does not rest on the equal protection clause, that constitutional protection is ever more visible through the political haze.

Expect to hear more about it.

A victory, fortunately, as expected. I was surprised/disappointed to see Kennedy alone joining with the liberal bloc. Roberts, Alito, Thomas and, volcanically, Scalia, all in dissent. They seem to think federalism, a conservative principle, is situationally based on which side of the political spectrum an issue falls. Of course, liberals also shift around on federalism, and many have made the non-federalist argument that constitutional liberty should trump state law; but that’s not what the conservative federalists believe, when it suits their purposes.

What federal rights, benefits and protections couples residing in states that do not recognize their marriages will have remains to be worked out, and it will be messy.

More. From our comments:

Scalia rages about overturning ‘democratically legislated laws’ and yet he just overturned the Voting Rights Act yesterday.

And:

Last night I watched MSNBC. It was nothing but outrage that the Supreme Court overturned a “democratically legislated law,” renewed just in 2006. Do you think they will be as much outraged today, after another “democratically legislated law” and the voice of the citizens of California expressed directly through a referendum just in 2008 were overturned by the Supreme Court?

As with federalism, on the primacy of majoritarianism over constitutional principles there is hypocrisy all round.

Furthermore. As the author of the majority decisions in Romer, Lawrence and now Windsor, Reagan-appointee Anthony Kennedy earns a key spot in American and gay history.

And worth noting:

For nationwide same-sex marriage, the road to victory runs through the GOP

Rand Paul: On Gay Marriage GOP Needs to ‘Agree to Disagree’

The Happy Stories Begin

This analysis in the New York Times looks at the red-hot social issues to be decided this week by the Supreme Court: marriage equality for gays, race-based preferential treatment in college admissions and the Voting Rights Act. Writes Adam Liptak:

The extraordinary run of blockbuster rulings due in the space of a single week will also reshape the meaning of legal equality and help define for decades to come one of the Constitution’s grandest commands: “the equal protection of the laws.”

If those words require only equal treatment from the government, the rulings are likely to be a mixed bag that will delight and disappoint liberals and conservatives in equal measure. Under that approach, same-sex couples who want to marry would be better off at the end of the term, while blacks and Hispanics could find it harder to get into college and to vote.

That’s because:

Formal equality would require that gay couples be treated just like straight couples when it comes to marriage, white students just like black students when it comes to admissions decisions and Southern states just like Northern ones when it comes to federal oversight of voting. The effect would be to help gay couples, and hurt blacks and Latinos.

In a roundabout way, the analysis comes down to an argument that constitutional equality under the 14th Amendment doesn’t mean “formal” equality. Because of past historical discrimination, blacks (in particular) must receive preferential treatment in college admissions, for example, in order to be treated equally. As Kenji Yoshino, a law professor at New York University, put it, one view of equal protection “is skeptical of government classifications based on race and similar characteristics,” while the other “tries to make sure that historically disfavored groups are not subordinated.”

The problem is once you move beyond “equal means equal” regarding how the government treats you, other unintended distortions then occur (the oft referenced but still relevant cases of children of well-off African-American professionals vs. lower-income white kids with higher SAT scores). In employment affirmative action pertaining to race and gender (which are not before the court this term), the need to avoid “disparate impact” in hiring and promotion have led to de facto discrimination against better qualified pale males.

At some point, government preferences for some become unfair discrimination against others, often in service to political motives, when “formal equality” is legally interpreted as not being equal.

As Chief Justice Roberts said in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

More. On Monday, the Supreme Court ruled that, in admissions, public colleges and universities could use race as a criteria if narrowly tailored to ensure diversity in the student body, remanding the case back to a lower court to apply a “strict scrutiny” standard in judging whether the university’s use of race met this criteria. Allowing even a narrow use of race-based preferences won’t please those students with better earned qualifications who aren’t admitted so as to foster racial diversity, but it does continue to get away from the idea that rewards and punishments should be meted out to this generation to make amends for sins committed by past generations.

Exodus International, the religious ministry that promoted “conversion therapy” to help gay people become straight, has closed up shop and apologized “for the pain and hurt” it caused. It’s yet another sign of the changing times, but don’t expect the Family Research Council, the American Family Association, and other anti-gay religious right groups to follow suit anytime soon. The purveyors of ignorance for political gain will always be with us, but eventually they will be marginalized.

More. James Kirchick explains why we should all be thankful about Exodus’s end.