IGF CultureWatch

Steve Miller, Jon Rauch and Dale Carpenter all have solid takes on last week’s Prop. 8 ruling, Perry v. Brown, and all make essentially the same point: The court-ordered path to same-sex marriage runs directly through politics.  Despite what the most starry-eyed activists imagine, no single court decision should recognize nationwide same-sex marriage, at least not in the immediate future — which these days means about a decade.

Like legislatures, courts can move incrementally, which is the primary virtue in Perry.  There is a general rule that appellate courts should decide cases on the narrowest reasoning necessary to resolve the case before them.  While the trial judge swung for the fences, the appellate court found a narrower rationale to decide the case that limits its effect to California.

Limiting the decision is not just a satisfactory result, it is an excellent one as a political matter.  The political climate in California has changed a lot since the spasm of Prop. 8.  Even the feistiest of the Prop. 8 supporters were pretty tepid this time around.  There were no Prop. 8 supporters at the court on the morning of the decision, and the newsies had a tough time even tracking any of them down for quotes.  There has been a lot more work done in the Black and Latino communities in California on same-sex marriage, and Prop. 8’s proponents are struggling, both financially and in their ability to muster public support.  The Mormon church has backed off its anti-marriage tone and is holding the purse strings a bit more tightly on this issue, which would leave the Catholic church, now back to the fight against birth control, on the hook.  I think a California only decision would be well absorbed by the politics out here.

But California isn’t the only state that gets the benefit.  Court decisions may have narrow effects, but the opinions can persuade other courts, and even politicians.  Same-sex marriage will be coming up this year in various contexts: Washington, Maine, New Jersey, North Carolina, Illinois, Maryland and others look like they will be on the 2012 front lines.  Each iteration of this debate, even in the places where we lose, leaves a few more of our opponents winded and adds a lot more supporters to our side.

Those political debates happen in the same culture judges and lawyers live in, and give attorneys and the courts time to think about the constitutional issues in different and more nuanced ways.

That brings me back to Dale Carpenter, who offers an original spin on the notion of what counts as a rational basis for a law that is purely symbolic, as Prop. 8 was.  His piece is well worth reading, and moves the discussion forward in a sound but unexpected way.

Every enhancement to the debate changes the politics a little, and that helps the courts see more ways to resolve issues that are less disruptive than grand pronouncements and overarching rules.

We will get to equality, eventually.  But we won’t get there in a straight line, or all at once.  Every resolution brings us back to politics, one way or the other.

Younger attendees at the recently concluded Conservative Political Action Conference (CPAC) overwhelmingly thought the event’s organizers were wrong to bar GOProud, the conservative gay group that participated last year—triggering a boycott (since lifted after GOProud’s exclusion) by the Heritage Foundation and other anti-gay social-right groups, reports Stephen Richer at Forbes.com.

And so the fight continues among those of us who see the leftwing bureaucratic-welfare state as an economic dead end and the rightwing reactionary traditional-values-and-moralism state as a sociocultural dead end. Both represent an ongoing threat to a dynamic, innovative society founded on individual liberty and voluntary (rather than coercive) community.

Roger Simon explains why a Santorum nomination would be a GOP disaster — the Republican social right may be fine with overt homophobia, but the country isn’t any longer:

[M]ost people these days have homosexuals among their friends, family, or work colleagues and don’t appreciate even the whiff of bigotry. It’s become a big no-no. Santorum does not have a good track record in that regard. He is the only politician I know of who merits his own Wikipedia entry on the subject: “Santorum controversy regarding homosexuality.” Some of the quotations at that site from the former senator are not pretty. …
In most areas — economics, foreign policy, health care, etc. — I agree more or less with Rick Santorum. … I am certain, however, a Santorum nomination will be fraught with allegations of homophobia that may very well be fatal to his chances and to the Republican Party. Romney and Gingrich, for various reasons, some of them obvious, will not be able to say much about this during the nominating process. But you can sure as Hell bet the Democrats will if Santorum succeeds.

The Wall Street Journal’s James Taranto has an interesting analysis of the California appellate ruling striking down Prop. 8’s ban on same-sex marriage in that state.

The appellate ruling is stayed pending appeal to either a larger 9th Circuit panel or directly to the U.S. Supreme Court. In all likelihood, either the Supreme Court won’t hear the anti-gay appeal (which would restore marriage equality in the Golden State), or would hear it and uphold the 9th Circuit ruling in California (given that the appellate ruling is expressively tailored to track Justice Kennedy’s ruling in Romer), but not extend marriage equality throughout the nation. Or the High Court could rule against marriage equality and restore California’s ban.

The fact that the ruling is highly unlikely to result in a Supreme Court declaration of marriage equality throughout the nation is not a bad thing, given that an anti-gay marriage constitutional amendment is still a possibility. I’d rather see the Supreme Court first strike down the Defense of Marriage Act, which would result in federal recognition of same-sex marriages in states where such marriages are legal. Then, in just a few more years, the nation will be ready for a ruling striking down anti-gay marriage laws and state amendments, and the backlash will be manageable.

Added. Jon Rauch shares his views in New York’s Daily News, Gay marriage ruling in California is politically shrewd. He explains “Why the 9th Circuit’s decision was so modest — and so clever.”

More. From Politico: “The White House brushed aside questions Tuesday about Obama’s view on the Prop. 8 decision, while also refusing to shed light on the state of Obama’s thinking on the broader issue.”

The president isn’t likely to spend any political capital going out a limb. Why should he, when the left-liberal gay establishment has already pledged its undying fealty (cough, HRC, cough). But it’s worth noting that this profile in noncourage comes after Obama took unpopular positions in favor of killing the jobs producing Keystone pipeline, which would have helped provide energy independence but was hated by Robert Redford and the left-environmentalist crowd, and after his administration interpreted Obamacare as requiring Catholic-affiliated institutions to buy and provide their employees with abortion-inducing drugs, an assault on Constitutional rights that delighted NARAL and the feminist left. But on marriage equality, Obama is still “evolving.”

Most of my gay friends, including libertarian-leaning ones, have no problem with the Obama Administration’s decision to require Catholic-affiliated employers, such as hospitals and charities, to cover contraception in their health plans. The policy has caused a row, and Obama seems to be looking for a way to back off.

He should, imho. I’m a fan of religious-liberty exceptions even though I’m an atheist who thinks the church’s position on contraception is absurd and harmful—and even though most American Catholics agree with me, not their church. (I’m told, in fact, that many Catholic-affiliated employers quietly provide contraceptive coverage right now, without the church’s making an issue of it.)

And I’m a fan of religious exceptions not despite being gay but because of it.

My gay friends say, “Look, we can’t go around giving exemptions to anyone who objects to some law on religious grounds. If we did, what would happen to antidiscrimination laws protecting gays, among lots of other things?” Yes, up to a point. But where’s that point? These same gay friends tend to favor a default assumption that any religious institution that receives any federal money, or even a tax break, should have to follow every jot and tittle of every federal law.

I accept, as I think all religious-liberty advocates do, that saying “It’s my religion” can’t be a magic wand exempting you from law. But that’s a straw man. I’m guessing we can all agree that the First Amendment gives religious-affiliated institutions some autonomy (quite a lot, actually, if you read the text: “make NO law”), yet in practice today we find ourselves arguing over whether it gives them any meaningful autonomy. Roll over, James Madison.

I think the starting point for discussion should be, “What’s the most—not the least—amount of leeway we can give to religious institutions without undermining important social or governmental ends?” First, because it’s what Madison and the founders intended, and they were smarter than we are. Second, because it’s good social policy to avoid unnecessary conflict. Third, because erring on the side of diversity is a partial brake on the natural but dangerous tendency toward absolutism in the exercise of power.

Years ago, in a Harper’s article, I made the case for pluralism over purism. It’s still the right answer. Society has a positive interest in the preservation of dissent and heterodoxy. People who are so certain they’re right that they’d stamp out alternative practices and beliefs might want to have a second think. Especially if they’re gay.

Oh, those evil corporations. When they’re not oppressing the 99%, they’re … advancing legal equality for gay people. Oh, nevermind.

At the New York Times, columnist Frank Bruni writes that several large corporations, including Starbucks, Microsoft, and Amazon, have expressed public support for state initiatives to legalize same-sex marriage. Bruni observes:

“More so than politicians, corporations play the long game, trying to engender loyalty for decades to come, and they’re famously fixated on consumers in their 20s and 30s. They see support for same-sex marriage as a winner, something that will help with employee recruitment as well.”

Along the same lines, JCPenney has hired Ellen DeGeneres as its advertising spokesperson, hoping to project a more hip image to consumers. That’s social change!

More. On his Fox News show, Bill O’Reilly defends JCPenney’s hiring of DeGeneres.

Alas, David and I are never going to agree on the matter of forcing Catholic insitutions to provide contraceptive services to their employees, but I will respond to David, below, that I don’t consider Notre Dame University or Holy Cross Hospital (for instance) to be secular businesses – they are Church affiliated and view themselves as fulfilling a religious mission in the world (same for various Catholic charities).

Defending “contraception” is pretty easy – even if the issue is a government dictate that Catholic institutions buy condoms and IUDs for their employees. David avoids the uglier issue of abortion-inducing drugs. I would, too, if I were defending his position.

What next, forcing Jewish hospitals to serve their employees ham? Because we think ham is good for you and the kosher prohibition strikes us as superstition (and after all, we’re liberals and we know best)?

As for David’s contention “Insurance is a product, and people buy it.” Many employers self-insure – creating a set of benefits for their workforce with an insurance provider. Only very small businesses these days tend to buy insurance off the shelf for their workers. And it’s the employer who almost always still pays most (and sometimes all) of the premium.

Stephen Miller makes a good enough point, as far as it goes.  But it doesn’t go very far.

He’s one of the last people I’d expect to use squishy liberal rhetoric, but there’s just no kinder way to describe that “free.”  Only Pelosi-philes really think that insurance benefits are free just because you don’t pay for them at the point of service.  Insurance is a product, and people buy it.  The question is what and how much you’re paying for.

And that gets me to the main point.  Steve is willing to accept the church’s position that any corporate structure they choose to devise is religion if they say so.

The government not only has no business interfering with the exercise of religion, I think that’s one of the most consequential and revolutionary aspects of our constitution.  And that fully includes religious discrimination against lesbians and gay men.

But is the government required to be a sap about it?  Like all other bureaucratic organizations, churches have been known to abuse power and privilege — and laws.  And that is nowhere more true than when it comes to rules about sex.  Catholics are free to accept their church leadership’s hypocrisy and cluelessness about sexual matters.  But when the church selectively wishes to exempt itself from some laws (about contraception, say) while following others (about tax advantages) in its business operations in the private — not religious — sector, then I think it’s fair to question their lawfulness, and even their seriousness.

Their non-Catholic employees need health insurance as much as anyone else does.  And those insurance policies are government regulated, whether any of us around here like it or not.  Within the limits of its authority over actual believers, the church is free to be as extravagant in its hypocrisy as it wishes.  But when it operates a business that is not limited to believers (and doesn’t even pretend to be), something different is at stake — the rule of law.  This is a case where the Catholic hierarchy is simply using its power over its own believers (which they freely ignore) to make life more complicated for non-believers who work for them.  And that is not any matter of conscience, it is a matter of naked power.

If any significant number of believing Catholics actually followed the church’s rules against contraception, this would be a somewhat harder case, I suppose.  But it would still come down to the fact that the church has chosen to establish a secular corporation in the private sector to provide an inarguably valuable public good.  Having chosen to do so, it is not free to pick and choose the laws that apply to it based on some flexible corporate notion of “conscience.”  If churches have the power to make even non-believers subject to their rules, in ways that are entirely convenient to the church, then we have recreated the problem of religious establishment under an infinitely expandable version of religious exercise.

That cannot be right.  It certainly isn’t what any of the founders would have imagined.   This is not just the religious exemption that Steve has in mind.  Church rules are appropriate for believers of that religion.  But there is and should be no constitutional right for religions to bully nonbelievers.  That principle is at the heart of this nation’s DNA, and it looks like the bishops want us to live through that battle again.

I must respectfully disagree with David, below. In my view of things, using the blunt power of the state to force Catholic universities and hospitals to buy and provide their employees with free contraceptives, including morning-after abortion-inducing drugs, makes a mockery of religious liberty. And that’s regardless of the fact that most Catholics use and approval of birth control (many of whom may find contraceptives acceptable but don’t extend that view to the morning-after pill).

These institutions are Catholic, not secular, by their charters and in their running. And the church, rightly or wrongly, considers contraception and abortion to be sins. If the state can forced religious institutions to violate the tenets of their faith, then what can’t it do?

The road to the total state may be pleasing to those of the leftist persuasion (at least as long as they’re in charge), but it’s the antithesis of what America should stand for. A religious exemption is not too much to expect of a government that respects religious liberty and freedom of conscience.

Whose rights, exactly, is the Catholic Church asserting in challenging the Obama administration on contraception?  It certainly isn’t the rights of Catholic women, and it’s hard to see who else’s rights the bishops are invoking — except their own.

The church is up in arms that the administration is requiring insurance plans to include contraception coverage.  The rule has a conscience clause that protects the free exercise of religious organizations, but the church complains there isn’t a similar exemption for organizations associated with religions whose employees do not need to be religious adherents.  The U.S. Conference of Catholic Bishops is apoplectic, threatening to use every means at its disposal to stop what they argue is a trashing of their beliefs.

The Catholic Church has long been at odds with its own members on same-sex marriage, where one poll showed 71% of Catholics believe civil same-sex marriage should be allowed.  But that is nothing compared to the complete divide between church hierarchy and its members when it comes to contraception.  Ninety-eight percent of Catholic women defy the church’s ban on “artificial” contraception, which is within the margin of error of complete disobedience.

And that’s not Catholics who just hold a belief, as they do with same-sex marriage.  That is Catholics who actually use birth control.

So the bishops, who do not need contraception, are demanding a rule for their non-religious employees that even their religious employees don’t seem to particularly want.

I believe in the importance of conscience clauses, as does Jon Rauch.  I even think there is some value in using them to appease unreasonable fanatics if it will achieve some significant political goal.

Here, there is nothing at stake but the power of the bishops to demand in the civil world a rule they cannot enforce in their own domain.