One the one hand, Michigan Republican won’t resign after calling gays ‘filthy’ on Facebook. And on the other, Gay marriage could be ‘gateway’ issue the GOP needs.
It may take one more presidential defeat with support for the party from voters under 30 in freefall before the GOP will stand up and say “good riddance” to the Bauers and Huckabees.
The Supreme Court hearings on same-sex marriage this past week brought a flood of media coverage, along with widely reported very positive poll numbers showing that 58% of Americans now favor marriage equality, and some 80% of those ages 18 to 29, including a majority of young Republicans. It feels like a turning point (here’s an analysis by Nate Silver). A growing number of Republicans are realizing they’re on the wrong side of history.
So there’s reason to be reasonably optimistic (i.e., Cato legal analyst: DOMA is dead). The odds, say court-watchers, strongly favor a slim majority overturning DOMA’s prohibition on federal recognition of same-sex marriage (Justice Kennedy, citing federalism, joining the four liberal justices, citing equal protection). The court looks poised to decide it shouldn’t have bothered hearing the California Proposition 8 case, leaving in place the district court ruling restoring marriage equality in the Golden State (one day we may know why they took this one when a majority felt the “standing” of those defending Prop. 8 was so problematic; did Scalia insist he have a chance to express his disdain, again, for the idea of rights for homosexuals?)
The big disappointment for some was the extremely narrow chance that the court, with Kennedy as the swing, might have used Prop. 8 to invalidate all state measures against same-sex marriage; maybe even to have ruled that, as Loving vs. Virginia made mixed-race marriage the law of the land, Hollingsworth v. Perry would do the same for same-sex marriage: legal everywhere. And listening to renowned lawyers Ted Olson and David Bois, who argued for just that, it even seemed believable, for a moment. But that day of full legal equality is now years away.
However: If one year ago gay Americans were participating on a game show and the host said, “Congratulations! You’ve just won the restoration of marriage for gay people in California and, in the bonus round, the elimination of DOMA’s prohibition on federal rights and benefits in those states where same-sex marriage is legal. Now, do you want to risk it all by rolling the dice in the All or Nothing round, with the chance of winning marriage equality throughout the nation, or step back and take your winnings. What will it be?”
I think we’d be very happy to take what we’re (likely) to get, for now. And then continue the hard work for marriage equality, focusing on both parties, tomorrow.
More. I very much liked this rejoinder from a pro-same-sex-marriage Christian, who truly understands the gospel message. But oh, the hateful comments from his reactionary, use-the-state-to-beat-down-the-sinners co-religionists. Jesus weeps.
The Wall Street Journal reports:
Several justices sharply challenged the Obama administration’s handling of the 1996 Defense of Marriage Act, which bars federal recognition of same-sex marriage. Some questioned whether the court should be hearing the case at all. …it wasn’t clear whether the justices believed they were free to rule on the merits of the case, amid questions about the legal standing of the parties.
The Obama administration said in 2011 that it believed the law was unconstitutional, but it has continued to enforce it while the case has worked its way through the courts. That stance drew sharp questioning from Chief Justice John Roberts. He told government lawyer Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower-court ruling that the Defense of Marriage Act was unconstitutional and yet enforce the law while seeking Supreme Court review “has never been done before,” Chief Justice Roberts said.
Justice Kennedy cited what he called the questionable practice of presidential signing statements, in which presidents sign a law but simultaneously issue statements that they consider parts of it unenforceable or unlawful. If a president doesn’t think a law is constitutional, he shouldn’t sign it, said Justice Kennedy. He added that the same principle perhaps applied in this case.
Based on the arguments, it seems that if the court can agree the parties have standing, Kennedy is poised to join the equal-protection liberals and strike down, on federalism grounds, the section of DOMA forbidding federal recognition of same-sex marriages in states where they are legal.
But what an irony if the court decides not to rule because of the Obama administration’s contradictory behavior of enforcing the law but refusing to defend it in court—a strategy meant to do the least political damage among religiously conservative voters (and yes, that includes many anti-gay African Americans) and LGBT activists by parsing the difference.
Ten years ago today, I attended the Supreme Court oral argument in Lawrence v. Texas. Then, the constitutional argument had been honed to make it clear to the Court that striking down the Texas Homosexual Conduct law would be following the nation, not leading it. Then, the path to eradicating sodomy laws had been trod for 40 years, as state after state abandoned the criminalization of sexual intimacy among same-sex couples. Then, the state had no defense of its law except that a majority preferred it that way. Then, the gay-rights advocate was masterful, both passionate and deeply analytical, stumbling only briefly over one tangential question. Back then, while there was no certainty about the outcome because the swing Justices (Kennedy and O’Connor) had given nothing away, there was jubilation among gay-rights advocates that the Court would strike down sodomy laws.
The contrast to today’s oral argument in Hollingsworth v. Perry, which I also attended, could hardly be more vivid. Today, several Justices seemed to think that a constitutional resolution would be leading the nation, not following it. And it would be doing so, asserted Justice Alito, to end a debate over something that was newer than cell phones and the Internet. Today, opponents of gay marriage could raise vague doubts about the uncertainty in the “sociological evidence” on the effects of same-sex marriage, a point that Justice Kennedy reiterated (so much for the trial in the district court, whose findings weren’t even mentioned today). Unlike ten years ago, they could claim that “caution” alone was reason enough to go slowly. Today, the gay-rights advocate was on a mission, as he has been for four years, to strike a decisive blow for freedom and equality, but delivered an argument that was more rhetorical than deeply substantive. He stumbled, not over trivial questions, but over a seemingly obvious and important one: How does the Court decide when a liberty claim should be constitutionalized? When, in the words of Justice Scalia in the most heated exchange of the day, did excluding same-sex couples from marriage become unconstitutional? Today, while Ted Olson was better than his opponent, there was no historic mismatch between advocates, as there had been ten years ago. Today, as the crowd exited, there was palpable anxiety among same-sex marriage supporters, many of whom who were stunned that there weren’t at least five Justices who saw the justice of the cause. The perceived swing vote in the case, Justice Kennedy, was concerned that the Court would have to cast aside 2,000 years of history. He also waived away any comparison to bans on interracial marriage, a remark that disquieted the audience.
In the end, as is usually the case, the oral argument probably won’t have made the difference. This was simply a Court not yet ready to declare a right to same-sex marriage, no matter how effective the oral advocacy. Still, it was a shame that today’s argument did not focus on sexual-orientation discrimination, or possibly even sex discrimination (one argument to which Justice Kennedy seemed receptive). Charles Cooper, defending Prop 8, conceded that there was not another instance in which discrimination against gays and lesbians would even be rational. That opening went unexploited. In fact, therein lies an answer to Justice Scalia’s question about when it became unconstitutional to exclude gay couples from marriage. The answer is not found in fundamental rights, the favored path of today’s marriage litigants, but in the Equal Protection Clause, whose application has long been understood to evolve as our understanding of what constitutes purposeless and oppressive discrimination evolves. Almost no discrimination against homosexuals would have been “unconstitutional” in 1791 or 1868, according to courts then constituted. Today, even the leading opponent against same-sex marriage can’t say the same.
Here are some quick impressions, based on the oral argument, about what the Court is likely to do and likely not to do:
(1) There will be no sweeping 5-vote declaration of a fundamental right to marry for same-sex couples, and no five-vote majority to declare the exclusion of gay couples unconstitutional on Equal Protection grounds. There may be four Justices willing to say so, but Justice Kennedy is just not there yet. It’s clearer now than it was even yesterday that he thinks there’s a big difference between criminalizing private sexual conduct and promoting same-sex unions to equal status in marriage. The quest for a nationwide right to same-sex marriage, begun when this litigation was filed over the strong objections of gay-rights groups in 2009, is not likely to end successfully in this case.
(2) There will probably be no “California only” answer from five justices, striking down Prop 8 alone. Justice Kennedy dismissed that possibility as “odd.” Chief Justice Roberts was disdainful. The “Dear Justice Kennedy” opinion of the Ninth Circuit had no supporters today.
(3) There’s even less chance that there will be a “nine-state” decision, striking down only the marriage laws of the states that grant civil unions to same-sex couples, but not the status of marriage. Even some of the more liberal Justices were skeptical, quite reasonably, that a state might be “punished” for giving same-sex couples full rights except for the title of marriage. The Solicitor General’s position that the Court could order a nine-state answer now and deal with the other states at a later date sounded like a constitutional theory that had not yet evolved.
(4) The best possible outcome for same-sex marriage advocates at this point is probably to have the Court dismiss the case on standing grounds, vacating the Ninth Circuit’s opinion, and leaving the District Court’s order in place. The Prop 8 proponents have never been able to show a particularized, personal injury from the recognition of same-sex marriage. And, despite what the California Supreme Court may have decided for state law purposes, ballot proponents do not stand fully in the shoes of the state in defending the law. If the people of California don’t like the fact that their Governor and Attorney General refuse to enforce their laws, they have a political remedy. Or they can adopt a procedure for having a stand-in appointed. But that’s an internal state governance problem; it doesn’t create Article III standing.
Chief Justice Roberts seemed sympathetic to this line of reasoning – indeed, he prodded the reluctant lawyers on both sides to address it – as did several other Justices. But surprisingly, perhaps, Justice Kennedy was ambivalent: arguing at one point that the petitioners had standing by virtue of being the “official” defenders of the proposition, but arguing at another point that perhaps the Court should dismiss the case on jurisdictional grounds.
I could see a split decision, with three Justices willing to uphold Prop 8 on the merits (Scalia, Thomas, and Alito), at least four Justices (Roberts, Sotomayor, Kagan, and Breyer) and possibly six (add Kennedy and Ginsburg) voting to dismiss the case on some variant of jurisdictional grounds, and/or four willing to strike down Prop 8 on the merits if pushed to do so (Sotomayor, Kagan, Breyer, and Ginsburg). That means that we’ll most likely get a jurisdictional decision, with no clear win or loss for the ultimate cause, a vacated Ninth Circuit decision, and some large questions about the scope and effect of the District Court’s order. More litigation, and political struggle, to come.
Trust-worthy court-watchers seem to agree, the Supreme Court, based on the Justices questions and comments Tuesday morning, seems highly unlikely to use the challenge to California’s Prop. 8 to find a constitutional right to same-sex marriage. The hearings indicated that the court may be poised to find a lack of standing for the groups defending Prop. 8, which would (let’s at least hope) leave in place a lower court ruling overturning it, which would (likely) restore same-sex marriage in the Golden state, but not in any other states.
Illya Shapiro at Cato at Liberty:
we’re left with [the] two most likely scenarios: (1) the “liberal” justices potentially joining Chief Justice Roberts on a ruling that the petitioners lack standing, which would probably vacate the Ninth Circuit ruling but leave the district court’s ruling against Prop 8 in place; or (2) no majority because Justice Kennedy (and perhaps others) would prefer to dismiss the case as improvidently granted (a “DIG” in insider terms), which would leave the Ninth Circuit’s ruling in place – so Prop 8 would also remain struck down, albeit on narrower grounds than in the first scenario.
Tom Goldstein at Scotusblog:
“Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.” …
Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
At this point, it looks like the grand hopes of a sweeping ruling granting marriage equality throughout the United States is not to be. Next up on Wednesday, the Defense of Marriage Act.
More. From the Cato Institute’s Roger Pilon, The Journal led astray by same-sex marriage, taking issue with the Wall Street Journal‘s editorial urging the Supreme Court to uphold DOMA:
It is troubling that the same-sex marriage issue has led the Journal to subscribe to the mistaken jurisprudence that it so often rightly and powerfully condemns in those other areas, as when economic liberties are in the government’s crosshairs. Liberty is of a piece. The simple presumption of our Constitution is liberty, with government authorized and empowered to protect it, and obligated to offer compelling reasons for restricting it when that should be necessary. In recognizing rights, the Court is not “creating” them. It’s simply acknowledging that they were always there, even if we haven’t always lived up to our principles and recognized them, as clearly we have not. That’s not judicial activism. It’s simply the Court engaged in making explicit what was always implicit, even if we haven’t seen the matter clearly until now.
Furthermore. Walter Olson writes at the New York Daily News, in The high court’s marriage jitters, that “signs point to a cautious ruling.”
Jonathan Rauch seems to concur, as does Dale Carpenter, in the post above.
How sad. Iinstead of reaching out and forging broader alliances with those who are real or potential allies on the right, many on the LGBT left would rather serve their partisan masters. A particularly blatant case in point: the Gay & Lesbian Alliance Against Defamation, once again doing what so many LGBT activist groups do—working to keep conservatives and Republicans as anti-gay as possible.
Fox News anchors were courted by GLAAD to attend the group’s annual media awards hoop-la, and when they did, GLAAD issued a stinging denunciation of Fox News and its anchors for, among other things, attending the event. If the anchors hadn’t shown up, GLAAD would have issued a stinging denunciation. Which is all the more shameful, since the views expressed by Fox News anchors and commentators aren’t monolithic and are becoming better on gay issues. Or actually, maybe that explains GLAAD’s (and Democratic front group Media Matters, to which GLAAD seems beholden) going into attack mode.
Hint: For Media Matters, and through it GLAAD, it’s all about maintaining the power of the party.
More. GLAAD could learn a thing or two from John Corvino and Bruce Bawer, who actually care about winning over conservatives. Via this week’s Washington Post book review of Corvino’s “What’s Wrong with Homosexuality?“:
Many gay-marriage opponents sincerely believe their own rhetoric that they want to protect marriage rather than stigmatize gays. And taking this rhetoric seriously is one asset of Corvino’s book, resulting in a level of civility whose absence in our culture wars is not only unpleasant but often ineffective in changing minds.
From respected conservative legal theorist Michael McConnell, an interesting WSJ op-ed on DOMA: The Constitution and Same-Sex Marriage. He backs a federalist approach that finds a reasonable way to restore same-sex marriage in California (arguing that those seeking to void the district court ruling that threw out Prop. 8 lack standing to do so) while also getting rid of DOMA’s ban of federal recognition of same-sex marriages in states where they are legal, without imposing same-sex marriage nationally. That sounds like a decent solution (certainly, we could do much worse), avoiding a political backlash in southern and conservative states. Unless equal really does mean equal under the Constitution, whatever the backlash.
This New York Magazine report shows how it’s a fearsome muddle to get divorced when you’re married in one state but not in another. States have residency rules for divorce but not for marriage, so if you can only get divorced in a state that recognizes same-sex marriages but you live in on that doesn’t, then someone you may have broken up with years earlier may claim a legal right to make medical decisions for you and inherit your property. And if the Supreme Court ends federal marriage discrimination and nothing else, the not-quite ex could claim the beneficiary’s share of your Social Security. You also can’t move on and marry somebody else while residing in a non-marriage-equality state. That’s not good.
More. Via Slate, The Sexual Fetish of Gay Marriage Opponents: “Defenders of DOMA and Prop. 8 say marriage isn’t about love or parenting. It’s about coitus.”
Furthermore. Richard Epstein, thoughtfully, on Gay Marriage and the Libertarian’s Dilemma:
Though I am still uncertain of how I would come down in these two cases, in the interest of full disclosure, I did lend my help to the anti-DOMA team…. But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. Now, if he would only agree to return to the more general principle of freedom of contract embodied in Lochner v. New York as part of that decision, then it would indeed be a red-letter day for the Court.
George Will argues that the Defense of Marriage Act (DOMA) is an unconstitutional abuse of federalism and that:
Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.
More evidence of the changing wind: NFL players, rappers, conservatives among those supporting same-sex marriage.
Politico informs that, regarding Hillary Clinton, “the gay community adores her.” She recently announced her support for marriage equality via YouTube by “speaking directly to the camera without an interviewer who could ask follow-up questions on issues like the Defense of Marriage Act, which her husband signed.” Nevertheless, “Unlike [GOP Sen. Rob] Portman, who was castigated by some on the left for taking what was seen as a selfish position, Clinton—who in 2008 was against gay marriage—was praised.” And, of course, the Human Rights Campaign led the parade in terms of gushing.
Similarly, When ‘Yes’ isn’t enough.
More. Why support for gay marriage has risen so quickly:
Combine the fact that young people are heavily supportive of gay marriage and every generation is growing more in favor of legalization as they age and you see why the numbers on gay marriage have moved so quickly—and why they aren’t likely to ever reverse themselves.
Furthermore. Via Margaret Hoover, Slowly, GOP shifting on same-sex marriage:
Pro-marriage-freedom Republicans are on the right side of history and in time their courage and contributions will help erase the stain of bigotry that holds the conservative movement back and stops us from connecting to a rising generation of Americans.
Twenty years after the publication of A Place at the Table, our friend Bruce Bawer ruminates on the meaning of “gay culture”:
When gays, socially speaking, are in the process of being integrated into the mainstream, and when the cultural works created by and/or about gay people are no longer consumed exclusively or even mostly by gay people, what does this say about what gay culture has become? In what ways, moreover, has the mainstreaming of openly gay culture (as opposed to the covertly gay culture of the Noel Cowards and W.H. Audens that was always a part of the mainstream) changed the mainstream? These are big—and fascinating—questions, and the answers are elaborate and complicated.
The IGF blog (and the “Culture Watch” column that preceded it, syndicated in a few brave gay papers), had its origins in the gay culture struggles that Bruce has analyzed so well.
The Republican National Committee released a sweeping report aimed at revitalizing the party following its losses last November, noting that:
For the GOP to appeal to younger voters, we do not have to agree on every issue, but we do need to make sure young people do not see the Party as totally intolerant of alternative points of view. Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays—and for many younger voters, these issues are a gateway into whether the Party is a place they want to be.
If our Party is not welcoming and inclusive, young people and increasingly other voters will continue to tune us out.
This has not gone down well with many. Conservative columnist Byron York comments:
That is not a flat-out declaration that the RNC supports gay marriage— but it’s pretty close. In addition, RNC Chairman Reince Priebus, in introducing the report Monday, said Sen. Rob Portman, R-Ohio, had “made some pretty big inroads” into broadening the party’s appeal by declaring support for gay marriage last week. Again, the report’s position puts the RNC in danger of a breach with key grass-roots supporters.
That’s mild compared to what Rush Limbaugh had to say:
If the party makes [gay marriage] something official that they support, they’re not going to pull the homosexual activist voters away from the Democrat Party, but they are going to cause their base to stay home and throw their hands up in utter frustration.
Thus the battle lines are drawn, with action and reaction from the party. But who would have thought that the RNC itself would ever have taken such a bold step—not the LGBT progressives, who have written off the party as hopeless.
