Legal Doesn’t Mean Acceptable

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The Boy Scouts of America recently affirmed that the organization will continuing banning gay scouts and staff, which includes the ousting of a lesbian den mother. In 2000, the U.S. Supreme Court ruled that the organization could ban gays whose conduct, the Boy Scouts argued, violated its values.

In other news, the president of Chick-Fil-A, the fast food chain which has reportedly donated millions to anti-gay organizations, stated that the company supports “the biblical definition of the family unit.”

On a much smaller scale, the Advocate reported that a Denver cake shop refused to make a gay couple’s wedding cake.

An iconic national youth organization, a major U.S. corporation, and a local small business each expressed their opposition to gay legal equality. The solution remains the same: to publicize and respond to their positions so that Americans can make informed choices. In the case of the scouts, this has meant keeping sons out of the group. As Rabbi Paul Menitoff wrote in 2000:

our response to the exclusionary policy of the Boy Scouts of America must be unequivocal; we must condemn it publicly, resign from the organization, refuse to sponsor or house Cub Scout or Boy Scout groups in our congregations, and ask groups (e.g. the United Way) that contribute to the Boy Scouts financially to withdraw their support. To do less is to condone discrimination and to contribute to an environment in our country that is already far too accepting of prejudice and violence against gays and lesbians.

Anti-gay groups are also free to voice their views and promote boycotts of businesses that support legal equality, as the American Family Association does. In time, however, the light will expand as darkness recedes, and ignorance, prejudice and discrimination give way as they become unacceptable.

More. The Boy Scout’s ability to deny gay members and staff was famously upheld by the Supreme Court, and no one doubts that Chick-Fil-A can give money to anti-gay groups. Regarding the Denver bakery, the owners say they serve everyone gay or straight, but they won’t make anyone a same-sex wedding cake. Whether this is disingenuous or not, I believe they have the right to produce the products they wish to produce. Others disagree. The comments to the Advocate article reflect two viewpoints, statist and libertarian: “It appears that Denver has a Human Rights Ordinance that bans anti-gay discrimination…. File a complaint with the city” vs. “They have the right not to make the cake. But we have the right to spread the word, and boycott the business.” Liberty is best served by the latter approach.

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A New Generation: Not Your Father’s Conservatives

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updated July 16, 2012

Young Conservatives for the Freedom to Marry is a new campaign to highlight and build support for the freedom to marry among young conservatives. According to its website, the campaign is reaching out to “the rapidly growing numbers of young conservatives across the country that agree all Americans should be able to share in the freedom to marry. The freedom to marry is not a partisan value and is consistent with basic conservative values of responsibility and community, limited government and individual freedom.” Moreover:

Last year’s Public Religion Research Institute Survey found that nearly half (49%) of Republican Millennials favor the freedom to marry, while 19% of Republican seniors and 31% of all Republican said the same. Clearly, the next generation of conservatives is driving these tectonic shifts in their party, and their thoughtful voices and willingness to depart from the perspectives shared by their older party members should be applauded and supported.

Our friend David Lampo has written a new book that fits in nicely with this effort, A Fundamental Freedom: Why Republicans, Conservatives, and Libertarians Should Support Gay Rights. He explains why “an anti-gay agenda succinctly exposes the hypocrisy of those who talk of limited government and individual rights but ignore both when it comes to gay rights and other personal freedom issues.”

More. Coverage at the Huffington Post, where David Lampo is quoted observing, “The religious right has ruined our brand. Hopefully they haven’t ruined it permanently.”

Furthermore. Rick Sincere covered the event for the Washington Examiner, taking note of featured speaker Congresswoman Ileana Ros-Lehtinen (R-Florida) who remarked: “It’s bad enough that we have to deal with the overregulation of our economy. No one should have to deal with government red tape when it comes to committing themselves to those whom they love.”

More still. Here’s a link to Lampo’s July 16 op-ed in the Los Angeles Times. He writes:

Leading religious organizations and their spokesmen argue that gay rights are simply incompatible with conservative principles and policies. Yet an examination of polling data shows that most rank-and-file Republicans view gay rights issues — including the repeal of state sodomy laws, equal access to the same legal rights and privileges as heterosexuals, and the right to serve in the armed forces — as compatible with core Republican principles of individual liberty, limited government and free enterprise.

Eventually, the party’s leadership will catch-up to the rank and file.

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One Drop

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The Russian Orthodox Church is ready to ask the government to block Facebook throughout the entire country.  The reason? Facebook has added two icons to its marriage set, which users can  post on their page to identify their relationship status – a gay couple and a lesbian couple.

Demonstrating that reactionary churches worldwide share a similar uncontrolled overreaction when it comes to same-sex couples, church leaders want Facebook to “stop flirting with sodomites.”  They are clear about what they want:

“We demand only one thing: Facebook should be blocked in the entire country because it openly popularizes homosexuality among minors…”

It’s unlikely many Russian minors will be getting married, much less gay-married, but you can see where these folks are coming from.  Facebook is a private company, and it has a lot of appeal, both to young people and those of us who are young at heart.

I don’t know much about the demographics of the Russian Orthodox Church, so I can’t tell whether this is another religion engaging in culture envy.  But as with their American evangelical and middle eastern Muslim counterparts, the hysterical rhetoric of the church leaders is revealing.  The vast, vast number of Facebook users are not homosexual, and will not be using the gay marriage icon.  But the simple fact that it is available to the small minority that is homosexual is enough to taint the entire company, so much that it should be banned by the government.

This disproportion has characterized prejudice for a very long time.  It is the One Drop Rule for gay tolerance: Any group anywhere that even acknowledges the existence of gay couples (or even gay singles, I’d imagine) is completely tainted by the stigma of that acceptance.  No tolerance can be tolerated.

I’m fairly confident ordinary Russians will have the same response to these Church Ladies that Americans tend to have.

And it’s nice to know that it’s not just American religious extremists who hate the private sector.

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Haggard is not a “Gay Father,” but Regnerus is Still Wrong

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A few weeks ago I—like many others—wrote a criticism of Mark Regnerus’s study of child-welfare outcomes in different family structures. He claimed that his study debunks the idea that children in same-sex households do just as well as children in traditional heterosexual households; I argued (and still maintain) that it does no such thing.

My criticism prompted a rebuttal from Maggie Gallagher, which prompted a rejoinder from me and then another from Gallagher.

It turns out that Gallagher is right in one detail, and I want to set the record straight.

Our disagreement was about who counted as a “Lesbian Mother” or “Gay Father” in Regnerus’s study. I argued that Regnerus’s criteria were so loose that even, say, Ted Haggard would count as a “Gay Father.” Section 2 of Regnerus’s report states that the survey asked the following question:

“From when you were born until age 18 (or until you left home to be on your own), did either of your parents ever [emphasis in original] have a romantic relationship with someone of the same sex?” Response choices were “Yes, my mother had a romantic relationship with another woman,” “Yes, my father had a romantic relationship with another man,” or “no.””

Regnerus goes on to explain that a “Yes” answer to these questions trumped other categories for the purpose of the study. (The categories divide children as follows: 1. Intact Biological Family (IBF), 2. Lesbian Mother (LM), 3. Gay Father (GF), 4. Adopted, 5. Divorced Later, 6. Stepfamily, 7. Single Parent, 8. All others.) Here’s the part that misled me:

Together these eight groups account for the entire NFSS sample. These eight groups are largely, but not entirely, mutually exclusive in reality. That is, a small minority of respondents might fit more than one group. I have, however, forced their mutual exclusivity here for analytic purposes. For example, a respondent whose mother had a same-sex relationship might also qualify in Group 5 or Group 7, but in this case my analytical interest is in maximizing the sample size of Groups 2 and 3 so the respondent would be placed in Group 2 (LMs). Since Group 3 (GFs) is the smallest and most difficult to locate randomly in the population, its composition trumped that of others, even LMs.

Regnerus’s explanation implies that GFs and LMs trumped all other categories. But in fact, they trumped all of the others except IBF. Had I looked up the survey instrument (which I should have) rather than relying on the above narrative, I would have spotted this.

So while the substance of my criticism stands—this study is not a study of same-sex parenting at all—my examples need to be altered. For example, Ted Haggard (who is still in an “Intact Biological Family”) would have to be replaced, with, say, Jim McGreevey, or some other person who divorced before his children reached eighteen.

None of this should be much comfort to Regnerus, who, failing to find a statistically significant random sample of such households, went ahead anyway and framed his study as one about same-sex parenting. But only 23 percent of those in the “Lesbian Mother” category reported living with their mother and her partner for at least three years, and less than 2 percent of those in the “Gay Father” category reported living with their father and his partner for at least three years.

It should not surprise us that these children’s outcomes look like those of children of single parents and divorced parents—because the overwhelming majority of them are the children of single parents and divorced parents.

Comparing them to “Intact Biological Families” for the purposes of drawing conclusions about same-sex parenting was, is, and will continue to be bogus.

 

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The Sin

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I am unqualified to criticize the theology in Robert Gagnon’s hefty essay on the biblical errors in Alan Chambers’ leadership of Exodus International.  But what’s at stake here is pretty considerable, and more than just theological.  Chambers is president of Exodus, the group that assists Evangelical Christians with “same-sex attraction.”  Exodus had famously supported the notion that gays could change their sexual orientation, but Chambers – a gay man who is satisfactorily married to a woman, though he does not deny he continues to be sexually attracted to men – says now that he doubts such change in orientation is possible.

His change about change is important, as the sheer length of Gagnon’s critique (35 pages, with appendices) suggests, because it lets us see what Maggie Gallagher and the NOM Choir try so furiously to obscure: all that is left of the debate over homosexuality is the vestigial tail of a religious question about sin.

Gagnon starts out with religion (the entire first three pages are devoted to the writings of the Apostle Paul), but it’s soon clear he is quite exercised about the fact that Chambers may be removing Exodus from the political playing field.  Chambers’ comments have made “homosexualist” groups “smell blood in the water.”  They will take advantage of Chambers’ naïve attempt to be apolitical.

Religion vs. Politics is now the gold standard for discussing gay equality, and Gagnon’s invocations of that framework show how closely he has been listening to his brothers and sisters in Christ who don’t wear their theology on their sleeve.  Gagnon explicitly adopts Maggie Gallagher’s “they’re out to get us” mentality (perfected by Frank Schubert), charging that Chambers’ abdication threatens “foisting on us laws that will attenuate our own civil rights and coerce acceptance of homosexual unions in the civil sphere.”

That kind of talk, in an essay that purports to be almost exclusively about what proper theology has to say about the sin of homosexuality (and sin, in general) is telling.  Chambers’ comments about sexual orientation and change would not be all that consequential but for the fact that they undermine the entire religious foundation of the remaining phantoms about homosexuality.  Gagnon frets about “serial-unrepentant homosexual practice,” and sees acceptance of that as sending us all down the slippery slope to committed homosexual unions.  To Gagnon, this is a moral disaster in the making because it erodes the moral superiority that religious believers so love to lord over ignorant or vicious homosexualists:

. . . my main concern is that Alan’s comments to those living a homosexual life are ultimately unloving and ungracious. I don’t doubt that Alan intended his comments to “gay Christians” to be otherwise. Yet the actual result is to leave such persons deceived by giving them a message of “peace and security” when instead danger hangs over them (1 Thess 5:1-11). Who is gracious and loving? The parent that assures a child that crossing a busy intersection without looking both ways will produce no harm or the parent that does everything in his or her power to warn the child about the potential harm? Obviously the latter, for the warning is part of the makeup of a loving parent. In fact, state social services agencies count the former as abuse.

The arrogance of such christianity is what drives many truer Christians mad.  Lesbians and gay men are not the only ones who have been so lovingly parented by christians who claimed to have only the best interest of fully adult “children” at heart.  This is the same brand of tender love that christian men were expected to exercise over their wives (and all women), and that christian whites had toward blacks.

But the toxic paternalism is not just for christians.  That reference to “state social services agencies” is another slip where Gagnon reveals that while his concern is religious in concept, he intends it to be civil in application.  His religious critique shows that his real interest is secular politics.

It’s certainly fair for religious people to participate fully in American politics.  But there is a disconnect between arguments believers find religiously persuasive and those that will change the minds of non adherents.  Sin, in particular, has always been a tricky notion in interfaith contests, and leaves nonbelievers cold.

But it’s not just in the political realm where Gagnon overestimates his own brand of expertise.  He acknowledges Chambers may be right that homosexual orientation might not be entirely changeable, but says even incremental changes could still be valuable:

It is not necessary that reparative therapy achieve complete transformation from “gay” to straight in order to be helpful. One or two shifts along the Kinsey spectrum or a change in intensity of homosexual impulses can be beneficial.

I don’t know what is known about how or whether sexual orientation can be changed, but I’m pretty confident that no one yet has studied whether something as inherently subjective as sexual attraction can be moved – or measured – fractionally.  In any case, I’m not persuaded that theological scholars are the ones best suited to be pronouncing on the prospect.

Gagnon’s primary point is that social acceptance of homosexuality “regularizes the sin.”  I can’t judge the merits of his theological case, but this is, in the end, only a theological case, and only one of those.  Other theologians obviously disagree, as do other non-theologically inclined Christians.

But that divide within Christianity itself, endangers the monopoly that the fundamentalist brands of christianity demand, and in their worst moments have tried to foist on the general public.  While Christian thinking has been all over the map on so many other issues, the more fundamentalist tribes have generally been able to hold the line on homosexual sin.  But for them, too, that line is fading, and Chambers exacerbates the problem.  If sexual attraction can’t be changed, and if homosexual attraction in particular can’t be stamped out or ignored, then the case for just accepting gay people within the civil law is not just strong, its opposite is inhumane.

This is the turning point for religion today.  The possibility that lifelong heterosexual marriage may not be exactly at the center of the moral universe is as threatening to Gagnon as the location of the earth itself was to Pope Urban VIII when Galileo was sentenced to prison.  Gagnon is fighting every bit as hard (with more limited resources) for the status quo.

Galileo and Copernicus did not eliminate the earth, they just noticed – and said — that it was located somewhere other than where the Vatican had always placed it. That’s a religious problem only if you are under the impression that earthly religious leaders are as inevitably correct in their scientific thinking as they are in their theology.  But the Bible isn’t an authority on everything, and sometimes people use the Bible’s words to make moral issues out of things that aren’t properly moral.  The earth is no less important because it circles a larger body, and heterosexual marriage is no less important because it is not in every human’s nature to be attracted to the opposite sex.  There is plenty of room in the universe for God, still, and morality — even sexual morality.  And maybe God approves when humans acknowledge their errors.

Chambers isn’t Galileo, just as Gagnon isn’t Pope Urban; but today’s evangelical Inquisition is every bit as vainglorious as its Catholic predecessor, every bit as contemptuous of unbelievers, and every bit as likely to expose the sin of its own excess of hubris.

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Bigger Government: Always Good for Gays?

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From my viewpoint, Obamacare’s requirements that employers with 50 or more workers must provide high-level health benefits (which many employers can’t afford) or pay a penalty/tax of $2,000 or more per worker (which many employers can’t afford) will drive many relatively small or marginally profitable business out of business, or to reduce their hiring. Others may disagree. But according to the Washington Blade‘s coverage, the National Gay & Lesbian Task Force believes Obamacare, and in particular its Medicaid expansion, “is particularly important for LGBT people because they disproportionately live below the poverty level.” Moreover, according to a Task Force spokesperson:

“The Medicaid expansions are going to end up being hugely important for LGBT people because it expands coverage to low-income people, and LGBT people are disproportionately low-income … We know this because of rampant employment discrimination and housing discrimination.”

I suppose there is some poll that the Task Force could cite to support this (the article refers to the group’s own report, for what that’s worth), but much independent research indicates that gay people are not suffering from severe economic disadvantages, and advocates have been hard press to provide real evidence of “rampant employment discrimination and housing discrimination.” Isolated incidents, yes. More than that, no. (As the article goes on to note, the economic status of transgendered people is more likely to be marginal.)

And even if this all were true, further burdening the Medicaid system that’s already overextended and heading toward bankruptcy with a requirement to cover those who earn 133% above the federal poverty level, to be funded by still-more federal and state deficit spending (and, in part, with higher taxes on “the wealthy,” which also depresses economic growth and investment), isn’t likely to improve things in the long run—quite the opposite. But if you’re an LGBT progressive activist organization, you’re going to back big government spending solutions on the grounds that they’re good for gays (er, LGBTs), I suppose.

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Privacy, Silence, Neutrality and Anderson Cooper

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I am as glad – and grateful – as anyone for Anderson Cooper’s non-coming-out coming out.  There are some lessons in this story worth talking about.

People who know Cooper seem to agree with him that he was not really in the closet except with respect to the general public.  That is a telling fact.  As the walls of the closet have come down on the private side of people’s lives, there is still that remaining door that can be opened or closed to the public.  The people we know on our side of the door – the private side – are far more likely today to know we are homosexual than they ever have been.  Cooper enjoyed that private side of the closet with his family and friends.

But Cooper is not like the rest of us (and not just in what he does for a black t-shirt).  For those of us without a public face, the need to come out or not to others – to decide whether to open that door — is a recurring issue; we are always meeting new people, and regularly face the problem of how much to reveal to whom, and in what circumstances.

People like Cooper who have a large public reputation have to deal with this a little differently.  Word spreads about the famous, particularly about something as personal and controversial (or at least pretty interesting) as homosexuality.  News of my homosexuality never hit Twitter; it never really achieved a threshold of being news.  For Cooper, opening that door once to a world that knows him as a personality pretty much brings him out in toto.  There will still be pockets of cluelessness, but for the most part, this is a one-time deal for someone of Cooper’s stature.

The Entertainment Weekly story that got this story moving makes the point that it’s possible for even celebrities today to come out without its being a big deal, and Cooper’s example contradicts that (in the short term, since it was kind of newsish) but reaffirms the larger point, having such a short shelf-life.  Writing this post all of two days after Andrew Sullivan broke the story already feels like I’m stretching it out.

But that’s where the political aspect of sexual orientation comes in.  For me, when it comes to sexual orientation and politics, I was born this way.  It has taken me a long time to accept that some people – a lot of people – are not born political, or at least don’t take to politics naturally.  I see a need for lesbians and gay men to take political action, but as people who are more activist than me can tell you, it’s always been an uphill battle.

Cooper reports on political stories, but as a journalist he should not be an activist.  As a gay man, that puts him in a difficult spot.

A lot of politically active lesbians and gay men resent celebrities who are privately lesbian or gay, but have not opened the public door.  We have an enormous public relations job to do, and need all the help we can get.  That is one of the things that animated the movement to out politicians and celebrities – the idea that they had an obligation to use their public face to help us all gain equality.  The worst of the worst were the ones who worked against legal equality, but the desire for even neutral or supportive public figures to come out – or be dragged out – came from the mathematical problem of being a minority in the first place.  We start out with numbers that are staggeringly against us in a democracy, and then have the additional problem of members of our group who won’t even admit they belong.

Cooper seems to have struggled with that.  He mentions “the unintended outcomes” of maintaining his privacy, and says he may have given the impression that he is trying to hide something that makes him uncomfortable, ashamed or afraid.  His coming out was intended to – and does — clarify any misimpressions.

But those misimpressions are, and always have been, a perfectly natural consequence of silence.  If about 95% of the population is heterosexual, and someone doesn’t positively identify as homosexual, is it unreasonable for people to assume that individual is straight?  The open discussion of homosexuality over the last quarter century or so changes the bet somewhat, since silence now looks more telling, when it isn’t downright implausible.  Yet many people still cling to the fig leaf of privacy as if it were without consequence.

In this impressive compilation of Cooper in the field, one quote stood out: “Journalists don’t like to become part of the story, but unfortunately they have been made part of the story. . . . “  That, I am afraid, is true of sexual orientation as well.  Our inequality is embedded in the status quo that recognizes only heterosexual relationships, and if we say or do nothing, we are part of a story that tolerates and accepts our second-class status.  We cannot get out of that story, or create a more appropriate status quo unless we act, unless we speak, unless we stand up as lesbians and gay men.

The false neutrality of silence is clear in this story about Jitters and Bliss Coffee.  The company claims to be neutral when it comes to marriage.  They say they don’t have a public position on the matter, and “respect the views of all their customers.”  To demonstrate that neutrality, they joined up with the National Organization for Marriage to offer NOM members a non-Starbuck’s coffee option, since Starbuck’s has taken a position supporting marriage equality.

That is the neutrality of the status quo, being nakedly manipulated to preserve itself.  Our silence, their silence, anyone’s silence is a vote for NOM, is a vote for the bias and prejudice that are woven into the fabric of current law.

In this politicized environment, privacy equals silence, and silence equals — well, not death anymore, but certainly some spiritual damage.  That was the unholy balance that Cooper upset.  Neutrality is a primary virtue of the journalistic profession, but when “neutrality” means “the status quo,” and if the status quo is, itself, biased, then neutrality is not neutral.  Anderson Cooper’s coming out helps expose that truth.

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Forward with the Liberty Revolution

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Happy Independence Day, a time to celebrate liberty and freedom (from government injustice and tyranny).

Next year, the U.S. Supreme Court is expected to hear and rule on one aspect of the odious, anti-gay Defense of Marriage Act—the provision that forbids the federal government from recognizing same-sex marriages and legal partnerships that are valid under state law. I’m hopeful this will topple, with libertarian-leaning Justice Kennedy joining the court’s liberals. I’m less convinced that Chief Justice Roberts will do the right thing, despite (or maybe because of) his support for government overreach in casting the deciding vote to uphold the Democrats’ liberty curtailing (and small business strangling, jobs crushing) health care “reform.”

Over at the Huffington Post, James Peron takes issue with Brendan O’Neill, former editor of Living Marxism, who argues that gay marriage is “a tool of the elite” used to disparage the working classes, to whom we should all look for correct political guidance. O’Neill writes:

gay marriage has become so central to modern political debate in America and Britain, despite there being almost no societal drive or urge behind it—because it lends itself brilliantly to expressions of a very elitist sensibility.

Counters Peron, “In the years that I’ve followed assaults on LGBT people, the attackers were almost universally from the class Marxists told me were my allies. Sorry, but I’m not going to get gay bashed for anyone’s revolution.” (Hat tip: Rick Sincere)

Finally, Deroy Murdock forwarded a link to his defense of Ronald Reagan, a fighter against totalitarian tyranny who has been a favorite target of the gay left’s wrath.

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LGBTTIQQ?

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There may actually be a valid point in trans activist Ashley Love’s Washington Blade commentary, that point being “The medical condition transsexualism is neither equivalent nor subservient to gay, lesbian or bisexual sexual orientations….” But it’s pretty much lost in all the politically correct leftwing blather about:

This complicated matter of conflation, colonization and censorship of transsexual issues … In theory, the coalition known as LGBTTIQQ is different communities aligning themselves to accomplish a common goal. But what happens when that coalition’s top priority ranks the needs of a particular, more privileged group over the more discriminated against groups? An uprising is what happens. The “Transsexual Spring,” the widespread and growing resistance against misrepresentation, calls for major reform in education concerning our birth challenge.

Which all end ups calling for a boycott of GLAAD for insufficient deference to transsexual sensitivities.

Interestingly, as another commentary in the same Blade issue, by Dana Beyer, points out, two months ago a landmark EEOC decision expanded the definition of “sex discrimination” under Title VII of the Civil Rights Act to include transgender and gender non-conforming individuals. As a result, the proposed Employee Non-Discrimination Act (ENDA), Beyer argues:

“is essential for the gender-conforming gay community, who are not yet protected under Title VII. But while it may be a political necessity, it is not a legal necessity to protect transgender Americans, who are covered as described above.”

But how would that fit into the narrative of gays colonizing and censoring transsexuals?

More. From the comments, “Andy” writes: “Funny how the trans activists who demand there by no ENDA without trans inclusion did NOT insist there be no EEOC ruling expanding Title VII to include transgendered people without also including gays and lesbians. Looks like solidarity is a one-way street…”

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Super Chief

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Ari Ezra Waldman has an informative analysis of the Supreme Court’s health care decision at Towleroad, with his thoughts about how it might throw some light on what the court would – or should – do if it accepts one of the several pending gay marriage cases, including a challenge to DOMA that is now at the head of the list.

But by framing his comments in the addicting polarity of the political left and right, I think he misses the more important constitutional thinking that animates the health care case, and particularly the role of Chief Justice John Roberts.

From the political perspective, the bottom line of the case is that the left won the policy while the right won the law.  Democrats get the health care reforms they fought very hard for, but as Waldman notes, the most conservative Republicans got limits on two of Congress’s most expansive powers – powers that have had few limits up until this decision: the authority to pass laws under the Commerce Clause, and a limit on how far the Spending Power goes before it coerces individual states.  Neither is much of a constraint, given existing Supreme Court rulings, but the opinion does draw lines that many people thought might be nonexistent.

But Chief Justice Roberts confounded the politics.  This most political of all cases is not fitting into the proper political boxes.  And in his introduction to the opinion, Roberts does his best, not only with rhetoric, but with his bottom line, to steer the court through the political shoals:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” [citation] Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

The difference between policy and constitutional law are famously hard to define, and frequently get lost entirely in political discussions.  The Chief Justice wants his court to keep a close focus on the apolitical constitution, and particularly the limits it places on legislative authority.  Congress violated two very important limits in this case, and the court called them on their transgressions.

But the court must be as respectful of the constitution’s structural framework as possible, and that means upholding another branch’s decisions if there is any constitutional authority to do so.  While there were political problems for Congress if they said the penalty for failure to buy health insurance is a tax, that is an entirely fair characterization of what they did, and they do have the power to levy taxes. Just because Congress didn’t rely on that clear power – for obvious political reasons – doesn’t mean that, absent any other constitutional authority, the court cannot uphold their action based on this obvious but politically risky power.  As the Chief implied, it’s not the court’s job to protect people from their politicians, or politicians from the people.

While that might seem to be a problem for the DOMA cases, I think it works the other way.  Waldman focuses on conventional equal protection analysis, which holds that while the court defers to Congress on economic legislation, it should not do so when politically unpopular groups are disadvantaged by legislation.  That is a fair argument that dates back to 1938, and the most famous footnote in judicial history.

But the DOMA cases are the flip side of the health care case.  The health care decision is based on the powers Congress has been granted, but DOMA is about the limits the constitution places on what can be passed, even with constitutional authority.

The Equal Protection Clause is one of the “restraints on federal power that the constitution carefully constructed,” which Roberts and the court are bound to respect.  Lesbians and gay men have slowly been convincing the country, and the courts, that there are political reasons for elected officials to violate it and disadvantage them under the law.

It is easy enough for the court to hold elected officials responsible to the voters when they try to avoid facing up to a political reality like raising taxes.  But it will obviously be harder for the court to put itself in the public’s crosshairs.  But when it comes to the Bill of Rights, that is where the constitution places the court, for good or ill.  Sometimes the constitution puts the elected branches on the political hotseat, and sometimes it puts the court there.

That is why it is fair to hold the Chief Justice to the apt quotation from his great predecessor, Chief Justice John Marshall.  “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”  When a same-sex marriage case does make it to the highest court, Roberts’ hardest decision will be whether he believes the court that bears his name is stable enough to apply the same apolitical view of constitutional interpretation to itself that he has applied to Congress.

The health care opinion is a remarkably stabilizing decision.  The Chief Justice managed both the politics and the law well.  I think it is a hopeful sign.

 

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