IGF CultureWatch

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.

A revealing page-one piece in the Washington Times, Political Stars Woo Waning Christian Conservatives:

Ralph Reed’s now annual Faith & Freedom Coalition conference in Washington last week drew a surprisingly small audience of mostly Protestant evangelical political activists—but still attracted a bevy of Republican political stars.

The audience of fewer than 400 was a fraction of the thousands who once thronged Pat Robertson’s annual Christian Coalition “Road to the White House” when it reigned as the premier event for rallying religious conservatives in the late 1980s and 1990s.

And then this:

The difference in audience drawing power between Mr. Reed’s organization and Mr. Robertson’s—over which Mr. Reed had presided as executive director—bears little correlation, however, with the current coalition’s attraction for politicians on the right.

What the CC and its successor, the FFC, still share is a gravitational pull on many of the best-known and most ambitious Republican politicians from across the country.

Still, smaller isn’t necessarily better when it comes to inclusiveness, former Christian Coalition leaders noted privately Saturday at the close of the three-day conference billed as “The Road to a Majority.”

At what point will the party’s political “stars” realize that alienating the socially moderate center to placate a dwindling old-guard of reactionary theocrats is a perpetually losing strategy?

More. On Ken Mehlman, the once-closeted former chairman of the Republican National Committee, now working to win GOP support for marriage equality, via the New York Times. Progressives who won’t forgive Mehlman his past transgressions aren’t serious about creating bi-partisan support for gay equality. They prefer Republicans to stay anti-gay, because that’s better for the Democratic party.

The Washington Post reports that if, as expected, the Supreme Court rules that the section of the Defense of Marriage Act (DOMA) prohibiting the federal government from recognizing same-sex marriages is unconstitutional, then legally married same-sex couples in states with marriage equality will reap state and federal marriage benefits. But it will be up to the Obama administration to decide whether to extend the federal benefits of marriage to those states that prohibit same-sex marriage. That’s because another section of DOMA, not before the court, allows states to not recognize same-sex marriages performed elsewhere.

As the article notes, the pressure on Obama to issue an executive order extending full federal benefits to married gay couples living in states that don’t recognize their marriages will be great. And he may do so. On the other hand, Obama has refused to issue an executive order prohibiting government contractors from discriminating against LGBT workers, saying that instead Congress should pass the long-stalled Employee Nondiscrimination Act (ENDA). So it would be in character for him to hold that, instead of taking executive action, it’s up to Congress to repeal DOMA.

That would allow Democrats to rally gay voters and their dollars in an attempt to take back control of the House—unless it’s made clear that he won’t get cover from progressives for going down that road.

Sonja West, an associate professor at the University of Georgia School of Law and a former law clerk to Justice John Paul Stevens, writes at Slate on why Justice Kennedy might rely on gender discrimination law to find a constitutional right to same-sex marriage:

The gender-discrimination framework may appeal to Kennedy in other ways, too. During oral argument, he expressed worry about the court moving too far too fast. … This approach could help Kennedy with these concerns. He doesn’t have to break new legal ground by declaring a constitutional right to be free from discrimination based on sexual orientation. Instead, Kennedy could turn to the much more developed path of our constitutional protections against gender discrimination. The outcome (constitutional protection for same-sex marriages nationwide) would be revolutionary, but the basis for it (gender discrimination) would be familiar.

It’s probably wishful thinking at this point. But too bad this line of argument wasn’t among those presented before the court.

Leaders of the Southern Baptist Convention at their annual gathering overwhelmingly backed a resolution expressing “continued opposition to and disappointment in” the Boy Scouts of America for allowing the participation of openly gay Scouts, and warning that this may be the first step toward “future approval of homosexual leaders” in the BSA.

It would be grand to see protestors at Southern Baptist gatherings holdings signs that say “Move to Russia,” where those assembled would find a regime much more conducive to their worldview. For just as they corrupt the gospel message of God’s unbounded love, so are they blind to the essential character of America as a bastion for liberty.

From a new report by the College Republican National Committee (on p. 65) on young voters:

In the survey, we sought to test the extent to which opposition to same-sex marriage constituted a “deal breaker.” We did this by asking respondents how likely they would be to vote for a candidate who opposed same-sex marriage while also holding the same positions as the respondent on taxes, spending, immigration, and defense. Because respondents had been asked earlier in the survey to provide their position on these issues, the online survey was able to customize this “ideal candidate” for each respondent based on his or her personal positions.

The answer should concern Republicans, but not completely discourage them from reaching out to young voters. Among those respondents who said that same-sex marriage should be legal (a full 44% of young voters), half said that they would probably or definitely not vote for a candidate with whom they disagreed on same-sex marriage, even if they were in agreement on taxes, defense, immigration, and spending. But among those young voters who took the “let states decide” approach to marriage (some 26% of those surveyed), only 12% viewed opposition to same-sex marriage as a reason they probably or definitely would not vote for a candidate.

Taking the sample as a whole, about a quarter (26%) of young people say they’d probably or definitely not vote for a candidate who opposes gay marriage even if they were in agreement on many other issues. That opposition to gay marriage is a “deal breaker” to one out of four young voters represents neither a hopeless situation for the GOP nor a great one. It instead raises the challenge: how can the GOP expand its appeal on the issue, or win on issues of greater issue salience so that gay marriage is not a “deal breaker” for a large number of young voters?

As David Boaz blogs, the report found:

young voters are very much against excessive government spending (though they do support higher taxes on the wealthy) and are strongly in favor of gay marriage. They want to reform entitlements but see the Republican party as “closed-minded, racist, rigid, old-fashioned.”

What cannot be sustained, won’t be.

A new national survey by the Pew Research Center confirms, In Gay Marriage Debate, Both Supporters and Opponents See Legal Recognition as ‘Inevitable.’

Relatedly, Sean Trende of the conservative-leaning Real Clear Politics site, speaking on a panel at the liberal-leaning Brookings Institute observed of the Pew findings:

The argument was no longer “let people do what they want.” It was “hate is not a family value.” The presentation of gays in media and entertainment no longer focused on sex… but on love. This also coincided with a reality for many middle Americans of sons and daughters, brothers and sisters, cousins, friends and co-workers with “lifetime companions” who came to holidays, weddings, parties, and funerals. Gay rights was embedding itself with the bourgeoisie. …

The bottom line here is that public attitudes on marijuana and gay rights are shifting, not because the public is becoming more liberal or libertarian. Rather it is the proponents of the issues who are changing, framing those issues in what we might call a small “c” conservative light. And indeed, on issues where that transformation has not occurred [abortion, prostitution, etc.], public attitudes haven’t shifted much at all.