Tag: Marriage Equality

Dale Carpenter marks today’s big marriage equality news:

By a 2-1 vote, with Judge Jeffrey Sutton writing the opinion, the Sixth Circuit has upheld state prohibitions on same-sex marriages in the states of Ohio, Kentucky, Michigan, and Tennessee. Given that four other circuits have come out the other way, and that same-sex marriages are proceeding in 32 states, this is the case that produces the circuit split likely to be resolved by the Supreme Court. If petitions for certiorari are filed soon, as I expect they would be, we could still be on track for argument this Term and decision by the end of June 2015.

Lyle Denniston explains that the “challengers in the cases in the four states of the Sixth Circuit now have two legal options”:

First, they can ask the full Sixth Circuit bench (the en banc court) to reconsider their cases, and if the court does that, then the panel decision released Thursday would be wiped out and the en banc court would start fresh.   The loser at that level could then seek Supreme Court review.

Second, the challengers can now move directly to the Supreme Court; they do not have any legal obligation to seek further review in the Sixth Circuit Court.  If they take that path, it would be up to the Justices to decide for or against review, and it would take the votes of only four of the nine Justices to agree to hear the case.

One of the key arguments in the ruling:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Mark Joseph Stern pounces on this passage:

Sutton, a George W. Bush appointee, had described these concerns during oral argument last August, and they clearly guided his vote here. Predictably, Sutton also harps upon the brief portion of United States v. Windsor that dealt with states’ rights—while largely overlooking its concern with the dignity of gay people. In Windsor, the court held that a federal gay marriage ban “degrade[s],” “demean[s],” and “disparage[s]” gay people. Yet Sutton is unconcerned that gay marriage bans might “demean” gay people; rather, he frets that overturning such a ban would be “demeaning to the democratic process.”

Howard Wasserman further unpacks Sutton’s ruling:

Say this: Sutton hit every possible argument and issue surrounding marriage equality (although he soft-pedaled his discussion of the “marriage is for men and the women they accidentally knock-up” argument). So the opinion presents a good vehicle for thorough consideration (and reversal).

A reader quotes me:

I still favor maximal religious liberty – even for a public accommodation like this one because requiring individuals to perform a marriage ceremony against their beliefs is just something we don’t do in a liberal society.

This business had two parts, based on the descriptions you provided.  The first part was in the performance of marriages by the owners, and I agree that the owners should not be forced to perform a marriage contrary to their beliefs.  But it sounds like their second business was in renting the space like you’d rent a ballroom at a hotel, with someone else performing the marriage. If they continue to rent the space to others, I don’t see why they should be exempt from anti-discrimination laws in who they rent to.

Another expands on that point:

I think the big legal issue here isn’t whether we should force ministers to perform gay weddings (I don’t think we should), but whether a for-profit business can use entirely pretextual changes to circumvent regulations.  The ADF is picking a situation engineered to elicit a favorable response to the question – gay marriage, local ordinance – but the implications are massive.  This is a shot strait at expanding corporate ability to exploit the Religious Freedom Restoration Act far beyond its intended purpose.  In its Hobby Lobby ruling, the Supreme Court made the point that the courts are not in the job of measuring the religious sincerity of litigants.  This case tests that proposition.  Do we want a world where any for-profit business can escape regulations it finds burdensome by filing a few documents with the Secretary of State and changing the mission statement on its website?  How long till a cottage industry of Corporate Religion Consultants starts advising every closely-held company on whether being Muslim or Mormon creates a better regulatory environment?

Another brings up the racial comparison:

As a country, we have been down this road before.

For example, many Christian bigots (including clergy) played a large role in sustaining the laws against interracial marriage, and fighting against the repeal of such laws.  Their racist views often were genuinely held religious beliefs, as is some of the bigotry directed against homosexuals today.  But we got it right back then.  No matter how racist a minister may be, whether religiously inspired or otherwise – he knows he can’t open a private “whites-only” wedding hall business.  The civic morality of that is clear, and homosexuals deserve no less.  And it seems like one day homosexuals will reach full civil equality too.

I know Libertarians, Tea Partiers and, probably, you, hate the analogy between racism in the public square to anti-homosexual prejudice in the public square.  I can’t help you there.  Like some in the 1950s, etc., you just got to work that shit out yourself.

Another has an interesting idea:

I’m curious how this would play out if business owners were allowed to discriminate, but only under the condition that they post a large “NO GAYS” sign on their front door. Then let the market decide. These business owners would be turning away a larger and larger portion of their potential business as same-sex marriage becomes more accepted in the general population.

For example, in North Carolina, it is legal to open-carry handguns (and concealed-carry once you take a class and pay for the permit). However, private businesses are allowed to refuse entry of persons with guns by simply posting a “NO GUNS” sign on their front door. Gun owners and those sympathetic to their cause have responded by refusing to do business at these locations. There’s even a smartphone app that can tell you what businesses are gun friendly.

Another adds:

Perhaps if we’re going to give maximum religious liberty to ministers when performing marriages, we also need to break the clergy monopoly on performing them. In Idaho, for example, one needs to be a current or retired judge, a current or former governor or lieutenant governor (because I’m sure they’re always free to do weddings), a tribal official, or a “priest or minister of the gospel of any denomination”. Judges work in courthouses, so unless you’re getting married at City Hall with a handful of witnesses, any formal wedding with friends and family is going to be done by a minister. Sure there are a bunch of mail-order seminaries for just this type of thing, but why can’t we let notaries or pretty much any other adult do this? Why no civil marriage officiants without a pretense of religion? Most other states aren’t much different, not even California.

Over at Patheos is one couple’s account of trying to get a nonreligious marriage:

The most disheartening part of our search was when we turned to the local mayors. In our area mayors perform many wedding ceremonies and seemed like a nice secular option. The mayors we contacted were uncomfortable performing a non-religious ceremony. The pre-planned ceremonies that they typically used all included religion. We finally found a mayor who was willing to work with us, albeit uncomfortably, but he bailed on us 3 days before the ceremony!

In a display of real compassion my mothers pastor saved the day. He agreed to let my friend perform the ceremony an afterwords to do a secular pronouncement and sign our marriage certificate. He did read 1 Corinthians 13:1-7; but this particular verse doesn’t mention god or faith so we felt it was pretty fair.

Todd Starnes contends it’s a real threat:

Two Christian ministers who own an Idaho wedding chapel were told they had to either perform same-sex weddings or face jail time and up to a $1,000 fine, according to a lawsuit filed Friday in federal court. Alliance Defending Freedom is representing Donald and Evelyn Knapp, ordained ministers who own The Hitching Post Wedding Chapel in Coeur d’Alene. “Right now they are at risk of being prosecuted,” their ADF attorney, Jeremy Tedesco, told me. “The threat of enforcement is more than just credible.”

According to the lawsuit, the wedding chapel is registered with the state as a “religious corporation” limited to performing “one-man-one-woman marriages as defined by the Holy Bible.” But the chapel is also registered as a for-profit business – not as a church or place of worship – and city officials said that means the owners must comply with a local nondiscrimination ordinance.

Robert Tracinski is left breathless:

Heretics will be found out and forced to recant. No one ever expects the Secular Inquisition.

Dreher also freaks out. But Walter Olson cautions:

I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.

James Peron’s understanding of the facts:

What is at issue is that the Hitching Post has been a business, open to the public, with no religious requirements for almost a century, and for most of the time ceremonies were conducted by justices of the peace, until the state abolished that office. The Knapps purchased the business in 1989 and continued to run it as a business, never as a religious institution. They performed non-religious ceremonies and happily allowed ministers of other faiths to perform services whether they were employees or not.

Whether or not it should be the case, anti-discrimination laws–which the ADF loves when it protects fundamentalists–cover private businesses, including this one.

Zack Ford looks at how the business has changed recently:

[T]he Hitching Post is a for-profit business, but with help from ADF, the Knapps have been gearing up for this challenge for some time by redefining their business in more religious terms. In fact, Hitching Post completely reincorporated with an entirely new business certificate just last month, which was authorized by Michael S. Oswald, an ADF attorney. Along with the new business was a new Operating Agreement, dated October 6, 2014, which enshrines all of the religious values offered in the complaint as part of the business. They similarly added a new Employee Policy and Customer Agreement stipulating that the Hitching Post will only perform unions “between one biological male and one biological female.” …

The city’s ordinance does provide an exemption for “religious corporations,” but the Hitching Post is not run by a church. ADF’s complaint does not claim that it is such a corporation, but argues that because the exemption is “broad” and exists for churches and church-run corporations, “the City has no legitimate basis for refusing to extend a religious exemption to the Knapps who are Christian ministers engaged in a religious function.” Nevertheless, the Knapps are still running a for-profit business that is providing a service (weddings) to one group of people and not to others that discriminates on the basis of sexual orientation in conflict with the ordinance.

Jeremy Hooper catches The Hitching Post changing their website:

Now that this business needs to make a case for “religious persecution,” they are pretending like they didn’t operate in the way that they totally used to operate. They are pretending like civil ceremonies and ceremonies outside of their own deeply held faith were never on the table so that they can make it seem like they have always been convicted in and committed to one specific kind of religious wedding. They have up and changed the rules that they themselves had laid out (i.e. no church, no faith, no problem) so that they can now make the case that they and their far-right spinmeisters are itching to make (i.e. only church, always church; we’re the victims).

One of several screenshots from Hooper:

Stephen Miller is uninterested in such details:

LGBT activists of a progressive bent are making much of the fact that the Hitching Post changed its services following the legalization of same-sex marriage in Idaho. To my way of thinking, it makes no difference. People should be free to marry, including same-sex couples, and the government should not be forcing businesses owners, whether they be ministers or not, to perform services for same-sex weddings.

Eugene Volokh argues that the ministers have the law on their side:

Friday, the Knapps moved for a temporary restraining order, arguing that applying the anti-discrimination ordinance to them would be unconstitutional and would also violate Idaho’s Religious Freedom Restoration Act. I think that has to be right: compelling them to speak words in ceremonies that they think are immoral is an unconstitutional speech compulsion. Given that the Free Speech Clause bars the government from requiring public school students to say the pledge of allegiance, or even from requiring drivers to display a slogan on their license plates (Wooley v. Maynard [1977]), the government can’t require ministers – or other private citizens – to speak the words in a ceremony, on pain of either having to close their business or face fines and jail time. (If the minister is required to conduct a ceremony that contains religious language, that would violate the Establishment Clause as well.)

Burt Likko feels that we “really shouldn’t compel the Knapps to perform a ceremony that is contrary to their religion, even if it is in the context of a public accommodation”:

The level of intimacy involved in actually presiding over that ceremony is very high (as I know from having presided over weddings myself). I’m comfortable with a result that tells a same-sex couple, sorry, you can’t make this particular someone do this very thing, preside over a wedding ceremony, especially not if there are reasonable alternatives readily at hand, as I presume there are in a resort location like Coeur D’Alene.

My problem is that I don’t know where the line gets drawn. … The idea of, “If you’re open to the public, you’re open to the public so you have to serve the public” is a rule that I can get behind morally and intellectually, because a coherent rule can be made out of it. The idea of “If you have a personal religious objection to doing something you don’t have to do it” has moral appeal but I cannot conceive of how a non-arbitrary rule about what things are or aren’t included in a rule resulting from that concept. Maybe the rule just has to be arbitrary — but if that’s the case, then why not compel the Knapps to perform the wedding? Or, why not allow anyone to get away from any rule of any kind on the basis of claiming a religious objection?

Lawyers like it when there are coherent, understandable rules. Which is the principal reason why I don’t like the Knapps’ lawsuit — it makes the rules much blurrier, much less easy to understand.

I agree, and this case looks like a deliberate provocation. It’s relevant, I think, that the Knapps are perfectly willing to perform marriages for non-Christian faiths – which casts some doubt on the sincere religious belief argument. But in cases like these, I still favor maximal religious liberty – even for a public accommodation like this one because requiring individuals to perform a marriage ceremony against their beliefs is just something we don’t do in a liberal society. And look at the context: Idaho now has marriage equality. That’s huge – and our core goal must be to reassure those who disagree with us, that we’re seeking merely civil equality, and nothing else. These people were looking for a fight. Far preferable not to give them one.

A reader provides it this time:

Maybe I missed it, but how have you not posted on gay marriages happening in North Carolina?  I guess it’s a sign of how radically things have shifted that Jesse Helms’ state is now performing gay marriages and the Dish doesn’t even post on it : )

The Getty caption for the above photo reads:

Lynda Johnson, center, cries as she watches her daughter Kandyce Johnson, left, marry Jana Downs outside the Mecklenburg County and Courts Office building on Monday, Oct. 13, 2014 in Charlotte, N.C. Monday was the first day that gay couples could marry in Mecklenburg County after a judge’s ruling. By Jeff Siner/Charlotte Observer/MCT via Getty Images.

Another reader reflects at length:

I had never had a strong opinion one way or another on the issue of marriage equality until I moved to North Carolina.

I grew up in Michigan and had a vague sense that a constitutional marriage amendment was wrong, and when it came up for a vote in 2004 I voted against it. My primary reason was the sense than a friend of mine who happened to be gay deserved to marry anyone she wanted just as much as I did. At the time, however, I couldn’t understand how anyone could find civil unions to be an unreasonable compromise. While opposed to enshrining discrimination into a constitution I still couldn’t appreciate the significance, let alone the necessity, of marriage equality.

As time went by this vague sense of wrongness became more and more fixed. As more of my friends felt comfortable being who they were and sharing their committed relationships publicly I began to see how wrong asking them to settle for a civil union would be. They responded to their loves exactly as I responded to mine. The benefits I received from marriage at that time had nothing to do with procreation. I started to see through the flimsy arguments made in favor of the status quo.

When Thom Tillis and others came to power in North Carolina and started making noises about adding an amendment to our state’s constitution in 2012, I finally began to understand I needed to use my voice. For the first time I had something to say about marriage equality and felt like it was time to say something to people who often vehemently disagreed with me.

I don’t share any of this because I feel like I’ve done anything. I share this because of what you and so many other people did. By sharing your voice on the Dish every day, by posting so many supporting and dissenting opinions, you challenged my level of empathy. You challenged me to see the United States of America as being capable of more than it was and at the same time not quite as perfect as I wanted it to be. I didn’t like what I found at first. In the end you taught me a lot about this issue but really you taught me a lot about myself. We’ve never met. We probably never will. But I owe you and the Dish a great deal.

Today [Friday], my state’s horrific decision to enshrine discrimination into its constitution was struck down. For the first day ever I lived in a state where all people who love each other can benefit equally from joining in marriage.

It doesn’t affect me, directly. But at the same time, it does. The days where you can personally see a nation becoming a “more perfect union” are rare throughout your life. But this day is one of those times. I wish you could be here. Those of us who spoke out and tried to change minds in 2012 came up short. But every day seeing men and women be who they are, seeing them fight through centuries of prejudice and bigotry to say this time things will be different … it’s hard to describe what I feel today watching people enjoy this opportunity they never should have been denied.

YouGov maps public opinion on marriage equality state-by-state:

After this week’s SCOTUS news, Dale Carpenter takes note that “gay couples will be able to wed for the first time on an ongoing basis, and have their marriages officially recognized, in politically red states.” He uses Oklahoma as an example:

Fifty-three percent of Oklahomans are evangelical Christians, 16% are mainline Protestants, and 13% are Catholics. Oklahoma is the 11th most church-going state, although it’s still behind new gay-marriage jurisdictions like Utah (5th), North Carolina (tied for 7th), and South Carolina (tied for 1st). A recent poll showed that two-thirds of Oklahomans strongly oppose (58%) or somewhat oppose (8%) gay marriage. The state’s gay-marriage ban passed with 76% of the vote ten years ago, which suggests that change is coming very slowly in some parts of the country.

Among others, Family Research Council President Tony Perkins predicts a watershed moment of resistance ahead, followed by an erosion of support for same-sex marriage itself …

Dale doesn’t buy it – and neither do I. Many opponents of marriage equality have responded with civility:

The Church of Jesus Christ of Latter-day Saints, which six years ago played an important role in supporting California’s voter-approved ban on same-sex marriage known as Proposition 8, said that the new legal landscape in Utah did not affect its belief that “only a marriage between a man and a woman is acceptable to God.” “Nevertheless, respectful coexistence is possible with those with differing values,” the church said in a statement. “As far as the civil law is concerned, the courts have spoken.”

Nonetheless, the arrival of marriage equality in deeply red states is a new thing, and will for a while revive some of the culture war polarization of the 2000s. Already, you have Mike Huckabee going off the deep end in response to the court’s inactivism:

It is shocking that many elected officials, attorneys and judges think that a court ruling is the ‘final word,’. It most certainly is not. The courts are one branch of government, and equal to the other two, but not superior to either and certainly not to both. Even if the other two branches agree with the ruling, the people’s representatives have to pass enabling legislation to authorize same sex marriage, and the President (or Governor in the case of the state) has to sign it. Otherwise, it remains the court’s opinion. It is NOT the ‘law of the land’ as is often heralded.

Er, yes it is. But the impulse to become George Wallace didn’t come from nowhere. Ted Cruz knows this, which is why he may well ride the winning issue of 2004 in the GOP primaries. I think what we have to emphasize in this social transition is support for religious liberty, toleration of each other, and a focus on the actual reality that will now unfold: the simple fact that a tiny minority is now granted equality in a core human right long since denied them, and that, so far as everyone else is concerned, virtually nothing will change.

In response to paranoia, reason; in the face of hatred, calm; at the prospect of victory, magnanimity; and in the moment of our liberation, joy.

Waldman outlines “one scenario by which what today seems like an inevitable forward movement for marriage equality could be undone”:

It involves a Republican winning the White House in 2016 and a liberal justice retiring, to be replaced by a conservative. This isn’t some remote possibility.

We have no idea what the election of 2016 will be like, and while as a liberal you probably think that the current crop of Republican contenders are a bunch of bozos, people thought that about any number of people who ended up winning the White House (see Bush, George W.). As of now, Ruth Bader Ginsburg is 81, Stephen Breyer is 76, Sonia Sotomayor is 60, and Elena Kagan is 54. Any one of them could retire for any number of reasons. And once President Rand Paul appoints Ted Cruz to take that retiree’s place, things look very different.

Ilya Somin says that “while this scenario is possible, I don’t think it is all that likely”:

Even if the GOP does win the presidency in 2016 (which is far from a sure thing), Ginsburg and Breyer would likely try to stay on the Court long enough to decide the gay marriage issue. It could very well be decided even before the 2016 election happens. Finally, a close 5-4 decision upholding laws banning gay marriage may not last for long. If public and elite sentiment continues to turn against such laws, the ruling would likely suffer the same fate as Bowers v. Hardwick (1986), which upheld anti-sodomy laws, but was widely reviled and got overruled in 2003. In this case, the tide of opinion is moving faster, and a reversal could happen sooner than that.