For much of their decadeslong career, filmmaker brothers Joel and Ethan Coen specialized in what might be called cartoon noir: Pictures like Blood Simple, Raising Arizona, Fargo, and Burn After Reading mixed painterly riffs on shopworn Hollywood thriller tropes with a flat-out silly Merrie Melodies sensibility. These movies were murderous—and hilarious.
The duo also took regional specificity seriously, or at least with sharply observed comic depth: Their movies were set in highly exaggerated versions of specific places at specific times, with special attention paid to local customs and folkways, and the odd characters who bummed around America's amusing local scenes.
This sort of existential, hyperviolent-yet-comic movie was all the rage in the world of 1990s indie filmmaking—see 2 Days in the Valley—and most of the entrées in the genre offered weak imitations of the Coen brothers' style. The magic of the Coen brothers was the ability to elegantly balance these disparate components. Somehow they all cohered into something approaching a worldview, or at least some very good movies.
Drive-Away Dolls, director and co-writer Ethan Coen's first narrative feature without his brother, aims for a similar blend of tone and elements: It's a noir-ish lesbian road movie set on the American East Coast in the late 1990s. There's a quirky comic vibe, a tour of a particular slice of America, and, yes, a murder or three. It's all very familiar, and in moments it almost comes together. But despite these moments, there's a flatness and even a tiredness to the proceedings, as the film circles gags and scenarios the Coens have done better when working together.
The movie begins in Philadelphia at the tail end of 1999, when an anxious man in a bar (Pedro Pascal) carrying a distinctive-looking briefcase is murdered in an alley outside a bar. The scene, probably the best in the movie, is a classic Coen brothers–style setpiece. It's shot like an especially goofy homage to black-and-white noir, with heavy shadows and exaggerated facial expressions that practically pause to wink at the audience. It's so elaborate, so cartoonish, Tex Avery and Friz Freleng would be jealous.
The movie is less successful, however, when it jumps across the city to a pair of 20-something friends, Jamie and Marian (Margaret Qualley and Geraldine Viswanathan), who, after some introductory hijinks, end up on a road trip in a beat-up car headed down the East Coast. They've acquired the car via a "driveaway" service, in which their job is to deliver the car to Tallahassee, Florida. But it turns out the car has an unusual package in the back—the case from the opening scene—and there are powerful actors out to get it back.
Mostly this is an excuse for Jamie and Marian to take a shaggy, ironic tour of America's I-95 corridor during the tail end of the Clinton era, viewed through the lens of the era's unsettled gay culture: Jamie has just broken up with her girlfriend, and the two stop at lesbian bars along the way while heading for an inevitable romantic entanglement. Yet there's bigotry in the air, in the form of ubiquitous highway billboards for a family values senator played by Matt Damon. Meanwhile, the pair are chased by a couple of shady, intermittently violent characters, Arliss and Flint (Joey Slotnick and C.J. Wilson), overseen by their slick boss, Chief (Colman Domingo).
If this sounds like exactly the sort of loopy, scattered premise that the Coen brothers specialized in bringing together—well, yes, it does. But the lone Coen brother, who co-wrote the script with Tricia Cooke, struggles to put the pieces together: The discursive comic dialogue comes out flat and psuedo-quirky; the blend of comedy and violence feels like a tic; the constantly arguing bad guys play like second-rate ripoffs of the Steve Buscemi/Peter Stormare hitman duo from Fargo. There's a should-be-interesting attempt to view the gay culture of the late '90s East Coast as another distinctive American scene, a quirky little subculture to be explored and gently caricatured while acknowledging the right-wing, socially conservative politics of the era. But the movie's reflexively snarky posturing and penchant for ha-ha randomness means it struggles to land a point.
All too often, Drive-Away Dolls plays like a parody of a Coen brothers movie, an outdated homage by an especially talented copycat. It's a '90s throwback alright—not to the Coen brothers' best work, but to the procession of imitators who took their cues from the brothers. Drive away, drive away.
The post <i>Drive-Away Dolls</i> Is an Underwhelming Lesbian Noir appeared first on Reason.com.
]]>Japanese researchers announced last year that healthy fertile mice had been born using eggs created from male mice's tail-tip cells. The male-derived eggs were fertilized with regular sperm, thus producing pups with two fathers. Reproductive biologist Katsuhiko Hayashi, who led the work at Kyushu University, thinks that it will be technically possible to create a viable human egg from a male skin cell within a decade, according to The Guardian.
This achievement builds on earlier work in which another team of Japanese researchers created mouse eggs from tail-tip cells that resulted in the birth of healthy offspring in 2017. Another Japanese research group in 2021 using mouse stem cells created sperm that produced healthy fertile offspring.
Now researchers at private biotech companies like Conception Bio and Gameto are racing to see if they can develop this in vitro gametogenesis (IVG) technology as a way to safely enable post-menopausal women, couples experiencing infertility, and same-sex couples to bear biologically related children. Perhaps even solo reproduction in which single men could produce both sperm and eggs that combined would result in them having biological children in the future.
Bear in mind that only seven healthy mouse pups emerged from the 630 two-dad embryos transferred by the Japanese researchers. So significant technical hurdles must be addressed before IVG can be safely used to give birth to human babies. But some folks object to pursuing human procreation using IVG even after it becomes as safe as conventional and in vitro fertilization (IVF) births.
IVG is "a perversion of the sanctity of procreation as a fundamental aspect of human life," said Ben Hurlbut, a bioethicist at Arizona State University, in USA Today. He added, "It makes it into an industrial project that responds to and also inspires and cultivates the desires of their future customers." Marcy Darnovsky, head of the left-wing Center for Genetics and Society, warned on NPRthat IVG "could take us into a kind of Gattaca world." (She was referencing the 1997 sci-fi movie in which a eugenicist state is ruled by people born with genetically enhanced abilities.) Over at the conservative Federalist, Jordan Boyd asserts that by developing IVG, "the global fertility industry seeks to erase women from procreation one manufactured egg at a time."
The National Academy of Sciences addresses many of these ethical concerns in its In Vitro-Derived Human Gametes conference proceedings report released in October 2023. That report is summarizing the results of a conference on the topic convened by the NAS in April 2023.
Far from "erasing women," IVG will instead enable otherwise infertile women to produce as many eggs as they desire without having to endure treatments like ovarian stimulation in the hope of yielding sufficient eggs to succeed at conventional IVF.
Hurlbut is right that many people regard procreation as a "fundamental aspect of human life." This would be especially true for the 9 percent of men and 11 percent of women of reproductive age in the United States who have experienced fertility problems. Then there are people past conventional reproductive age and same-sex couples who would like to have biologically related children. Far from being an "industrial project," the rollout of safe IVG would fulfill the desires of these future customers to build their families.
What about Gattaca fears? The report does acknowledge that "combining IVG with polygenic risk screening could revolutionize the ability to select embryos." Polygenic risk screening (PRS) totes up the genetic variants that increase each embryo's chances of developing a particular disease or trait. This is similar to the already widely accepted practice of pre-implantation genetic diagnosis during IVF, in which parents test and select embryos in order to avoid deleterious heritable conditions. PRS would increase would-be parents' ability to select a preferred combination of traits from among many more embryos.
Rather than limit the use of PRS, Stanford University bioethicist Hank Greely suggested that, "in general, it is better to rely on parental choices to make decisions about how people wish to create families." This follows from the reasonable presumption that parents generally seek to provide the best lives for their potential progeny. The sorry history of eugenics laws in the U.S., where tens of thousands were forcibly sterilized during the 20th century, should make anyone cautious about government meddling in people's reproductive choices, including the use of safe IVG. As University of California, Irvine, law professor Michele Goodwin correctly noted, "Where law has intervened over time in matters of reproduction, it has served to undermine civil liberties and civil rights."
The post What if Men Could Produce Their Own Eggs? appeared first on Reason.com.
]]>"If the problem with campus speech codes is the selectivity with which universities penalize various forms of bigotry," wrote James Kirchick recently in The New York Times, "the solution is not to expand the university's power to punish expression. It's to abolish speech codes entirely."
Kirchick was writing about widespread outrage at the nuanced and hypocritical defense of speech offered by the presidents of Harvard, MIT, and the University of Pennsylvania at a congressional hearing about antisemitic and anti-Zionist campus reactions to the October 7, 2023 Hamas attacks on Israel.
Although Kirchick, the author of Secret City: The Hidden History of Gay Washington and The End of Europe: Dictators, Demagogues, and the Coming Dark Age, is an ardent defender of Israel, he is also a self-described free-speech absolutist who is disgusted by calls to restrict expression, whether on or off-campus.
Reason's Nick Gillespie spoke to Kirchick about how identity politics has overwhelmed the left's traditional defense of free speech, why so many younger journalists seem lukewarm at best to the First Amendment, and how to muster the courage to speak up for first principles in uncomfortable and hostile situations.
Articles mentioned:
"What Happens Where Free Speech Is Unprotected," by James Kirchick
"Calling Out An Antisemite," by James Kirchick
The post Free Speech Absolutism in Practice appeared first on Reason.com.
]]>The government may not compel someone to "create speech she does not believe," the Supreme Court ruled in June. In a 6–3 opinion authored by Justice Neil Gorsuch, the Court sided with a graphic designer, Lorie Smith, who wanted to expand into the wedding website business without being forced by Colorado law to create products celebrating same-sex marriages.
Back in 2021, the U.S. Court of Appeals for the 10th Circuit found that the planned websites would each constitute "an original, customized creation," designed by Smith with a goal of celebrating the couple's "unique love story." As such, it said, they "qualify as 'pure speech' protected by the First Amendment." The appeals court admitted that Smith was willing to provide her services to anyone as long as the substance of the project did not contradict her values. It also recognized that "Colorado's 'very purpose' in seeking to apply its law to Ms. Smith" was to stamp out dissenting ideas about marriage.
Despite all of that, the 10th Circuit held that the state government was within its authority to compel her to create such websites. Lamenting "an unfortunate tendency by some to defend First Amendment values only when they find the speaker's message sympathetic," Gorsuch et al. concluded otherwise.
The ruling in 303 Creative LLC v. Elenis is neither as narrow nor as broad as it (theoretically) could have been. The Court did not do away with public accommodations laws or allow businesses to discriminate against customers on the basis of characteristics such as skin color or national origin. But it did note that "public accommodations statutes can sweep too broadly when deployed to compel speech."
The high court also did not establish a right for any and every business owner to decline to provide services for same-sex weddings—only those whose services involve expressive activity. Whether a particular service (say, cake baking) is expressive will have to be litigated case by case.
At the same time, the majority decided Smith's case as a matter of free expression rather than religious liberty. It did not say the faith-based nature of Smith's beliefs about marriage entitled her to an exemption. Secular people with moral or factual objections to expressing a particular message presumably would receive the same protections as Christians or Muslims with religious objections—as they should.
"The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties," Gorsuch wrote in the majority opinion. "Abiding the Constitution's commitment to the freedom of speech means all of us will encounter ideas we consider….'misguided, or even hurtful'….But tolerance, not coercion, is our Nation's answer."
The post SCOTUS' Ruling in Gay Wedding Website Case Was a Defeat for Compelled Speech appeared first on Reason.com.
]]>The Southern Poverty Law Center (SPLC) just released a report claiming there are 1,225 hate and anti-government groups in America. These groups cause "fear and pain [in] Black, brown, and LGBTQ communities."
The SPLC lists such groups on its "hate map."
I once believed the Center. Well-meaning people still do. Apple once gave them $1 million.
But what donors don't know is that today, the SPLC smears good people, not just "haters."
Ayaan Hirsi Ali grew up Muslim in Somalia, but now she criticizes radical Islam, and sometimes (maybe this is what really bothers the SPLC) fraternizes with American conservatives. The Center put Hirsi Ali on its list.
The Center also smears the Family Research Council. I sometimes disagree with the Council. But they don't belong on a "hate map."
"When they don't agree with you politically, they're going to list you as a 'hater,'" says council Executive Vice President Jerry Boykin in my new video.
"You are a hater!" I tell him. "You hate gays."
"No, I don't hate gay people!" he responds. "I know gay people, and I've worked with gay people." The Council merely opposed gay marriage, an opinion they shared with Joe Biden, Barack Obama, and Bill and Hillary Clinton.
One man became so enraged by what the SPLC wrote, he went to the Council's headquarters to kill people. He shot a security guard. Fortunately, that wounded guard stopped him before he could shoot anyone else.
"He told the judge that he was there to kill as many of us as possible because we were a 'hate group,'" says Boykin.
The Center also smears the Ruth Institute, a Christian group that believes adoption agencies should first try to place children with straight couples.
I told Ruth Institute President Jennifer Morse that she must be "a hater."
"I like gay people!" she laughs. "I have no problem with gay people! That's not the issue…. There could be cases where the best person for a particular child would be their Uncle Harry and his boyfriend…. But we owe it to the children to give them the best we can, which generally is a married mother and father."
When the SPLC put the Institute on its hate map, its bank cut them off.
"You're an organization that promotes hate, violence…," wrote the bank. "Therefore we're not doing business with you."
The Ruth Institute and Family Research Council are still on the hate list.
"There's no appeal. I sure don't know how you get off," Morse complains.
I suspect the Center keeps its hate list long to bring in lots of money.
The Center pays some of its people more than $400,000 a year.
"More than my entire annual budget," Morse says. "So yeah, whatever they're doing—it pays."
It sure does. Harper's Magazine once reported that the Center was the richest civil rights group in America, one that spends most of its time and energy trying to raise more money.
They promised they'd stop fundraising once their endowment reached $55 million. But when they reached $55 million, they raised their goal to $100 million, saying $100 million would allow them to "cease costly fundraising."
But when they reached $100 million—they didn't cease. They collected $200 million. Then $400 million. Now they have $730 million.
Yet they still raise money.
"Much of which is in offshore accounts in the Caymans," says Boykin.
It's true. You can see it on their tax forms.
Today the SPLC even smears groups like Moms for Liberty and Moms for America, calling them anti-government extremists because they oppose sexually explicit content in schools, and seek school board seats to try to "stop…school districts [from] disregarding the opinions of parents."
Give me a break. The Center puts Moms for America on its "hate map," but not Antifa, the hate group that beats up people on the right.
Today the Southern Poverty Law Center is a hate group itself.
It's a left-wing, money-grabbing smear machine.
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post The Southern Poverty Law Center Makes Millions Trafficking Hate appeared first on Reason.com.
]]>This is the audio version of The Reason Livestream, which takes place every Thursday at 1 p.m. Eastern.
The guests this week were the podcaster and writer Coleman Hughes and the Cato Institute's Walter Olson. We talked about the recent high-profile Supreme Court cases that struck down the use of affirmative action in college admissions and ruled that a web designer in Colorado could not be forced to make a site for same-sex couples. Along with the legal issues involved, we discussed the immense cultural changes over the past 50 years related to racial, ethnic, and sexual identities.
Today's sponsor:
The post Coleman Hughes and Walter Olson: The Supreme Court Got Its Affirmative Action and Gay Website Cases Right appeared first on Reason.com.
]]>I read Justice Gorsuch's decision as broader in some respects than some may hope it is. It can't reasonably be cabined to all of its specific facts. The rationale for the vendor's message-based objection--religious or not, internally consistent or not, odious or not--does not matter. Op. at 24-25. Nor, in principle, are the speech protections the Court outlined limited to the creation of messages about same-sex marriage, marriage in general, or homosexuality.
On the other hand, the decision is also narrower in important ways than some progressives fear or some religious conservatives/libertarians may hope. I read 303 Creative to hold that a vendor cannot be compelled by the government:
(1) to create customized and expressive products (whether goods or services) that constitute the vendor's own expression (op. at 9, 16);
(2) where the vendor's objection is to the message contained in the product itself, not to the identity or status of the customer (op. at 18 n. 3, 20).
Consider each part of this:
I. The product must be customized and expressive
The Court repeatedly emphasized the unusual nature of the product Lorrie Smith, the website designer, proposed to sell: working closely with each individual customer to tailor specific and original messages by using Smith's own words and designs. Very few businesses take on such individualized commissions. She was not selling grilled cheese sandwiches at a lunch counter. Because of the requirements of customization and expressiveness, there will be no claim for the "vast array of businesses" selling "innumerable goods and services." Op. at 14.
First, almost all of the products we buy are neither customized nor expressive. From dairy to desks to dry cleaning, they are what the Court calls "ordinary commercial products."
Second, most customized products are not expressive. Think of the Ford F150, which has literally millions of option combinations. Or a Whopper, which was once promoted with the tagline, "Have it your way," indicating Burger King's willingness to tailor the burger to customers' taste preferences. There will be no claim for businesses selling these kinds of products.
Of course, this analysis does not answer all questions on the margins. The biggest of these will be: what sorts of customized products count as expressive? (Given Colorado's stipulations and the nature of the proposed services for wedding website design, product expressiveness wasn't a close question in 303 Creative. Op. at 21-22).
Line-drawing itself is not a new problem in free speech cases. In particular, the Court has developed doctrines to distinguish what is protected speech from what is unprotected conduct. That test combines elements that are both subjective (the speaker's own intention to communicate a message) and objective (the onlooker's perception whether the message has actually been communicated). Under this test, conduct is sometimes expressive but most often not. What's new after 303 Creative is that courts will now need to apply similar principles to commercial products.
There is a risk that some lower courts will be too aggressive in constitutionally exempting non-expressive commercial products from anti-discrimination rules. That result would not only be harmful to the dignitary and material interests of buyers, but it would ultimately discredit and undermine the genuine First Amendment interests of speech creators.
Eugene and I have offered some guidelines for distinguishing expressive from non-expressive products in prior briefs (see, e.g. our amicus brief here at pp. 5-14, explaining in Masterpiece Cakeshop why cake-making is not generally expressive). Some kinds of products will be clearly expressive, and others will be expressive on the margins, but the vast majority won't be expressive. There will be hard and intensely fact-bound judgments to make, based on what has historically counted as expressive (e.g. parades, books, paintings, and films) and based on the use of intrinsically or inherently expressive elements in the work (e.g., speaking, writing, and deploying symbols). The mere fact that the vendor subjectively regards the product as "art" that expresses some message would not be enough to trigger First Amendment protection. A limousine driver may think he turns corners with a distinctive flair, but his craft is neither historically nor intrinsically expressive. A Subway "sandwich artist" might be creating something worthwhile, but it's not speech.
Before Friday, the answer of some scholars and organizations like the ACLU was that none of this matters because when you're selling things in the public marketplace you basically have no First Amendment rights. Your choices were to quit your trade or come to heel. 303 Creative is clear that this answer will no longer suffice. It never really did. Op. at 16-17, 23.
Third, most expressive products are not customized. Think of a store that sells paintings or sheet music or books. Lots of protected expression goes into these products, but they're not created according to the demands or preferences of the particular customer. Since the artist or composer or writer has already created the product, the state has not compelled their creation. Refusing to sell these expressive products to protected classes of customers amounts to illegal status- or identity-based discrimination, which is not protected by the First Amendment. In general, if it's already on the shelf (physically or online) you have to sell it to all comers.
Here, too, there will be some cases at the margins of both customization and expression. As the dissent acknowledged, portrait photography is a generally expressive medium. Sotomayor dissent at 28. But even in this presumptively constitutionally protected context, some settings are more like an F150 assembly line than Annie Leibovitz's studio. I don't think a photographer offering to take standard school photos, corporate headshots, passport photos, or pictures with a mall Santa truly customizes the product or expresses something to a degree that warrants constitutional protection. Such a claim would trivialize free speech protection in the way that the Court in Rumsfeld v. FAIR thought the law schools' objections to sending emails about military-recruiter meeting times and locations did.
A wedding photographer, on the other hand, does offer highly customized and expressive services, working closely with each customer to depict the wedding in a certain way. (Cato, Eugene, and I first made this argument a decade ago in an amicus brief supporting certiorari in Elane Photograhy LLC v. Willock. The Court denied cert.)
Similarly, a website designer who offers a preset menu of plug-and-play options for customers to create their own wedding websites is offering a product customized mainly by the buyer, not the designer. It's the customer's speech, not the vendor's.
By contrast, a website designer like Smith who consults with customers to compose original written messages and creative graphics is herself customizing the product. The product is collaborative. And while it's certainly the couple's expression, it's also importantly the designer's.
II. The objection must be to the message in the product, not the customer's status
The vendor's objection also has to be to the message contained in the product, not to the status or identity of the customer. Businesses can't claim constitutional protection for a categorical rule that they won't sell commissioned products to gays, Jews, Blacks, or women. And of course they will not get a free-speech exemption from employing, insuring, housing, medically treating, or serving any particular class of people. 303 Creative reaffirms the cardinal rule that the First Amendment does not shield these acts of status-based discrimination.
There will be questions about whether the message-based objection is tantamount to a status-based one and therefore unprotected. Take this very case. As a matter of statute, Colorado regards discrimination based on opposition to same-sex marriage as a form of anti-gay discrimination in the same way that a ban of wearing yarmulkes is a form of discrimination against Jews. That seems justifiable in most regulatory and anti-discrimination contexts. For example, an employer who fires a worker because she's in a same-sex marriage has fired the worker based on her sexual orientation. State bans on same-sex marriage or denials of benefits to married same-sex couples similarly constitute sexual orientation discrimination.
But the federal government's argument that as a matter of constitutional law objections to same-sex marriages are necessarily status-based--equivalent to objections to gay people--won't fly for the compelled creation of expressive products. That's because, unlike in the regulatory context or where non-expressive discrimination occurs, the protected expression of another person is at stake "about a matter of major significance." Op. at 25. Massachusetts in Hurley and New Jersey in Dale were similarly free to treat privately organized parades and membership groups, respectively, as "public accommodations" for purposes of state law but those statutory applications could not prevail over First Amendment rights.
The New York Times print-edition headline on Saturday, "Website Designer Wins Right to Turn Away Gay People," was therefore misleading. (The online headline was more accurate.) The Court explicitly rejected the dissent's contention that it was permitting vendors to refuse service to classes of people. Here the vendor only refused to create a message.
Taken together, I think the 303 Creative requirements for a successful speech claim (message-based objections to creating customized and expressive products) also mean that the business' objection must be based on expression contained in the product itself. It will not suffice to say that the very fact of the sale alone sends a message the vendor does not want to send. For example, a baker could not refuse to sell a gay couple a premade wedding cake sitting in a display case on the grounds that the sale signals approval of their marriage.
It will also not suffice that the vendor objects simply to the purpose or occasion for which the customer intends to use a product. If a transgender person wants to buy pink and blue streamers to celebrate their gender transition, the business can't refuse to sell the streamers based solely on the purpose for the use. Unlike the wedding websites in 303 Creative (op. at 5), the ultimate use and configuration of the streamers in the customer's home would not likely be understood by others as the vendor's speech or even as a collaboration between the vendor and customer.
In other words, as I read the Court's opinion, it has not approved protection for unadorned complicity objections, i.e., claims that any connection to, or facilitation of, an objectionable act or message is constitutionally shielded from legal compulsion.
The post How to Read 303 Creative v. Elenis appeared first on Reason.com.
]]>My guest today is Brendan O'Neill of Spiked, whose new collection of essays, A Heretic's Manifesto: Essays on the Unsayable covers heated topics such as attacks on J.K. Rowling by trans activists; dismissals of populist moments that gave rise to Brexit, Donald Trump, and Emmanuel Macron; and the refusal by elites to own up to their mistakes related to COVID lockdowns. I blurbed this provocative and irresistibly readable book, writing that "Brendan O'Neill is the reincarnation of Christopher Hitchens, a devil's advocate who is willing to always state his case clearly, convincingly, and courageously."
Today's sponsor:
The post Brendan O'Neill: A Heretic's Manifesto appeared first on Reason.com.
]]>Congress in December passed the Respect for Marriage Act, granting formal federal recognition to same-sex and interracial marriages. President Joe Biden quickly signed the bill into law.
While both types of marriages were already protected under federal law, that protection was afforded by the Supreme Court, not Congress. In the wake of Dobbs v. Jackson Women's Health Organization, the 2022 case in which the Supreme Court overturned the federal abortion protection established by its 1973 decision in Roe v. Wade, supporters of gay marriage worried that the Court might also revisit that subject.
Hence the Respect for Marriage Act, which included compromises aimed at attracting enough Republican votes to avoid a filibuster in the Senate. The law requires the federal government to recognize same-sex marriages performed in states where they are legal. That ensures gay spouses will continue to enjoy the privileges, rights, and benefits federal law has long afforded straight spouses, such as the marital tax deduction, joint filing, and Social Security benefits.
Sen. Tom Cotton (R–Ark.) said he opposed the bill because it interfered with an issue that the Constitution leaves to the states. Yet many federally recognized privileges are contingent on state marriage licenses, and there is no sign that Congress is inclined to scale back those benefits.
The Respect for Marriage Act does not require states to legalize same-sex marriage. Many states still have bans on the books. If the Supreme Court ever decides to overturn Obergefell v. Hodges, the 2015 decision mandating legal recognition of gay marriages, those bans could take effect again.
The new law does require states to recognize same-sex marriages legally performed in other states. While that provision may seem contrary to federalist principles, states historically have recognized marriages performed in other states with different rules (regarding minimum ages or marriages of cousins, for example). Although the courts have not yet resolved the issue, such accommodation is arguably mandatory under the Constitution's requirement that "full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."
The Respect for Marriage Act says houses of worship, religious groups, and faith-based social agencies "shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage." It adds that "any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action."
The law does not address the issue of whether religious organizations can be required to recognize same-sex marriages in certain circumstances. Can a church-connected foster agency refuse to place children with same-sex couples? Does a religious school with a position against gay marriage have to employ teachers with same-sex spouses?
The law is silent on such questions. Republicans and Democrats are largely on opposite sides here, and attempting to resolve this dispute legislatively would have doomed the bill.
Many states have public accommodation laws that require wedding contractors to prepare wedding cakes, invitations, or floral arrangements for gay couples. The Respect for Marriage Act does not address that issue either, which likewise probably would have made it impossible to pass the bill.
Days after the Senate passed the Respect for Marriage Act, the Supreme Court heard arguments in 303 Creative LLC v. Elenis, which poses the question of whether a website designer with moral objections to same-sex marriage has a First Amendment right to refrain from producing websites for gay weddings. A ruling is expected in the spring.
The post Congress Formally Grants Federal Recognition to Gay Marriage appeared first on Reason.com.
]]>There was a time when a groomer was a predatory grown-up preparing to molest a kid. Then Christopher Rufo, the activist who did more than anyone else to inject the term into today's politics, redefined it as a "spectrum of behavior." Children, he tweeted in 2022, "can be groomed into a sexual identity, groomed into an ideological system, and, in some cases, yes, groomed for abuse." The rhetorical aim was clear: It was a way to raise the specter of the child molester without having to demonstrate that any specific person is a child molester.
That specter has long haunted our culture wars. Whenever a sexual minority's legal rights or social status seems to be increasing, someone is certain to raise the alarm that Pedo Power will surely be next. In 1994, as gay freedom was becoming a mainstream cause, the head of the right-leaning Rutherford Institute claimed that "the logical implication of American acceptance of homosexuality is the acceptance of pedophilia as simply another form of 'sexual orientation.'" In 2004, with gay marriage a central issue in the year's elections, the head of Liberty Counsel wrote that "Once the same-sex marriage barrier is broken, a wide range of sexual paraphilia rights are sure to follow, including, but not limited to, pedophilia." In 2015, right after the Supreme Court's Obergefell ruling struck down state bans on same-sex marriage, the prominent Texas Republican Allen West circulated an article about pedophile advocates under the header "That was FAST: Yesterday it was gay marriage; Now look who wants 'equal rights.'" (The article was actually several years old.) In 2022, with a new group in the culture-war crosshairs, The Federalist ran a feature headlined "Why Accepting Child Transgenderism Will Pave The Way For Accepting Pedophilia."
Each time someone tells this tale, it is less plausible than before. Nearly half a century ago, there actually were notable currents of radical opinion that wanted to normalize pederasty and abolish age-of-consent laws. The successes of the gay rights movement have not made such views more popular. If anything, they have become more radioactive. The North American Man/Boy Love Association (NAMBLA) no longer marches in pride parades, and gay papers no longer publish extended debates about whether such groups belong in the fold. Even the small handful of activists who do talk about destigmatizing pedophilia are much more likely to claim that this will make it easier for pedophiles to get psychiatric help than to suggest they're doing nothing wrong. And the rise of trans rights has not changed that at all. (That's why Rufo has to fall back on phrases like "groomed into a sexual identity"—they let him conflate two very different phenomena.) In fact, the increasingly dominant view on the left today is to oppose any large age differences in romantic or sexual relationships, even when both parties are of legal age.
That isn't simply a matter of ideological drift in the LGBT movement. There are larger sociological reasons why many people in the West were more open to tolerating genuine groomers in the immediate aftermath of the 1960s, and there are larger sociological reasons why the taboo wound up getting stronger instead. To understand that, we need to revisit that moment in the 1970s and early '80s when it briefly looked like pedo lib might have a future.
On April 5, 1978, Gore Vidal stood before a judge and suggested that statutory rape laws should not exist.
The novelist was not on trial. He was delivering a speech in a crowded Boston church, and the chief justice of the state's Superior Court happened to be in the audience. The judge later insisted that he had merely been there to see a famous writer speak and that he didn't realize he'd come to a rally for a controversial cause.
Specifically, he'd come to a fundraiser to defend two dozen men charged with molesting kids in Revere, Massachusetts, a downmarket suburb that had already acquired a pretty grimy reputation before the local district attorney (D.A.) declared that a nationwide sex ring was headquartered there.
Grime seemed to be everywhere in Boston just then. First there was that alleged sex cabal in Revere, a story that eventually turned out to be somewhat overblown—the accused were not actually a "ring," and only one of them was eventually incarcerated—but for the moment had the state on edge. Then the D.A. set up an anonymous hotline for people to report suspected predators, a system that civil libertarians feared would be used to target anyone a caller thought might be gay. Then there was a series of stings at the Boston Public Library, where cops nabbed dozens of men for having sex in the first-floor men's room.
And then Chief Justice Robert Bonin showed up at that rally. The judge always insisted afterward he had no idea before the event, or even after it was underway, that it was an activist fundraiser. That may be true, though he stuck around far longer that evening than you'd expect from an official attuned to the demands of political survival. (He even asked Vidal afterward to sign his copy of Burr.) According to James Aloisi's 2012 book The Vidal Lecture, the knives had already been sharpened for Bonin, who had been enacting a court reorganization plan that many of the judicial old guard opposed. After the new scandal broke, he was forced to resign from the bench.
Looking back from 2023, his ouster isn't surprising: Even if he really didn't know what sort of event he had stumbled into, that's the sort of accident that could bring down any official, let alone one with powerful foes. What feels odder is Vidal—a bestselling author, a frequent TV commentator, a man who consorted with Kennedys—saying things like "When you think of it, should there be such a thing as statutory rape? That sounds to me like a contradiction." Even while acknowledging that some limits were appropriate ("I would say that puberty is a dividing line"), he questioned the premises of the law where those limits were enshrined.
Nor was Vidal alone. Allen Ginsberg, one of the most acclaimed writers of the day, came to Boston around the same time to read his poem "Howl." He inserted some new lines for the occasion, including one about men "busted for eye-contact in the Boston Public Library men's room when a handsome youthful policeman flashed his irish loins & winning smile." Ginsberg wasn't simply concerned about the civil liberties implications of the D.A.'s tactics: He also stopped by a local TV show and declared, "I had sex when I was 8 years old with a man in the back of my grandfather's candy store in Revere, and I turned out OK."
Vidal and Ginsberg were radical intellectuals; they took minority positions all the time. What feels truly alien today is that packed church. Let us take it for granted that not everyone in the audience that evening agreed with Vidal's views on statutory rape. No doubt there were people there who simply thought the defendants were innocent, or who feared the D.A. was gearing up to target the broader gay community, or who just wanted to see a celebrity speak. The fact remains that roughly 1,500 men and women were in the room with Vidal and Bonin that evening. Imagine that many Americans turning up at a fundraiser for a group of accused molesters today.
Such ideas were never universally accepted in gay and lesbian circles. Indeed, they were fiercely contested: For as long as NAMBLA was marching in pride parades, there were vigorous efforts to kick it out. When Anita Bryant and other anti-gay activists of the era cloaked their crusades in concern for kids' welfare—"a particularly deviant-minded teacher could sexually molest children," Bryant warned in her 1977 book The Anita Bryant Story—most rank-and-file gays reacted by distancing themselves from any teacher who saw his students as potential conquests.
Such ideas were not limited to gay and lesbian circles either. You wouldn't have guessed it from Bryant's rhetoric, but most molestation cases involve men and girls, not men and boys. So it should not be surprising that "intergenerational sex," to borrow a euphemism of the day, had its heterosexual advocates too.
For an example, open the December 1977 issue of Penthouse, a magazine devised almost exclusively by and for heterosexual males. Turn to page 117. There you'll find a story by Philip Nobile headlined "Incest: The Last Taboo" and subtitled "Previously suppressed material from the original Kinsey interviews tells us that incest is prevalent and often positive." Much of the article deals with sex between siblings or cousins, but it ventures into adult-child encounters as well—most infamously with a line Nobile attributed to the future men's-movement leader Warren Farrell. He was studying incest, Farrell allegedly said, because "millions of people who are now refraining from touching, holding, and genitally caressing their children, when that is really part of a caring loving expression, are repressing the sexuality of a lot of children and themselves. Maybe this needs repressing, and maybe it doesn't."
Farrell later claimed that he had actually spoken of parents caressing kids "generally," not "genitally." If so, that's one of the most unfortunate misquotes in magazine history. But what's notable for our purposes isn't whether Farrell said the line attributed to him. It's that Penthouse printed it as an unremarkable comment by a figure the magazine was presenting sympathetically.
One expects Hustler to go further than Penthouse, so it may not be surprising that in 1978 it published a story arguing that children should be able to "choose their sexual partners freely (including adult partners)" and illustrated the article with several photos of nude kids. Before you dismiss that as the fringy provocations of a porno mag, consider this: Both the article and several of the pictures were reprinted from Erwin J. Haeberle's The Sex Atlas, a mainstream textbook that had crossed over to ordinary bookstores and found commercial success there too.
That book was not an outlier. Ideas like these were circulating around the edges of respectable opinion; they weren't exactly popular, but they were far more common than they are now. One enormously popular bestseller—1975's The People's Almanac—included a symposium surveying various famous folks about their personal visions of utopia. The book's co-editor declared in his responses that sex education should "begin with practical experience in which older women teach young boys and older men teach young girls."
Articles like Haeberle's reflected a current of countercultural thinking that thrived throughout this period. Since young people's liberties were strictly limited—by schools, by parents, by police—there was a "children's liberation" movement that said kids should throw off their shackles and enjoy lives of full freedom. As was often the case in the 1960s and '70s, the catalog of shackles to be discarded sometimes included sexual repression.
Such ideas did not need to lead to NAMBLA-style conclusions. A.S. Neill's Summerhill, the 1960 book that helped inspire dozens of anti-authoritarian "free schools," has a long section devoted to young children's sexuality, each page of it drenched in the influence of the radical psychiatrist Wilhelm Reich. It is by turns absurdly utopian ("No man with a good sex life could possibly torture an animal, or torture a human, or support prisons") and surprisingly atavistic (Neill declares homosexuality unhealthy). But it never suggests that children and adults should have sex together; instead it focuses on allowing kids to masturbate ("from the earliest moment the child must be completely free to touch any and every part of his body") and to engage in sexual play with their peers ("a natural, healthy act that ought not to be frowned on"). For some readers, the argument stopped there. Others decided to drag it in a…different direction.
If gay activists were still more likely than their heterosexual counterparts to talk about changing age-of-consent laws, there were historically contingent reasons for that. For one thing, some jurisdictions had a higher age of consent for gay sex than for straight sex; many people who had no larger interest in changing the age of sexual majority still wanted to end that discrimination. For another, it wasn't extremely unusual for a gay man's personal story back then to include a part like this: When I was 15, my parents kicked me out for being homosexual, so I hitched a ride to Castro Street, found a more welcoming community—and had sex with some of them. Precisely because gay relationships are more accepted now, that sort of background is much rarer; queer kids are more likely to stay home and happily, openly date people their own age.
There was also a general social tendency to group together sexual practices deemed perverse. Differentiations that seem obvious today did not always come naturally to people in the past. The most striking example: Congress did not pass a law dedicated to stopping child pornography until 1978. That didn't mean you could walk into any drugstore in 1940 and buy kiddie porn. It meant such material was restricted, on the federal level at least, by the same laws that governed porn in general. After those broader rules were liberalized, lawmakers started drawing more distinctions.
So did the people whose sexuality had been stigmatized. In her 2020 book Unspeakable, the University of Victoria historian Rachel Hope Cleves examines the life of Norman Douglas, a once-beloved but now largely forgotten British novelist who kept a private journal describing his deflowerings of thousands of boys and girls. Douglas did not hide his proclivities during his lifetime, which ended in 1952. To the extent they were known, they were regarded with the same mixture of bourgeois disapproval and bohemian tolerance that an uncloseted gay artist might have received. Borrowing the radical anthropologist Gayle Rubin's metaphor of a "charmed circle" of socially acceptable sexuality, Cleves writes: "Identity categories that are distant from one another today—like loose women, lesbians, and pederasts—were more proximate when they were all outside the charmed circle. Pederasty was less taboo before the 1950s, in effect, because so many other behaviors were disreputable as well."
With time, a new logic for the circle established itself: More and more, Americans valued consensual relationships between people of roughly equal social status. A marriage between two 30-year-old women was increasingly acceptable; a marriage between a 40-something man and his 20-year-old secretary was increasingly not. The 1970s came in that moment—call it the Ambiguous Interval—after a wave of rebellions had challenged the old order but before the emerging new rules were clear. When the rebels demanded youth liberation, did that mean kids should be liberated from puritanical restrictions on their sexual behavior, or did it mean they should be liberated from adults who wanted to prey on them sexually? The answer, it turned out, was a bit of both: The country has grown more tolerant of teens having sex with each other—but if you're older, you need to keep your hands off.
If this move first to accept and then to reject the NAMBLA constituency stemmed from such larger social shifts, you might expect similar developments to take place in comparable countries at roughly the same time. And sure enough, the U.S. was not alone.
In 1977, a Toronto-based LGBT outlet called The Body Politic ran a story by Gerald Hannon called "Men Loving Boys Loving Men." Many articles over the years have walked a delicate line, aiming to humanize pedophiles without endorsing pedophilia. This was not such a story. Hannon blazed past that line, writing glowingly of "sexual, loving relationships with boys"; toward the end, he described two people, one age 12 and one fully grown, giggling naked in a sleeping bag while Hannon lay nearby, listening. After the article appeared, police raided the Body Politic offices and the paper's owners were charged with transmitting "indecent, immoral or scurrilous matter" through the mail.
They were eventually acquitted. They celebrated by publishing the article again.
By that point, events in Toronto looked like an only slightly distorted reflection of events in Boston. Just as the Revere case sparked fears among people who didn't approve of pederasty but were disturbed at the district attorney's tactics, the Ontario defendants drew support from people who had no love for Hannon's article but had no sympathy for censorship either. Just as the Boston-based Gay Community News ran fierce debates over pedophiles' place in the movement, so did The Body Politic. In both Boston and Toronto, some of the strongest opposition to erasing the age of consent came from the lesbian community—to the point where Elaine Noble, Massachusetts' (and America's) first openly lesbian state legislator, endorsed the D.A.'s anonymous tip line. But both the Boston editors and the Toronto editors also found some dissenting lesbians willing to take the other side of the debate. In Gay Community News, the contrarian article ran under the headline "On 'Woman/Girl Love'—Or, Lesbians Do 'Do It.'" The Body Politic's story was dubbed "'I was fifteen, she was forty-three….'"
Toronto is only about 550 miles from Boston, so perhaps it's unsurprising that similar events would unfold in both cities. So let's turn to the United Kingdom, where the biggest difference is that events played out slightly earlier: The British counterpart to NAMBLA, the Paedophile Information Exchange (PIE), was founded in 1974. Just as in the U.S., parts of the gay movement condemned it and parts were sympathetic. PIE was affiliated for a few years with the National Council for Civil Liberties, the British equivalent of the American Civil Liberties Union; during that period, the council urged "a change in the attitude which assumes that all cases of paedophilia result in lasting damage." There was much less room for such talk by the mid-'80s, and the council severed its ties with PIE.
The story in France has some parallels too, despite some notable differences rooted in the unusual history of that country's sex laws, a history that Scott Gunther of Wellesley College sketches in his 2009 book The Elastic Closet. Under the Ancien Régime, a Frenchman could face the death penalty for engaging in gay sex, but the revolutionary government decriminalized sodomy in 1791. After that, the only way a same-sex coupling could lead to an arrest was if it also violated a different statute, such as the laws against sex with a minor. When the pro-fascist Vichy government decided during World War II to crack down on homosexuality, it did so not by banning sodomy again but by tweaking how sex with a minor was defined: In 1942, France raised the age of consent for gay sex to 21, while the age of consent for heterosexual intercourse was fixed at 13. The latter was raised to 15 after the Vichy regime fell, but the basic setup stayed in place.
Since age-of-consent laws were at the core of how the French government regulated gay sex, they moved to the core of gay protest. (So did public indecency laws, especially after a 1960 statute doubled the penalty for public liaisons when the people involved were of the same gender.) Against that backdrop, a group of French intellectuals produced one of the most infamous documents of the 1970s: a 1977 petition, signed by luminaries ranging from the novelist Alain Robbe-Grillet to the philosopher Michel Foucault, that called on the government to not set any age of sexual majority at all.
The French lowered their age of gay consent to 18 in 1974, and in 1982 they equalized the age for gay and straight teens at 15. But they did not establish a crime of statutory rape until 2021. Sex with a minor, which carries a sentence of several months or years, is a separate crime in France from rape, which carries a much harsher penalty; before 2021, child molesters could not be convicted of rape unless prosecutors proved that they had used violence, coercion, threat, or surprise. Just a hop across the ocean from that crowded Boston church, Vidal's skylarking was already law.
Yet despite this radically different legal history, France's cultural history was not so different from the Anglosphere's. There as here, the age of consent for heterosexual intercourse used to be much lower. (Did you think there was something uniquely French about setting the age of sexual majority as low as 13? In 1885, most American states set their age of consent at 10.) There as here, there was a pre-'60s current of writing that presented pederasty as an idealized "Greek love." There as here, that mode of argument was replaced in the 1960s and '70s by arguments about youth liberation. And there as here, gays in the 1980s started doing more to distance themselves from sex with minors, and more broadly from forms of sexual expression that were unpalatable to mainstream society. They did this, Gunther notes, more through "a process of invisible, internalized control" than through the law; but they did it nonetheless. France may be distinctly French, but it still follows a broader Western pattern.
Other countries have their own local nuances and wrinkles. In West Germany, the hope to avoid a return to the Nazi past led many intellectuals to Wilhelm Reich's arguments blaming fascism on sexual repression. In his 1975 book Le Grand Bazar, the New Left leader Daniel Cohn-Bendit described his experiences working in a Reich-inspired German kindergarten; there, he wrote, sometimes "certain kids opened my fly and began to tickle me. I reacted differently according to circumstances, but their desire posed a problem to me. I asked them: 'Why don't you play together? Why have you chosen me, and not the other kids?' But if they insisted, I caressed them even so."
Cohn-Bendit later adopted a more respectable identity and became a Green member of the European Parliament. The Greens became more respectable too—elements of the party had adopted NAMBLAite positions well into the 1980s, but those days were behind it now. So there was a scandal when a journalist dredged up that old passage in 2001. Cohn-Bendit then claimed that he had made up the story and had put it in his book as a "pure provocation, designed to shock the bourgeoisie."
You can decide for yourself whether to believe that. Either way, it says something that the younger Cohn-Bendit felt that his not-so-bourgeois readers would accept it. Like that Penthouse reporter, he made assumptions about his audience that few modern writers would share.
In the unstable atmosphere of the Ambiguous Interval, when the rules seemed up for grabs, even the activists who objected to sex with minors could not always agree on where to draw the line between the behavior they accepted or rejected. I don't simply mean the division between people who objected only to sex with pre-adolescent children and those who extended their opposition further into the teen years. When Rubin devised that phrase "charmed circle," far more than pederasty was being debated in gay and feminist circles. (And, yes, in libertarian circles too. The Libertarian Party held its convention in Boston a few months after Vidal came to town, and the man it tapped to give a presentation on "Gay Liberation/Human Liberation" was future NAMBLA co-founder Tom Reeves.)
Consider a 1980 resolution adopted by the National Organization for Women. After affirming the group's support for lesbian rights, it declared that "other issues" had "been mistakenly correlated with Lesbian/Gay rights by some gay organizations and by opponents of Lesbian/Gay rights who seek to confuse the issue." The document went on to reject not just pederasty but pornography ("an issue of exploitation and violence"), sadomasochism ("an issue of violence"), and public sex ("an issue of violation of the privacy rights of non-participants"). It didn't make it into the resolution, but many feminists were suspicious of transsexuality too.
These battles sparked some solidarity among some members of the contested groups. I vividly remember stumbling onto an LGBT radio show in Houston one evening in the '80s when the callers were debating whether NAMBLA should march in the annual pride parade. One listener offered this argument for letting them participate: "They were there for us, so we should be there for them."
But that wasn't the argument that ultimately carried the day. In 1986, after organizers barred the group from the Los Angeles pride parade, Mattachine Society co-founder Harry Hay decided to march with a sign that said "NAMBLA WALKS WITH ME"; another marcher tore the sign up. In San Francisco in 1987, the Eureka Theatre Company—the institution that would later premiere Tony Kushner's play Angels in America—was positioned to march directly in front of NAMBLA. One bullhorn-toting Eurekan took the opportunity to periodically yell "We're not proud of you!" and "You're disgusting!" at the chicken-hawk contingent behind them. In New York, according to the Seattle Stranger, a sadomasochist group issued a press release condemning NAMBLA's "disgusting, illegal sex which brings shame to our community."
City by city, the group was kicked out of pride events; eventually it was essentially exiled from the movement. The point of no return was probably the day Sen. Jesse Helms (R–N.C.) discovered that NAMBLA was affiliated with the International Lesbian and Gay Association (ILGA), which had recently received consultative status at the United Nations. He promptly introduced, and the Senate unanimously endorsed, an amendment to deny the U.N. any funds until the president could certify that none of its branches or affiliates "grants any official status, accreditation, or recognition to any organization which promotes, condones, or seeks the legalization of pedophilia."
The U.N. promptly expelled the ILGA, which in turn expelled NAMBLA and similar groups. The ILGA had already encouraged them to exit in 1990, by passing a resolution condemning pedophilia, but actively kicking them out required an 80 percent vote to expel. Helms' bill ensured they had the votes.
There was no turning back after that. Even figures who once had vocally supported NAMBLA became more cautious. In 1984, Rubin had predicted that "people will be embarrassed by their collaboration with this persecution [of pederasts], but it will be too late to do much good for those men who have spent their lives in prison." By 2010 she had tempered her tone, declaring that she had been referring "primarily" to men who had sex with teens, not with pre-adolescents, and that she does "not have all the answers" to "the many complex questions about children and sex." Rubin's frequent collaborator, Patrick Califia, walked back his position almost entirely. In 1980 he had written in The Advocate that age-of-consent laws "are completely arbitrary and do not take into account the varying degrees of physical and emotional maturity possessed." In 2000, not long after he transitioned to a male identity, he announced that he had been "naive about the developmental issues that make sex between adults and prepubescent children unacceptable."
By the time Obergefell was decided in 2015, it was clear to anyone paying attention that trans rights were next in line. But most social conservatives were blindsided by the transgender movement, perhaps because they were focused instead on the allegedly onrushing pedo threat. With the recent explosion of warnings about "groomers," some of them have started treating trans lib as though it's pedo lib in disguise after all.
But of course it isn't. There is a world of difference between allowing kids to claim their own gender identity and allowing adults to proposition them. No doubt you can find some people who favor both, but the first does not imply the second.
The pedophile rights movement has been decimated, and there is no reason to expect that to change anytime soon. When people think they see signs of pedo lib on the horizon, they are more likely to be seeing the scattered remnants of the old pedophile movement. Or stories about child molesters who aren't actually organized into a movement. Or signs that Hollywood or Madison Avenue is sexualizing minors, which does happen but has been happening for ages, whether or not pedophiles are organizing.
Or perhaps they see people who talk about "destigmatizing" pedophilia and who insist on using the term "minor-attracted persons" instead. That last group might initially sound like a plausible sign that something is brewing, but a closer look shows something else. Their position is that we need to distinguish people who feel pedophilic urges from people who actually act on those urges, that pedophiles who want to resist those urges are less likely to ask for psychological help if there's a stigma attached, and that we therefore need a label for people who feel sexually attracted to kids but refrain from molesting anybody. In a 2014 New York Times op-ed, Margo Kaplan of Rutgers Law School took the argument even further, arguing that such people should be protected by the Americans with Disabilities Act (ADA) so they can come clean about their inclinations without worrying about losing their jobs.
For the record, I don't find those arguments convincing. They start with a real problem—people who want this sort of therapy are indeed often stymied—but adopting the phrase "minor-attracted persons" doesn't change that; it just comes across as a creepy euphemism. And ADA protection for pedophiles sounds like a bad joke. But these positions are obviously different from the idea that there's nothing wrong with adult-child sex in the first place. Conflating them with NAMBLA is like conflating a man who has implausible ideas about treating drug addiction with a man who thinks heroin is good for you.
Progressive opinion has not just turned against the idea of sex with minors; it has been extending its concept of who counts as a minor. Even as Rufo was stretching the definition of "grooming" in one direction, some left-leaning voices were using the word to describe manipulative or exploitative relationships between older men and young adults. Jezebel, for example, reported in early 2022 that three women had accused director Cary Joji Fukunaga of attempting to groom them. One of the women was 18 at the time he allegedly started to pursue her. The other two were 20.
On that topic, mainstream opinion isn't far from progressive opinion. CNN's Harry Enten recently examined U.S. Census data to see how many weddings each year have broken the old rule of thumb that men should only pair up with partners who are at least seven years older than half their age. The total had dropped sharply, from 28 percent in 1900 to just over 10 percent in 1980 to about 3 percent in 2021. (That's 3 percent for heterosexual unions. For gay couples, it was 15 percent—higher than the hets, but still substantially lower than the standard used to be.) But the more important change he found ran deeper. It was only in the last few decades, Enten discovered, that popular culture had started offering that rule as the largest acceptable discrepancy in a couple's ages. Originally, it had been offered as the ideal age gap.
To be clear: As best as historians can tell, 19th century American women typically married in their early 20s. At the turn of the 20th century, the average age gap between husbands and wives, for their first marriages at least, was just five years—more than now, but certainly not enormous. The shift here is in what is widely seen as acceptable, not what is typical.
Still, as late as 1969 about a third of America's weddings featured teenage brides (while just 14 percent had teenage grooms). The difference between then and now is huge. And that change, in turn, reflects an even larger social transformation.
In Stanley Kramer's 1967 message-movie Guess Who's Coming to Dinner, a white mom and dad confront their prejudices when they learn that their daughter's fiancé is black. When the film first appeared, many viewers complained that the black character was too flawless for the situation to be realistic. Kramer had an answer to those critics: He and his screenwriter had "deliberately made the situation perfect," he told the film critic Roger Ebert, because that sharpened his point: "If you take away all the other motives for not getting married, then you leave only one question. Will [the father] forbid the marriage because [the prospective husband is] a Negro? That is the only issue, and we deliberately removed all other obstacles to focus on it."
What does this have to do with our topic? Just this: That prospective husband is two decades older than his bride-to-be. That isn't the only way the pairing violates the modern marital ideal, in which husband and wife are roughly equally matched companions: He is also much smarter and more accomplished than she is, and they have not known each other long. They're both good-looking, but other than that it's hard to imagine what they might have in common. Few Americans today would object to the pairing on racial grounds, but several other objections are obvious.
Or at least they're obvious now. In the '60s, they were apparently invisible to both Kramer and his critics.
Ever since the Enlightenment, the feminist historian Stephanie Coontz has written, Western marriage has been shifting away from being a hierarchical "prefabricated institution" that was ultimately about "forging political alliances, sealing business deals, and expanding the family labor force." As late as the 1960s, "American legal codes assigned differing marital rights and obligations by gender," but since then both law and culture have kept changing, making marriage "an individually negotiated relationship between equals." From the opposite side of the political spectrum, the traditionalist writer Bryce Christensen offers a complementary take: "Once defined by religious doctrine, moral tradition, and home-centered commitments to child rearing and gender complementarity in productive labor, marriage has become a deracinated and highly individualistic and egalitarian institution."
Coontz was writing in 2012, Christensen in 2004. Both were reacting to the debate over same-sex unions, arguing that radical changes in heterosexual marriage had paved the way for gay weddings rather than the other way around. The more people accepted the idea that marriage should be a partnership between loving equals, to be negotiated and enjoyed on their own terms, the harder it became to argue against extending the institution to gay and lesbian couples. A decade after Coontz's article appeared, I'd add that something similar has happened with the trans movement. As the gender system became more flexible—as we became freer to choose among social roles that once had been rigidly "male" or "female"—it became more thinkable to extend that fluidity to gender identity itself. Changes in conventional heterosexual lifestyles made gay people and then trans people more widely accepted.
Those changes did not make age gaps more widely accepted. If anything, they made them less popular—and not just when it comes to marriage. Think of the opprobrium Leonardo DiCaprio gets for habitually dating women in their early 20s. Or the moment last year when Laura Dern and Sam Neill expressed regret for the two-decade age gap between their characters in the 1993 movie Jurassic Park.
When the age of consent in most states was just 10, that was not because Americans were reading some 19th century Summerhill and encouraging kids to experiment sexually. As the political scientist Carolyn Cocca notes in her 2004 book Jailbait, such laws were "less about the ability or lack thereof to consent to such activity on the part of the female, and more about protecting white females and their premarital chastity—a commodity—as property." At the end of Unspeakable, Cleves concludes that Douglas' molestations reflected "a norm of unequal and exploitative sexual relations that empowered privileged men to do as they pleased, and left women, children, and the poor to make the best of it."
It's telling that today's controversies about adults taking a sexual interest in younger people are as likely to involve progressives looking askance at traditionalists as they are to involve trads looking askance at progs. Take 2017's special election to represent Alabama in the U.S. Senate, when three women accused Republican candidate Roy Moore of sexually assaulting them. Two of the trio said they were in their teens at the time, several more women said he had come on to them while they were teenagers, and one of Moore's former colleagues told CNN it had been "common knowledge that Roy dated high school girls." Moore denied the alleged assaults but conceded that he may have dated teens when he was in his thirties. ("I'm not going to dispute anything, but I don't remember anything like that," he told radio host Sean Hannity.)
Moore is an ultraconservative with a history of high-profile culture-war battles, so it's no surprise that progressives would attack him or that the right would rally to his side. (Not all of the right, of course. He managed to lose the Senate race, something no other Republican nominee has done in Alabama since 1992.) But there was more at work here than mere partisanship. A Moore defender in The Federalist declared that it once "was not an uncommon occurrence" for older men to date teenagers, then argued that "this practice has a long history and is not without some merit if one wants to raise a large family." In such families, the writer continued, "the wife must start having kids when she is young. The husband needs to be well-established and able to support the family, in which case he will typically need to marry when older." This traditionalist argument elicited the sort of reaction among progressives that Vidal's ruminations on statutory rape prompted among conservatives.
In that Hannity interview, Moore commented that he didn't "remember ever dating any girl without the permission of her mother." It sounded like a throwback to the days when courtship was a transaction between parent and suitor. It was as alien to modern sensibilities as Hustler's story about children choosing sexual partners. Neither is likely to reenter the charmed circle anytime soon.
Could that change? Sure. One takeaway from this history, after all, should be that sexual mores can evolve radically. Maybe the social, economic, and technological trends that have shaped the modern marital ideal will be overwhelmed by new developments, sparking another transformation. The future is unwritten. As Cleves writes in Unspeakable, "The first decades of the twenty-first century will not be the final word."
But it's clear what trajectory we're on right now, and it does not lead to a land of groomers. If anything, it's taking us further away.
The post A Modern History of 'Groomer' Politics appeared first on Reason.com.
]]>The University of Idaho has agreed to pay $90,000 to settle a free-speech lawsuit brought by three members of the school's Christian Legal Society and the group's faculty adviser. The school issued a no-contact order against the four after a female student complained the students harassed her. The female student had asked the CLS students why they opposed gay marriage. They explained they believed the Bible supports only marriage between a man and a woman. One of them later left a note for the female student offering to discuss the matter further.
The post Brickbat: Speaking Freely appeared first on Reason.com.
]]>This afternoon, President Joe Biden formally signed H.R. 8404, the Respect for Marriage Act, into law.
In a White House ceremony on the South Lawn, Biden was joined by several hundred LGBT activists and supporters and preceded by speeches from Senate Majority Leader Chuck Schumer (D–N.Y.) and House Speaker (for a few more weeks) Nancy Pelosi (D–Calif.) and musical performances from the likes of Sam Smith and Cyndi Lauper. The president took note of the historic moment.
"Deciding whether to marry and who to marry is one of the most profound decisions a person can make," Biden said, repeating some of the same sentiments that garnered media attention back in 2012 when he broke from President Barack Obama as vice president in support of recognition. "Marriage is a simple proposition: Who do you love? And will you be loyal to the person you love? It should not be more complicated than that. Everybody should have the right to make that decision for themselves, without government interference."
The Respect for Marriage Act definitively writes into law federal legal recognition of same-sex and interracial marriages. They are the law of the land as it stands, but concerns that a future Supreme Court might undo recent precedents that mandate recognition led to the negotiated development of this act, which passed the House earlier in the year and the Senate in November.
In a nutshell, the Respect for Marriage Act declares that the federal government will recognize a marriage between two people that was performed in a state where that union is legal, regardless of the sex, race, ethnicity, or national origin of the participants. It does not require that states legally recognize same-sex marriage on their own. (Some states have bans that could potentially become active again should the Supreme Court's precedents be overturned). It does, however, require states to recognize legal marriage contracts from other states.
The Respect for Marriage Act also specifies that religious organizations, churches, temples, mosques, and the like cannot be forced to provide services or accommodations for the solemnization of any marriage. And it also promises that the bill does not require or authorize polygamous marriage.
What the bill does not do is address any of the current conflicts over whether private businesspeople like bakers or florists (among others) can be forced to serve same-sex couples despite any religious objections to same-sex marriage. And it doesn't address any conflicts over whether religious-based organizations could be required to serve or employ people who are in a same-sex marriage. It was a point of criticism of the bill from religious conservatives, but as I noted before, there currently is no political compromise tenable in that area that would be embraced by enough Republicans or Democrats to pass. Instead, a bill that affirms the poll-supported status quo was enough to draw in enough Republican support to avoid a Senate filibuster and pass.
And so, even if the Supreme Court revisits and decides to strike down its precedent in Obergefell v. Hodges (and to be clear, there's no pending case on the docket that would), same-sex marriage will still have federal recognition. And ultimately, this is the right way to do it. Lawmakers coming together and passing legislation supported by a majority of Americans is preferable to hoping for a group of Supreme Court justices to decide what the rules of marriage are and should be.
The post Biden Signs Respect for Marriage Act Into Law appeared first on Reason.com.
]]>Lorie Smith is a conservative Christian and a website designer who thinks she should be able to engage in her chosen occupation without compromising her moral beliefs. But that is illegal in Colorado, where Smith is forbidden to create websites for heterosexual weddings unless she is also willing to create websites for gay weddings.
The Colorado Anti-Discrimination Act (CADA) simultaneously censors Smith by stopping her from announcing the principles that guide her work and requires her to express a message that contradicts those principles. The question for the Supreme Court, which heard Smith's case on Monday, is whether those commands are consistent with her First Amendment right to freedom of speech.
Colorado and Smith agree that she is happy to serve any customer, regardless of sexual orientation, provided the work is consistent with biblical values as she understands them. In practice, both parties say, that means Smith "will decline any request to design, create, or promote content" that "contradicts biblical truth," "demeans or disparages others," "promotes sexual immorality," "supports the destruction of unborn children," "incites violence," or "promotes any conception of marriage other than marriage between one man and one woman."
Last year, the U.S. Court of Appeals for the 10th Circuit agreed with Smith that her custom website designs "are pure speech." It said Colorado's rules therefore amount to compelled speech as well as viewpoint-based speech restrictions, making them subject to "strict scrutiny."
That standard is very hard to satisfy. It requires that a challenged law be "narrowly tailored" to advance a "compelling" government interest, meaning that goal cannot be served through less restrictive means.
The 10th Circuit nevertheless concluded that CADA's application to Smith and her business, 303 Creative, passes constitutional muster because it is necessary to protect the "material interests" of "marginalized groups" in "accessing the commercial marketplace." That conclusion is puzzling.
As Smith's lawyers at the Alliance Defending Freedom note in their Supreme Court brief, "hundreds of other website-design companies operate in Denver alone." So even if Colorado allowed Smith to specialize in opposite-sex weddings, gay couples would have plenty of alternatives.
According to the 10th Circuit, that's not good enough. "For the same reason" that Smith's bespoke website designs qualify as speech, it said, they are "inherently not fungible."
While same-sex couples would have lots of other options if Smith were permitted to run her business the way she wants, the appeals court reasoned, they would not have access to her unique work. In that respect, it said, Creative 303 is "similar to a monopoly."
That "monopoly of one" theory, which dissenting Judge Timothy Tymkovich called "unprecedented," "threatens every artist's control over her own speech, replacing speaker autonomy with the government's message," Smith's lawyers argue. By "declaring that a unique and customized product is irreplaceable and that therefore a requirement to provide it in the commercial marketplace is narrowly tailored," First Amendment specialists Eugene Volokh and Dale Carpenter likewise warn in a Supreme Court brief filed by the Cato Institute, the 10th Circuit's analysis effectively eliminates "free-speech protection for providers of expressive products."
The implications are potentially sweeping. Under CADA, Tymkovich suggested, Colorado could force "an unwilling Muslim movie director to make a film with a Zionist message" or require "an atheist muralist to accept a commission celebrating Evangelical zeal." The state could "force Muslim filmmakers to promote Scientology or force lesbian artists to design church websites criticizing same-sex marriage," Smith's brief says.
Since some state and local laws prohibit commercial discrimination based on political activities or ideology, such legally mandated speech could go even further. "Under Colorado's theory," Smith's lawyer observed during oral argument on Monday, "jurisdictions could force a Democrat publicist to write a Republican's press release."
While such hypotheticals might seem fanciful, the underlying principle is the same. If the courts allow compelled speech in the name of protecting equal access to "places of public accommodation," supporters of those laws won't necessarily like the results.
© Copyright 2022 by Creators Syndicate Inc.
The post Colorado's Anti-Discrimination Law Forces Artists To Echo the State's Message appeared first on Reason.com.
]]>Whether designing a webpage for customers counts as speech and therefore whether a designer could be compelled by Colorado law to design wedding pages for same-sex couples took center stage before the Supreme Court this morning.
Creative 303 LLC vs. Elenis came before the Court this morning and brought with it a tangled thicket of competing Supreme Court precedents about when the government can compel businesses or institutions to pass along messages or ideas they object to. At the heart of this case, Lorie Smith, owner of Creative 303 LLC, wants to design web pages for weddings. But she has religious objections to same-sex marriage and doesn't want to design pages to celebrate gay couples. This puts her at odds with the Colorado Anti-Discrimination Act, and so she has gone to federal court to try to get a ruling in her favor.
In a debate surpassing two hours, the justices discussed whether Smith is actually engaged in "expressive speech" if she doesn't put her own messages on these webpages, the distinctions between rejecting a customer and rejecting a statement, and which Supreme Court precedents should influence this case's outcome.
Kristen Waggoner, Smith's attorney and a lawyer for Alliance Defending Freedom, wanted the Court to turn to Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, a 1995 case where the Supreme Court ruled that the organizers of Boston's St. Patrick's Day Parade could not be compelled to allow marchers bearing a banner for the gay organization into the parade, which would have forced them to convey a message of support parade organizers did not agree with.
Colorado was represented by Solicitor General Eric Olson and bolstered by Brian Fletcher, principal deputy solicitor general of the United States. The Justice Department agrees with Colorado that Smith does not have the option to simply turn away all same-sex couples. They asked the Court to use Rumsfeld v. Forum for Academic and Institutional Rights, Inc. as a guiding precedent. That 2006 decision held that colleges could be compelled to provide space for military recruiters despite any moral objections they may have.
Smith has not been accused of turning away anybody as yet. She has asked the Court to rule before she begins turning away same-sex clients as is within her First Amendment rights. So, the debate this morning revolved around several hypothetical situations, since neither side has any actual examples of Smith turning anybody away.
In a fashion similar to those who followed Masterpiece Cakeshop v. Colorado, the justices questioned the boundaries of what actually counted as speech or expression. Throughout the proceedings, Justice Elena Kagan mulled over the difference between a wedding site where a designer simply plugged in information provided to them and a site where the designer was actually expected to craft particular messages celebrating the marriage. She noted that the examples of sites Creative 303 included didn't appear to state any sort of celebratory messages but did wonder whether Smith could be compelled to add "God bless this union" onto a site against her religious convictions. While there seemed to be an agreement that she could not be compelled to do so, the justices struggled to find where the line between speech and discrimination was drawn. In Masterpiece, the Supreme Court punted that central question. Now, they're revisiting it.
Waggoner saw the line as pretty easy to determine: Smith's webpages and their content all count as Smith's speech. It's up to Smith to decide what she would and would not allow to be included on the webpages she was designing. Olson and Fletcher argued that Smith's rejection of same-sex marriages was essentially the equivalent of rejecting same-sex customers (Waggoner and Smith disagree) because it was a case where the conduct and the identity of the customer are "inextricably entwined."
The more conservative justice seemed inclined toward siding with Smith, concerned about future hypothetical cases where a freelance speechwriter could be forced to write speeches for political candidates or positions he or she found disagreeable. Could a freelance public relations professional be forced to write a release for the Church of Scientology?
Justice Amy Coney Barrett wondered if a site serving the gay community could be required to run heterosexual wedding announcements alongside same-sex ones. Olson responded that the site probably wouldn't hold itself out as a "public accommodation," but if it did, it would be required to run them. There was a fairly brief discussion of whether there were limits to what the government classifies a "public accommodation" that perhaps could have been fleshed out more. Colorado appears to have a very broad definition that includes nearly any good or service that is offered "to the public."
Justice Neil Gorsuch noted the amicus brief by the Cato Institute, joined by UCLA law professor Eugene Volokh (of The Volokh Conspiracy) and Southern Methodist University Dedman School of Law professor Dale Carpenter (also a contributor to The Volokh Conspiracy) in support of Smith. Though Volokh and Carpenter had taken Colorado's side against wedding cake baker Jack Phillips, they're supporting Smith in this case, arguing that "forcing her to create websites to which she objects is a speech compulsion." Gorsuch also incidentally described the anti-discrimination training that Phillips was ordered to undergo (before the Supreme Court ruled in his favor) as "re-education."
It is very difficult to predict based on today's debate what exactly the Supreme Court could decide. Because of the intersection of First Amendment protections and public accommodation discrimination protections, the questions were far-ranging and hit many areas. It seems likely that the ruling will be in favor of Creative 303, but it's also clear that the justices are looking for the right place to put a dividing line between protecting people from compelled speech and the government's interest in enforcing public accommodation laws. "How do you draw the line?" was a question raised in several contexts by multiple justices. We'll find out in the spring.
The post Supreme Court Debates Whether Web Designers Can Be Forced To Make Gay Wedding Pages appeared first on Reason.com.
]]>The Respect for Marriage Act passed the Senate Tuesday night by a vote of 61–36. Twelve Republican lawmakers crossed the aisle and voted with all the Democrats for the bill, which will enshrine federal recognition for same-sex and interracial marriages in states that have legalized it.
The Respect for Marriage Act is intended as a backstop should the Supreme Court ever decide to reconsider and overturn U.S. v. Windsor, which ruled that the federal government must recognize state-approved, same-sex marriages, and Obergefell v. Hodges, which ruled that all states and the federal government must legally recognize same-sex marriage. The Respect for Marriage Act repeals and replaces the Defense of Marriage Act, passed in 1996, which prevented the federal government from recognizing same-sex marriage.
There has been quite a bit of exaggeration about what the bill actually does in the run-up to Tuesday's vote, particularly by social conservatives who have a very long history of opposing same-sex marriage. The Heritage Foundation describes the bill as "radical" and, uh, tweeted out a frowny-face emoji in response to the vote. A reminder here that a majority of Americans, including Republicans, support legal recognition of gay marriage.
In a post at The Daily Signal, Roger Severino, Heritage Foundation's vice president of domestic policy, opined, "No American who believes in marriage as the union of one man and one woman should be persecuted by the state or radical activists for their sincerely held convictions."
The bill doesn't actually authorize any of that, but the Foundation is highlighting concerns that down the line, the IRS or federal government will use religious opposition to same-sex marriage to attack the tax-exempt status of religious organizations. Sen. Mike Lee (R–Utah) attempted to introduce an amendment that would strengthen religious freedom protections in the bill but was rejected.
Conservatives aren't the only ones whose representations of the Respect for Marriage Act aren't quite getting the big picture. Coverage of the Respect for Marriage Act in The New York Times, for example, downplays the respect for state powers in the bill—it does not require states to legalize gay marriage recognition. To be fair, here, conservatives like Sen. Tom Cotton (R–Ark.) also seem to think that the bill is forcing same-sex marriage on states.
So a quick refresher on what the bill actually does and does not do:
The Respect for Marriage Act requires the federal government to recognize same-sex marriages performed in states where it is legal. This is obviously very important in terms of taxes and federal benefits that are tied to marriage. This is not an expansion of the federal government so much as widening the group of people who have access to existing privileges, rights, and benefits. If senators like Cotton think the federal government is too involved with a state issue, they can certainly attempt to start rolling back the many, many, many federal regulations and policies that are connected to marital status. But I won't be holding my breath.
The Respect for Marriage Act does not require any state to legalize same-sex marriages. Many states still have bans on recognition on the books. If the Supreme Court ever decides to overturn Obergefell, those bans will likely become active again. The Times coverage somewhat downplays this, and some gay couples might end up being surprised at what happens if Obergefell ever goes away.
The Respect for Marriage Act does require states to recognize same-sex marriages performed legally in other states. While this feels awkward and intrusive from a federalism standpoint, do try to imagine what would happen if this were not the case. More specifically, try to imagine if this were not the case with heterosexual couples. Each state sets its own marriage rules, but each state historically recognizes legal marriage licenses from other states for heterosexual couples. Gay couples shouldn't be any different.
The Respect for Marriage Act lets religious organizations decline to participate in gay weddings. The bill specifically provides that churches and other houses of worship, religious groups, faith-based social agencies, etc. "shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action."
The Respect for Marriage Act does not resolve conflict over whether religious organizations may be required under the law to recognize same-sex marriages in certain circumstances. This is what Lee is attempting to address with his failed amendment. Can a church-connected foster agency refuse to place children with same-sex couples? Does a religious school with a position against same-sex marriage have to employ teachers in these marriages? The bill is silent on this conflict entirely. But that's also the current status quo, where the matter is somewhat unsettled. A recent Supreme Court decision in favor of a Catholic foster program failed to address the underlying question. The reason this is not addressed by the bill is because Republicans and Democrats are on opposite sides here and the amendment would certainly stop its passage. (A cynic might wonder if this is the intent in trying to push it into the bill.)
The Respect for Marriage Act does not resolve conflict over whether private businesses can be forced by law to provide goods and services for gay weddings. The bill is completely silent over state-level public accommodation laws and wedding services like wedding cakes, invitations, floral arrangements, and the like. The reason the bill is silent here is most certainly the same as above—taking a stand in either direction would kill the bill due to currently irreconcilable political differences. On Monday, the Supreme Court will be hearing arguments in 303 Creative v. Elenis, a case about whether a web designer and host can be forced to provide her services to create gay wedding pages despite her religious opposition to recognition.
And to be clear here, the Respect of Marriage Act is how same-sex marriage should be legalized, rather than just leaving it to the Supreme Court to make the decision. We should look askance at lawmakers like Lee who argue that Congress doesn't need to act here simply because there's no current case being pushed before the Supreme Court to undermine same-sex marriage. This is Congress' job: Having laws that specify the boundaries of federal marriage recognition is something we should expect lawmakers, not judges, to determine.
Now that the bill has passed the Senate, it will have to go back to the House for another vote, as part of the compromise with Senate Republicans which involved adding a section specifying that the Respect for Marriage Act doesn't allow for recognition of polygamous marriage. It's expected to sail back through the House and get President Joe Biden's signature before the lame-duck session ends.
The post What Does the Respect for Marriage Act Actually Say? appeared first on Reason.com.
]]>In the wake of the Supreme Court's West Virginia v. EPA decision in June, prominent commentators complained that Congress is too broken to solve major problems, and thus, the executive branch must take action—even if it's unlawful. The passage of the Respect for Marriage Act is an important reminder that Congress can still play its constitutionally assigned role of legislating in response to Supreme Court decisions.
West Virginia v. EPA held that the Environmental Protection Agency (EPA) lacked the statutory authority to enact the Clean Power Plan, a policy aimed at reducing U.S. emissions of global warming gasses. Several opinion pieces following the decision took no apparent issue with its statutory analysis but claimed that the Supreme Court nonetheless erred because Congress is no longer capable of taking on complex problems like climate change.
Memorably, labor lawyer Thomas Geoghegan argued for a "mild species of dictatorship" to address global warming. Richard Lazarus, a Harvard Law School professor, avoided explicitly calling for dictatorship but decried "the obvious reality that the current Congress is incapable" of enacting major legislation when it comes to environmental issues.
The Constitution vests legislative power solely in Congress, and for good reason. The executive branch may issue rules that fill in minor gaps inevitably left in legislation, but this minor role should not be interpreted to delegate legislative power to the executive branch.
Unfortunately, all too often, Congress has ducked its fundamental responsibilities by passing bills with open-ended grants of authority that unconstitutionally delegate legislative power to the executive branch. This is rarely, if ever, because Congress can't craft more detailed laws, but rather because it wants to avoid the difficult work and attendant political consequences of making hard decisions. In contrast, executive agencies have also been all too happy to discover unheralded powers granted to them in long-extant statutes in response to new problems. The related nondelegation and major questions doctrines exist to ensure that both legislative and executive branches stay in their constitutionally assigned lanes.
Geoghegan, Lazarus, and other critics of the nondelegation and major questions doctrines claim that judicial enforcement of these doctrines is a non-starter given what they perceive as Congress' fecklessness. Complex social problems can only be solved, they say, by the executive branch taking bold (if legally questionable) action.
The recent passage of the Respect for Marriage Act indicates that Congress remains capable of acting in response to Supreme Court decisions on controversial issues. The catalyst for this bill was a passage in Justice Clarence Thomas' Dobbs v. Jackson's Women Health Organization concurrence, suggesting that some of the Court's other substantive due process precedents should also be re-examined—including the Obergefell opinion that upheld a constitutional right to same-sex marriage. Although Dobbs' threat to Obergefell may well be overstated, the Respect for Marriage Act is an important indicator that Congress is able to legislate in response to Supreme Court rulings.
Same-sex marriage is politically popular, with Gallup finding that support for it rests at 71 percent in the United States. One lesson here may be that Congress will act to counter a Supreme Court ruling when such legislation is broadly popular—but not when it isn't. The failure of Clean Power Plan-like legislation to get through Congress may not reflect an institutional failure by Congress but instead a failure of persuasion by environmental advocates.
The Respect for Marriage Act also illustrates the merits of addressing social issues by a bipartisan, multimember Congress instead of executive agencies controlled by presidential appointees of one party. Rule making by executive appointees from one party tends to reflect an all-or-nothing approach to a given issue. When the Equal Employment Opportunity Commission (EEOC) reinterpreted Title VII to cover discrimination based on sexual orientation and gender identity, for example, it took a more absolutist approach than had earlier bills proposed in Congress to address the same issue.
A bipartisan legislature is more likely to try to accommodate concerns from all perspectives. The Respect for Marriage Act, for example, primarily codifies the right to same-sex marriage, a cause more commonly associated with liberals and Democrats. But it also contains provisions intended to preserve religious liberty, a view more typically associated with conservatives and Republicans.
Infantilizing Congress has had pernicious effects on our constitutional system of powers. Whatever one's opinion of the merits of the Respect for Marriage Act, it should be hailed as a positive sign that Congress can reclaim its rightful place in our system of constitutionally limited and enumerated powers.
The post The Respect for Marriage Act Shows That Congress Can Still Do Its Job appeared first on Reason.com.
]]>A bill that would provide federal protection to same-sex marriages cleared a crucial hurdle in the U.S. Senate on Wednesday. Twelve Republican senators voted to advance the bill—enough to remove the possibility of a filibuster.
The 62–37 vote sets up the Respect for Marriage Act to easily pass the Senate in the coming days, likely ensuring that the bill will make it to President Joe Biden's desk before the end of the lame-duck session and before Republicans take control of the House of Representatives in January. The bill passed the House in July with broad bipartisan support.
NEWS: 62-37, Senate votes to defeat a filibuster and advance the Respect For Marriage Act to codify federal protections for same-sex marriage.
This puts it on a glide path to passage.
— Sahil Kapur (@sahilkapur) November 16, 2022
Wednesday's vote was not merely a procedural victory for the bill, but a signal about the shifting cultural norms surrounding same-sex marriage that have finally filtered their way into the political realm. As Reason's Scott Shackford explained earlier this week:
Same-sex marriage recognition is legal across the United States, but it's the result of two Supreme Court decisions: United States v. Windsor from 2013, and Obergefell v. Hodges from 2015. The Defense of Marriage Act (DOMA), passed by Congress in 1996 and signed by then-President Bill Clinton, prohibits federal recognition of same-sex marriages performed by states. Even though it's unenforceable, it's still currently on the books.
Cut that '90s nostalgia. In about a quarter century, we've gone from having a Democratic president sign a bipartisan bill to ban federal recognition of same-sex marriage to having a dozen Republican senators back an effort to permanently ensure equal protections under federal law for same-sex unions. That's not a huge surprise if you pay attention to the polling—seven in 10 Americans believe same-sex marriage should be legal, according to Gallup—but it still represents a significant moment in the political fight to advance liberty.
Sen. Mitt Romney (R–Utah), one of the dozen Republicans to support the bill in Wednesday's vote, said in a statement that it "provides important protections for religious liberty."
"While I believe in traditional marriage, Obergefell is and has been the law of the land upon which LGBTQ individuals have relied," Romney said in that statement. "This legislation provides certainty to many LGBTQ Americans, and it signals that Congress—and I—esteem and love all of our fellow Americans equally."
The cloture vote on the motion to proceed on the bill that codifies the right to same-sex marriage and interracial marriage passes with support from 12 Republicans:
Tillis
Collins
Lummis
Portman
Capito
Sullivan
Romney
Burr
Blunt
Ernst
Young
Murkowski— Grace Segers (@Grace_Segers) November 16, 2022
Though, as Shackford notes, the expected passage of the Respect for Marriage Act will not be the final say in this matter (nothing in politics ever is). The bill provides federal legal protections to same-sex marriages performed in states where such unions are legal, and forces other states to recognize legal out-of-state marriages, but it does not prevent states from setting their own rules about who can get married.
NASA's Artemis I mission is still on its way to the moon and is expected to arrive on Monday. After that, it will spend roughly four weeks orbiting the moon before a planned return to Earth.
There are no astronauts on this mission, but that doesn't mean the Orion spacecraft is traveling empty. In addition to a Snoopy plushie, a few Lego astronaut figurines, and a couple of manikins, Space.com reports that it is also carrying tech that will be used to scan the moon's surface for water and yeast cells that scientists hope will yield some clues about the potential damage caused by long-term exposure to radiation in space. And, dare we hope, maybe will make for a really interesting beer.
Check out the latest issue of Reason for more about the moon mission, mankind's perpetual fascination with the stars, and the human ingenuity that's allowed us to reach out there.
Upside Foods is the first lab-grown-meat company to get the Food and Drug Administration (FDA) stamp of approval, but don't expect to find some at your local grocery store anytime soon. Wired reports:
There are just two smaller regulatory steps remaining until cultivated meat can be made available to the public. Upside's production facilities still require a grant of inspection from the United States Department of Agriculture (USDA) and the food itself will need a mark of inspection before it can enter the US market. These two steps are likely to be completed much more quickly than the long FDA premarket consultation process that resulted in the approval.…
The FDA decision means that cultivated meat products may soon be available to the public to try, although it's likely that tastings will be limited to a very small number of exclusive restaurants. Michelin-starred chef Dominique Crenn has already announced that she will serve Upside Foods' cultivated chicken at her restaurant Atelier Crenn in San Francisco.
• Should COVID-19 lockdowns initiated under former President Donald Trump's watch disqualify him from being elected again?
• The first standalone marijuana reform bill passed by both chambers of Congress is on its way to Biden's desk.
• Sam Bankman-Fried, the ousted founder of collapsed crypto company FTX, has been a leading voice calling for crypto regulation. But in a series of direct messages, he told Vox reporter Kelsey Piper, "Fuck regulators," adding, "they make everything worse."
• Georgia GOP Senate candidate Herschel Walker has thoughts on…vampires?
• Even by the standards of stadium subsidy deals, what New York City Mayor Eric Adams is planning for the city's Major League Soccer franchise might be one of the most insane giveaways ever:
Mayor Adams wants to take city land, do maybe $300m of work to improve it, give it to a soccer team owned by oil billionaires who wouldn't pay taxes, and collect $30m in rent in exchange. There's no math by which this anything but blows for city taxpayers. https://t.co/LO8mPy6H61
— Field of Schemes (@fieldofschemes) November 17, 2022
The post 12 Republicans Support Same-Sex Marriage in Key Senate Vote appeared first on Reason.com.
]]>After suspending consideration of a bill that would legally enshrine federal recognition of same-sex marriage in September, Senate supporters yesterday announced they were moving forward again. Senate Majority Leader Chuck Schumer (D–N.Y.) officially filed the Respect for Marriage Act on Monday to start the process of trying to get it passed.
Same-sex marriage recognition is legal across the United States, but it's the result of two Supreme Court decisions: United States v. Windsor from 2013, and Obergefell v. Hodges from 2015. The Defense of Marriage Act (DOMA), passed by Congress in 1996 and signed by then-President Bill Clinton, prohibits federal recognition of same-sex marriages performed by states. Even though it's unenforceable, it's still currently on the books.
After the Supreme Court struck down Roe v. Wade earlier in the year, the decision raised concerns that any number of past precedents may be at stake. Justice Clarence Thomas openly invited the court to reconsider some past decisions, and among them he specifically mentioned Obergefell.
And so interest grew in passing a new bill that formally struck DOMA from the books for good and replaced it with official federal recognition. The Respect for Marriage Act would require the federal government to legally recognize same-sex marriages performed in states where it's legal. Note that it wouldn't require states to legalize same-sex marriage, but it would require states to recognize such marriages from other states if they were legally performed. Some states have their own bans that would likely come back into force if Obergefell were overturned.
The Respect for Marriage Act passed the House in July this year, supported by all the Democrats and 47 Republicans. In order to pass the Senate, the bill needs 10 Republican supporters to avoid the filibuster. This ended up being a problem, because even though a majority of Republican Americans now support same-sex marriage, the party itself is having a bit of an identity crisis, and apparently enough Republican senators weren't willing to step up before the election.
And so, rather than attempting to make it a campaign issue—which could have alienated potential Republican allies—supporters pulled the bill from consideration in the Senate.
But now that the election is over and it seems as though the less culture-war-obsessed Republicans seem to have fared well, the bill's supporters think they can find the 10 Republicans they need.
A group statement from the bill's Senate proponents, Sens. Tammy Baldwin (D–Wis.), Susan Collins (R–Maine), Rob Portman (R–Ohio), Kyrsten Sinema (D–Ariz.) and Thom Tillis (R–N.C.), reads in part, "Through bipartisan collaboration, we've crafted commonsense language to confirm that this legislation fully respects and protects Americans' religious liberties and diverse beliefs, while leaving intact the core mission of the legislation to protect marriage equality. We look forward to this legislation coming to the floor and are confident that this amendment has helped earn the broad, bipartisan support needed to pass our commonsense legislation into law."
The bill has been tweaked to make it more palatable for conservatives. It has a section making it clear that nonprofit religious organizations like churches and similar entities "shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage." It also specifically states that nothing in the act shall be "construed to require or authorize Federal recognition of marriages between more than 2 individuals." So no federal recognition of polygamy is under consideration. Wimps.
As we can see from the bill's Senate proponents, it already has three Republicans on board. We'll see soon if they can grab another seven. And given that dozens of Republicans supported it in the House last time, it seems unlikely that there will be much resistance when it comes time to reconcile the bill in this lame-duck session, even as Republicans prepare to take majority control.
The post Federal Gay Marriage Bill Returns to Senate for Lame-Duck Session Vote appeared first on Reason.com.
]]>Earlier today, a bipartisan group of senators reached agreement on a package of amendments to the Respect for Marriage Act (RMA) that ensure it will have at least 60 votes in the Senate, enough to defeat a filibuster. As I explained in a post on the original legislation, which passed the House of Representatives in July, RMA arose from fears that the Supreme Court's reversal of Roe v. Wade in Dobbs presages a reversal of Obergefell v. Hodges, the 2015 ruling striking down state laws barring same-sex marriage.
Section 3 of the original RMA bars states from denying recognition to marriages contracted in other states "on the basis of the sex, race, ethnicity, or national origin" of the parties to the marriage. Section 4 requires the federal government to recognize—for purposes of federal law—any marriage that is "valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State." It thereby negates a key provision of the 1996 Defense of Marriage Act.
According to a summary released by Sen. Tammy Baldwin (D-Wisconsin), the deal announced today includes the following modifications to the Respect for Marriage Act:
•Protects all religious liberty and conscience protections available under the Constitution or Federal law, including but not limited to the Religious Freedom Restoration Act, and prevents this bill from being used to diminish or repeal any such protection.
• Confirms that non–profit religious organizations will not be required to provide any services, facilities, or goods for the solemnization or celebration of a marriage.
• Guarantees that this bill may not be used to deny or alter any benefit, right, or status of an otherwise eligible person or entity – including tax–exempt status, tax treatment, grants, contracts, agreements, guarantees, educational funding, loans, scholarships, licenses, certifications, accreditations, claims, or defenses – provided that the benefit, right, or status does not arise from a marriage.
• For instance, a church, university, or other nonprofit's eligibility for tax–exempt status is unrelated to marriage, so its status would not be affected by this legislation.
• Makes clear that the bill does not require or authorize the federal government to recognize polygamous marriages.
• Recognizes the importance of marriage, acknowledges that diverse beliefs and the people who hold them are due respect, and affirms that couples, including same–sex and interracial couples, deserve the dignity, stability, and ongoing protection of marriage.
Most of these modifications don't actually alter the original bill in any meaningful way. For example, nothing in the original RMA in any way infringed on the religious liberty of churches and other private organizations. The bill only imposed obligations on state and federal governments, not private parties. Similarly, the original draft in no way threatened anyone's tax exemptions or accreditations.
The exception is the polygamy provision. As I explained in a previous post, the original RMA would indeed have required the federal government to recognize polygamous marriages if a state were to legalize them. The amendment in today's deal would prevent that. I myself have no objection to recognition of polygamous marriages. But many on both left and right feel otherwise, albeit for somewhat different reasons. In any event, this provision is of limited significance, because it is highly unlikely that any state will in fact legalize polygamy anytime soon.
If the now-revised RMA passes, it would provide significant protection for same-sex marriage. But it would not be a complete substitute for Obergefell, should the Supreme Court actually overrule the latter. I explained why in my previous post:
Our federalism objection to Section 3 of DOMA was that it sought to use federal power to push for a uniform nationwide definition of marriage…. By contrast, Section 4 of the Respect for Marriage Act does the exact opposite. It gives total deference to states' definition of marriage. If state law says that a given relationship qualifies as a marriage, that's good enough for Uncle Sam! Call it state autonomy on steroids….
It's worth emphasizing that Section 4 avoids federalism problems in large part because it does not actually compel states to recognize same-sex marriages, or indeed any other kind of marriages. It just says that if a state does recognize them, the federal government will, as well. In that respect, it falls short of offering the degree of protection for same-sex marriage that currently exists under Obergefell.
Section 4 bars states from denying recognition to same-sex marriages contracted elsewhere. But it does not require them to allow such marriages to be formed within their own territories. Nonetheless, Section 4 would potentially allow residents of states that bar same-sex marriages to enter into them in another state, and then come home, secure in the knowledge that their home state will have to recognize their marriage.
For reasons I summarized here, I think a reversal of Obergefell is highly unlikely. See also co-blogger Dale Carpenter's analysis of that issue. But the now near-certain enactment of the revised RMA will provide some valuable protection to same-sex couples in the event our predictions turn out to be wrong.
If Obergefell does get overruled, Section 4 could potentially be vulnerable to claims that it is beyond the scope of Congress' authority. In my view, it should be upheld against such challenges under Congress' authority under the Full Faith and Credit Clause. See also this analysis by Steve Sanders, a leading academic expert on the Clause.
The post Senators Reach Bipartisan Deal to Pass Respect for Marriage Act Protecting Right to Same-Sex Marriage appeared first on Reason.com.
]]>The Senate will not be voting this month on whether to legislatively enshrine federal same-sex marriage recognition into law. Instead, supporters of the bill are pushing the vote until after the midterms, ostensibly in the hopes it will bring more Republicans on board.
Just about a week ago, Senate sponsors of the Respect for Marriage Act said they thought they'd be able to get the 10 Republican votes necessary on board if they made some amendments to the bill in the name of protecting religious freedom. But Thursday afternoon, sponsors of the bill announced they're going to wait.
The Respect for Marriage Act passed the House in July, 267–157. The bill got 47 yes votes from Republicans. In the Senate, the bill needs 10 Republicans to support it to avoid a filibuster (assuming that all Democrats support it). Sen. Susan Collins (R–Maine) is one of the sponsors and had been working with Sens. Rob Portman (R–Ohio) and Thom Tillis (R–N.C.) to get those 10 votes by attempting to appeal to moderate Republicans like Mitt Romney (R–Utah).
But with the election so close, The Washington Post notes, some Republicans may be worried about voter responses. It's not likely to cause conservatives to switch votes to Democrats, but it could possibly cause some not to turn out at all. Portman, who is retiring after this year, said it will take "a lot of political sting out of it" if the vote happens in the post-midterm lame duck election.
The Respect for Marriage Act is intended to serve as a backstop protecting same-sex marriage should the Supreme Court decide to revisit and reverse Obergefell v. Hodges, the 2015 ruling that obligated the federal government and all states to legally recognize these relationships. The Respect for Marriage Act would require the federal government to recognize same-sex marriages in states where it was permitted. And while it doesn't require any individual states to permit and license same-sex marriages within its own borders, it does require states to recognize marriages legally performed in other states.
There is absolutely no chance that the Supreme Court will reverse Obergefell in the next year, if ever, but it's nevertheless preferable for a democratic republic like the United States to put this policy into place via a law voted on by Congress and signed by the president rather than leaving it up to the judiciary. The recent reversal of Roe v. Wade (1973) has revived interest in "court proofing" legal recognition.
While the decision to delay the vote is obviously political, this is a situation where politicians are actually trying to get the law passed rather than win elections. For that reason alone, the delay should be appreciated. Particularly on LGBT issues, there is a number of examples where laws are deliberately crafted not to be passed but to serve as wedge issues to divide voters.
The Equality Act, for example, is often sold as a bill that would enshrine federal anti-discrimination protections for LGBT people. But the bill is extremely broad, dramatically increasing what counts as a public accommodation under federal law and specifically forbidding people from using religious freedom against accusations of discrimination. It is seemingly designed to push Republicans away (which is exactly what happened last year) when a more compromising bill could get passed. But then Democrats and Republicans wouldn't be able to campaign on these culture war differences.
The decision to delay a vote here actually puts the success of a bill that matters to LGBT people ahead of political affiliation. Anybody disappointed that this bill will not be used as a campaign point should perhaps take a step back and stop trying to yank LGBT citizens around.
The post No Senate Vote on Gay Marriage Until After Midterms appeared first on Reason.com.
]]>A bill to formally recognize same-sex marriage at the federal level may make it to the Senate floor within weeks as lawmakers work on compromises that could get enough Republican support to avoid a possible filibuster.
The Washington Post reports that proponents of the Respect for Marriage Act believe they can get 10 votes among Republican senators if the bill is amended to provide some protections for religious freedoms. "But those Republicans won't announce support for the legislation until the vote, so they can be shielded from attacks that could pressure them to vote otherwise," the Post adds.
Thanks to Obergefell v. Hodges (2015), recognition of same-sex marriage is the law of the land in all 50 states. But the recent Dobbs ruling striking down Roe v. Wade has many people worried whether the Obergefell is in danger. Justice Clarence Thomas wrote a concurrence in Dobbs arguing that the logic of Dobbs should encourage the court to reconsider Obergefell.
Because national same-sex marriage recognition was the result of a Supreme Court decision, many states still have laws banning it on the books, even if they aren't actually in effect at the moment. Should Obergefell be overturned (or another decision, United States v. Windsor, which ruled the federal Defense of Marriage Act was unconstitutional), we could end back up in a messy space where some states have laws that forbid legal recognition of same-sex marriages that took place in other states where they're legal.
The Respect for Marriage Act would formally repeal the Defense of Marriage Act and specify that the federal government will recognize same-sex marriages from any state where they're legal. While it wouldn't force states to legalize same-sex marriage recognition within their own borders, it would require states to recognize marriages from states that do legally allow them (something states already typically do for heterosexual marriages despite the laws regarding those marriages being different from state to state).
The Respect for Marriage Act passed the House and managed to pull in 47 Republican votes. The Senate, though, is harder, and as The Washington Post notes, some Republicans aren't revealing how they'll vote. It currently has two Republican sponsors in the Senate—Sens. Susan Collins of Maine and Rob Portman of Ohio.
The Post doesn't detail what sort of compromises are under consideration, but we do know that a number of Republicans who support LGBT rights also support compromises that do not force private small businesses, churches, or religious organizations to provide goods or services to same-sex couples if they object to same-sex marriages. The Fairness for All Act, for example, is a compromise bill pushed forward by some Republicans that would add gay and trans people as categories to federal anti-discrimination laws but would provide some religious exemptions.
Similarly, it's easy to imagine a compromise marriage recognition bill detailing that no church or religious leader can be forced to host or provide a gay wedding and that small businesses with religious owners (like a bakery, florist, or photographer) can't be forced to provide goods or services to LGBT people.
This would be a good compromise. There is no dearth of people in the wedding industry willing to take money from gay couples to give them the celebration of their dreams. This is not a massive civil rights crisis that requires government intervention. The Supreme Court later this year will be hearing a case about whether Colorado can force a web designer to host images of same-sex weddings against her own religious objections. She will probably win.
Passing the Respect for Marriage Act may feel unnecessary, but it's actually good to have a law on the books rather than expecting the Supreme Court to hold fast on a precedent. This is what Congress is for. The Dobbs decision has shown us that what a handful of judges decide can be overturned by another handful of judges. Laws, written by a body voted into office, are a much more consistent and stable way to maintain a practice the public already widely supports.
The post Senate May Take Up Federal Same-Sex Marriage Bill This Month appeared first on Reason.com.
]]>Would you believe the American Civil Liberties Union (ACLU) and Republican Florida Gov. Ron DeSantis have something in common? They both believe that the state should be able to force web companies to host content that these platforms disagree with or find morally objectionable in some fashion.
If that sounds remarkable, check out the amicus brief that the ACLU submitted Friday defending the authority of the state of Colorado to make a small web company host pictures of gay weddings against the will of the company's owner. Note how similar it is to Florida's attempts to force web companies to carry campaign messages from political candidates against the platforms' will.
Lorie Smith, owner of web design firm 303 Creative, is challenging Colorado's Anti-Discrimination Act, part of which requires businesses in the state to accept customers regardless of race, sex, sexual orientation, and many other categories. Smith has moral objections to the legal recognition of same-sex marriage. She says does not intend to discriminate against any LGBT customers, but she also believes that forcing her to post images of gay weddings on her site is mandating that she carry expressive speech and violates her First Amendment rights.
The Supreme Court agreed in February to hear 303 Creative LLC. v. Elenis later this year. The question at hand is whether a public accommodation law can compel an artist to speak or remain silent without violating the First Amendment.
The brief by the ACLU rejects the central question and instead attempts to reframe the entire argument as whether "an artist who has chosen to open to the business to the public at large" can be prohibited by a public accommodations law from "discriminating against customers on the basis of a protected characteristic." From the very start, we hit a problem that is consistent throughout this brief. The ACLU repeatedly treats refusing to host a particular image or message (a gay wedding) as discrimination against an individual or couple (a gay person or couple). This is obviously not the same thing, and it strikes at the heart of the flaws of the ACLU's argument.
Then, the ACLU argues that because 303 Creative is a business that sells services to the public, it must offer those goods in a nondiscriminatory manner according to Colorado law. Again, the ACLU deliberate blends the message and the client: "So, too, here, 303 Creative need not offer any particular website service to the public, but once it chooses to sell wedding-website design services to the public at large, it cannot selectively decline to sell those same services to same-sex couples."
Smith's point is that she's not refusing to sell all services to same-sex couples. She's refusing to host wedding pictures of same-sex couples because she holds religious objections to gay marriages and, therefore, does not want her company to be forced to be a vehicle for expressing this celebration.
The ACLU would have us see speech discrimination and customer discrimination as the same thing. But if 303 Creative refused a customer's request to host a bunch of images of an ISIS terrorist attack, is that discrimination against the customer's religion if the customer is also Muslim? Clearly, it's not. She's not turning away the customer because he or she is Muslim. She's refusing to host images she finds objectionable. In this exaggerated example, it's very easy to recognize the imposition on free speech and the violation of the business' First Amendment rights.
Similarly, it was fairly easy to see that Florida's attempt to mandate that Facebook carry campaign statements by anybody who runs for certain offices in the state would force the tech giant to potentially carry some content it would find truly offensive and display it in front of other customers who probably didn't want to see it. And so it shouldn't have come as a surprise that federal judges determined that Florida did not have the authority to make such demands of these businesses and, by attempting to do so, violated their First Amendment rights.
In this case, the ACLU is doing everything in its power to encourage the Court to reject any consideration of Smith's and 303 Creative's First Amendment rights, even going so far as attempting to reframe the central question to make it appear as though these rights are not relevant to the case. The ACLU would have us believe this is just a neutral application of an anti-discrimination law and that creating exceptions for businesses that involve creative expressions or customized works is "unworkable." This is clearly untrue. In 2019, Kentucky's Supreme Court determined that a T-shirt printer couldn't be forced to print pro-gay messages on his products in violation of his religious beliefs. The court was easily able to determine the difference between discriminating against a customer vs. rejecting a message. It is not confusing at all!
One of the more depressing inclusions in this ACLU amicus brief is its use of a Supreme Court case from 1968, United States v. O'Brien, to attempt to bolster its argument that the state of Colorado has the power to regulate speech in this way. In that case, David Paul O'Brien was convicted of violating federal law by publicly burning his draft card in protest of the Vietnam War. The Supreme Court determined that the prohibition against burning draft cards didn't violate the First Amendment because the federal government had a compelling interest in maintaining the draft and the rule was narrowly tailored to achieve that goal.
O'Brien was represented in this case by Marvin M. Karpatkin, who after this case would become an ACLU attorney and join its board of directors. He died in 1975. There's now a fellowship program at the ACLU named after Karpatkin.
In this brief, the ACLU essentially throws Karpatkin's arguments in the trash bin all in favor of supporting the power of Colorado to force a web company to carry gay wedding photos. Once, lawyers connected to the ACLU fought for the right to burn draft cards. Today's ACLU lawyers say, "No one disputed that O'Brien's burning of a draft card to protest the Vietnam War was expressive. But because the government's interest in prohibiting destruction of draft cards was unrelated to what any particular act of destruction communicated, intermediate scrutiny applied. And the result would have been precisely the same had O'Brien burned his draft card as performance art rather than political protest," and apparently believe that this is a good and defensible outcome.
How far they've fallen. Take a look at this paragraph:
Any incidental burden these laws impose on public accommodations that sell expressive goods and services is no greater than necessary to vindicate the government's anti-discrimination interest. Where the goal is to end discrimination in the public marketplace, an exemption for all businesses that might be deemed "expressive" (theaters, bookstores, architecture and law firms, hairdressers, gardeners, florists, caterers, and the like) would defeat the law's very purpose.
This would seem to argue that Colorado could mandate bookstores and theaters to carry books and movies that contain content that the business owners find objectionable. I'll do the ACLU a favor here and point out that's not what they mean. It has again confused messages with customers. They are attempting to argue that businesses that produce "expressive" works can't turn away customers because they fall under protected characteristics, which is true. But, yet again, they're deliberately confusing "serving a customer" with "printing and distributing the customer's message."
The ACLU's brief ends by listing a litany of wedding-related customizable products, including custom M&Ms, and wondering if this means that all of these businesses could refuse to serve same-sex couples. Do they want to? It's worth noting here that most businesses don't want to refuse service to them. This is not an actual crisis for gay couples. The only people who are potentially harmed here are those who get punished by the state.
If we're going to push absurd hypotheticals here, let me conclude with some of my own. Could 303 Creative be forced by Colorado law to host pictures of a gay wedding where a Bible is burned as part of the ceremony? What about a Koran? What about an American flag? Or a Russian flag? Would the ACLU defend Colorado's right to force 303 Creative to host images of a gay couple burning down ACLU headquarters at their wedding ceremony?
This is an embarrassingly bad brief by the ACLU, turning its back on decades of protecting citizens against authoritarian demands on citizen speech. They even threw one of their own lawyers under the bus in the process.
The post ACLU Abandons First Amendment in Colorado Gay Wedding Web-Hosting Case appeared first on Reason.com.
]]>In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Peter Suderman, and Nick Gillespie discuss the passage of the Respect for Marriage Act as well as Senate Majority Leader Chuck Schumer's (D–N.Y.) awful marijuana legalization bill.
2:07: The House passes the Respect for Marriage Act.
20:04: Schumer's marijuana legalization bill
36:18: Weekly Listener Question:
What's an idea for a book each of you have secretly wanted to write (can be on anything, politics or otherwise) but have never had the opportunity to or gotten around to, and why? (Bonus points if one of the ideas is "Declaration of Independents II: This Time, It's Anarchical")
Mentioned in this podcast:
"Christians Started the Wedding Wars," by Stephanie Slade
"Chuck Schumer's Doomed Marijuana Monstrosity Is Not a Serious Attempt To Repeal Pot Prohibition," by Jacob Sullum
"The Federal Ban on Medical Marijuana Was Not Lifted," by Jacob Sullum
"The Senate's Election Reform Bill Is Surprisingly Logical and Bipartisan," by Eric Boehm
"Unacknowledged Legislators Impeached," by Tim Cavanaugh
Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.
Today's sponsors:
Audio production by Ian Keyser
Assistant production by Hunt Beaty
Music: "Angeline," by The Brothers Steve
The post Did Congress Just Attempt To Do Its Job? appeared first on Reason.com.
]]>In my last post, I covered some potential federalism issues raised by the Respect for Marriage Act, which seems to protect same-sex marriage in the event the Supreme Court overrules Obergefell v. Hodges. Among other things, I cited the work of Prof. Steve Sanders of Indiana University, a leading academic expert on same-sex marriage and the Full Faith and Credit Clause.
After reading my post, Steve indicated he largely agreed with my analysis, and sent me the following comment, which he has authorized me to reprint here. I have reprinted Steve's comment unaltered, except for a couple clarifications I have put in brackets. Steve's piece is in the blockquote. Everything else in the post is my own writing. Here is Steve's comment:
The conventional scholarly wisdom is that the Article IV Full Faith and Credit Clause doesn't, on its own, compel interstate recognition of marriages, because at the end of the day, a state's definition of marriage is just an expression of statutory policy, and the Supreme Court has long said that FF&C does not mean states are obligated to defer to the policy ideas of other states. I have pushed back on that conventional wisdom, as you noted [in my original post]. But what's key is that the FF&CC also contains a grant of power to Congress to prescribe by statute the "effect" of one state's "acts" in other states.
Is there some cost to federalism in the Respect for Marriage Act? Sure. But the FF&CC was intended as a unifying device, not a states-rights provision. And as a policy matter, the cost is far outweighed by the chaos and injustice that would be caused by allowing one state to nullify another state's existing legal marriage. Aside from the appalling human costs, there are federalism implications to that as well. The Respect for Marriage Act basically says, "You are required to give effect to a legal relationship validly created under another state's law. This is one country, one where people move around all the time. You can't treat their marriage license like a worthless piece of foreign currency."
In his famous article on the Full Faith and Credit Clause, Justice [Robert] Jackson argued that "[w]here there is a choice," the Clause should be used to "meet the needs of an expanding national society for a modern system of administering, inexpensively and expeditiously, a more certain justice." Doing so was important to "certainty and order."
In another related area of family law, child custody, federal law passed pursuant to the FF&CC already imposes certain requirements and restrictions on states to prevent "parental kidnapping" and relitigation of custody in another state.
It's often forgotten that the federal DOMA [the 1996 Defense of Marriage Act], in addition to forbidding federal recognition of same-sex marriages, also included the following section: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
That was basically the mirror image of the new provision in the Respect for Marriage Act. DOMA purported to allow states to deny recognition; the new law requires them to give recognition. I don't think anyone seriously questioned Congress's power in DOMA to prescribe the "effect" of full faith and credit in this way, but it never became an issue because it was basically superfluous. It was generally accepted that states already had the inherent power to deny recognition to marriages of which they disapproved.
One thing that's a little unclear is whether this language is intended to protect parent-child relationships that arise through SSM. If two women are married, one gives birth and the other is the second legal parent, is the non-biological mother's parental status protected by this law? Arguably it's a "right or claim arising from" the marriage, so I hope that's the understanding courts would give it, but the new law could be more clear.
I think Steve's points above are well-taken. While states may not be required to recognize out of state marriages by virtue of the FFC Clause taken alone, there is a much stronger case that Congress can use its powers under the Clause to require them to do so. If it cannot, that would—as Steve notes—also call into doubt existing federal statutes requiring states to defer to other states' child custody laws, lest they open the door to "kidnapping" and repeated relitigation of custody issues.
I think Steve is also right that Section 3 of the Respect for Marriage Act is less clear on the issue of whether states are required to recognize the parental rights of same-sex couples married out of state. Probably the best interpretation of the Act is that they are (also for the reason Steve says). But it's an issue that might end up getting litigated if the Act gets enacted in its current form.
The post Steve Sanders on Full Faith and Credit and the Respect for Marriage Act appeared first on Reason.com.
]]>Florida Republican Sen. Marco Rubio is saying he won't vote for a new bill that would repeal the Defense of Marriage Act (DOMA), the 1996 law that banned federal recognition of gay marriage. But his explanation suggests Rubio doesn't truly understand either DOMA or the new bill.
The Respect for Marriage Act, which passed the House last night, would strike down DOMA and require states to recognize same-sex marriages that have been performed legally in other states.
Under current law, thanks to two Supreme Court decisions, same-sex marriages are legally recognized all across the country, and DOMA is not being enforced, nor are any state-level bans that are still on the books. But the overturning of Roe v. Wade has led to concerns that other Supreme Court precedents may be at stake. The Respect for Marriage Act is intended to preemptively respond to a potential future Supreme Court ruling overturning the judicial precedents that legalized same-sex marriage nationally. If the Respect for Marriage Act were to pass, DOMA would no longer exist and the federal government would still recognize same-sex marriages performed in states that allow it.
The Respect for Marriage Act passed the House with support of all Democrats and 47 Republicans (including six Republicans from Florida). Now all eyes are on the Senate to see if 10 Republicans will support the bill and thereby make it immune to a filibuster.
Over at Business Insider, Rubio says he's a "no" vote because marriage is a state issue, which would be a defensible position if it weren't for the fact that DOMA—the law he wants to uphold on states rights grounds—makes marriage a federal issue.
"States decide marriage laws, they always have," Rubio said, according to Business Insider. "It's why you can get married in Las Vegas by an Elvis impersonator in two hours." He insisted to Business Insider that the bill was a "waste of our time on a non-issue."
This characterization of marriage would be lovely and wonderful if it were true. What he is either ignoring or not understanding is that DOMA deliberately stepped in and stopped the federal government from recognizing these marriages, and it affected everything from employee benefits and taxes, to adoption regulations and immigration. The states may be the ones setting the guidelines for marriage but federal recognition is not an afterthought. Whether the federal government recognizes a couple's marriage affects their lives significantly.
Rubio is correct that you can currently go to Las Vegas and get married by an Elvis impersonator. And, assuming you followed Nevada's laws, you can also come home and expect that your marriage will be recognized by your home state. But under DOMA, states that refuse to allow same-sex marriages could ignore the legal protections inherent in marriages performed in states where it is legal. That may be a "non-issue" for heterosexual couples, but it's a pretty big deal for the roughly 980,000 same-sex households in the U.S.
The irony here is that the Respect for Marriage Act would create the state-level system that Rubio appears to think is provided by DOMA. The Respect for Marriage Act does not require or force any state to marry same-sex couples. It does require them to recognize same-sex marriages legally performed in other states.
So in the event that the Supreme Court gay marriage precedents get struck down, Florida's statute banning clerks from giving marriage licenses to same-sex couples would be restored. Under the Respect for Marriage Act, Florida would, however, be required to recognize same-sex marriages from Massachusetts (which legalized recognition prior to the Supreme Court's ruling and wouldn't be affected by its reversal).
If Rubio actually did want control over marriages to remain at the state level, then honestly he should be jumping at the chance to get rid of DOMA.
The post Marco Rubio Says He Won't Vote To Eliminate the Defense of Marriage Act, But His Explanation Makes No Sense appeared first on Reason.com.
]]>Yesterday, the House of Representatives passed the Respect for Marriage Act. The broad bipartisan support it got (47 Republicans joining all the Democrats) suggests it might well pass the Senate, too. The bill is primarily motivated by fears that the Supreme Court's reversal of Roe v. Wade in the Dobbs case also presages a reversal of Obergefell v. Hodges, the 2015 ruling striking down state laws barring same-sex marriage. For reasons I summarized here, I think that is highly unlikely to happen. See also co-blogger Dale Carpenter's analysis of that issue.
But let's assume Dale and I are wrong, and the Court does indeed go on to overrule Obergefell. In that event, the Respect for Marriage Act might face constitutional challenges on the grounds that it exceeds the scope of Congress' authority and intrudes into areas left to the control of state governments. Indeed, Dale and I (along with several other federalism scholars, including VC bloggers Randy Barnett and Jonathan Adler) filed an amicus brief in Windsor v. United States (2013) arguing that the earlier Defense of Marriage Act (DOMA)—which enacted a federal definition of marriage limited to opposite-sex couples—exceeded the scope of congressional power. The Court's majority opinion in Windsor prominently cited our brief, though it adopted our argument only in part.
Could not similar federalism objections be successfully raised against the Respect for Marriage Act? It's an entirely legitimate question. The answer is "definitely not" with respect to the act's provisions that apply to the definition of marriage used in federal law, and "probably not" when it comes to the provision requiring states to recognize same-sex marriages contracted in other states.
Here is the key provision of Section 4 of the Act, establishing a new definition of marriage with respect to eligibility for various federal tax benefits and programs:
(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
(b) In this section, the term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
Our federalism objection to Section 3 of DOMA was that it sought to use federal power to push for a uniform nationwide definition of marriage, thereby undermining the autonomy of the states, and pursuing an objective beyond the enumerated powers of Congress. By contrast, Section 4 of the Respect for Marriage Act does the exact opposite. It gives total deference to states' definition of marriage. If state law says that a given relationship qualifies as a marriage, that's good enough for Uncle Sam! Call it state autonomy on steroids.
If anything, Section 4 could be criticized for deferring to the states too much. Imagine if Utah or some other state decides to grant legal recognition to polygamous marriages. Section 4 would require the federal government to do the same. If a person has multiple spouses under state law, all of them could potentially be eligible for various federal tax deductions and other benefits that are reserved for married people (though they would also all be subject to the marriage "tax penalty"). Such hypotheticals don't much bother me. But I could imagine social conservatives and some feminists worrying about them (the latter because they might fear legal recognition of polygamy would lead to the subordination of women). Regardless, this slippery slope concern is not a constitutional federalism problem. It's a matter of policy.
It's worth emphasizing that Section 4 avoids federalism problems in large part because it does not actually compel states to recognize same-sex marriages, or indeed any other kind of marriages. It just says that if a state does recognize them, the federal government will, as well. In that respect, it falls short of offering the degree of protection for same-sex marriage that currently exists under Obergefell. It's also worth noting that state laws banning same-sex marriage can violate individual constitutional rights, even if the federal government lacks any general power to legislate on the definition of marriage. There is no contradiction between these two positions and I in fact hold both.
The federalism implications of the other key provision of the Respect for Marriage Act are more debatable. Section 3 requires states to recognize various types of marriages contracted in other jurisdictions, even if it doesn't itself allow people to enter into them:
(a) …. No person acting under color of State law may deny
(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or
(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.
Unlike Section 4, this provision does require state governments to recognize some types of marriages they are opposed to. The ban on discrimination based on race, ethnicity, or national origin is easily justified based on Congress' powers under Section 5 of the Fourteenth Amendment, which allows "appropriate" legislation to enforce the antidiscrimination provisions of that same Amendment. Racial and ethnic discrimination in marriage law is unconstitutional under the Supreme Court's ruling in Loving v. Virginia (1967). Despite some scaremongering to the contrary, there is zero chance the Court will overrule Loving. No justice—including Clarence Thomas, who has explicitly defended Loving—has any desire to do that.
But if the Court overrules Obergefell, the requirement that states not discriminate on the basis of "sex" in recognizing out-of-state marriages might be challenged on federalism grounds. It then probably could not be justified based on Section 5. But it might well stand as an exercise of Congress' power to enforce the Full Faith and Credit Clause, which states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The precise scope of states' obligations and Congress' powers under FFC is a matter of longstanding debate. VC co-blogger Steve Sachs, a leading expert on this subject, argues that states have broad discretion to refuse to recognize out-of-state marriages in the absence of federal law to the contrary, but that Congress also has broad power to compel such recognition. Legal scholar Steve Sanders has argued that states must recognize out-of-state marriages even if there is no specific congressional legislation requiring them to do so.
This is an area of some uncertainty. But, on balance, I think it likely that Congress can require recognition of marriages contracted in other states, even if states would not be compelled to grant it otherwise. As Sanders notes, marriage and child custody are precisely the kinds of important legal relationships where certainty and stability are especially important. Achieving that kind of certainty and stability is one of the key reasons why the Full Faith and Credit Clause was inserted into the Constitution to begin with. And FFC also gives Congress specific power to enact "general Laws" defining and enforcing the scope of state obligations under the Clause. It doesn't have to be inferred from ultra-broad readings of other congressional powers. There is therefore a solid defense of this provision from the standpoint of textualism and originalism, the kinds of methodologies that appeal to the conservative majority on the Court.
That said, I am no expert on full faith and credit. So I am much less sure about my conclusion on this part of the Act than Section 4. In the unlikely event that Obergefell gets overruled in the aftermath of Congress passing the Respect for Marriage Act, the full faith and credit issue might well lead to litigation.
UPDATE: It's worth noting that the Respect for Marriage Act includes a severability provision. Thus if courts were to invalidate Section 3, Section 4 will be unaffected (and vice versa).
UPDATE #2: Prof. Steve Sanders has sent me comments on the full faith and credit issue raised in this post, which I have posted (with his permission) here.
The post Federalism and the Respect for Marriage Act appeared first on Reason.com.
]]>In the wake of the reversal of Roe v. Wade, Democratic (and at least one Republican) lawmakers are looking to make sure gay marriage recognition is protected from potential future Supreme Court decisions.
On Monday, Rep. Jerry Nadler (D–N.Y.) reintroduced the Respect for Marriage Act, a bill that would overturn the federal Defense of Marriage Act (DOMA), the 1996 law that defined marriage as being between one man and woman and forbid federal recognition of same-sex marriages in states that had legalized it.
The Respect for Marriage Act has been introduced before, as far back as 2009. The last time it was introduced was in January 2015, but just months later the Supreme Court ruled in Obergefell v. Hodges that the federal government and states must recognize same-sex marriages. DOMA remained on the books but was now unenforceable.
But in the recent Dobbs v. Jackson Women's Health ruling that reversed Roe v. Wade, Justice Clarence Thomas wrote a concurrence that said he believed some other rulings were subject to rethinking based on the logic the majority used to justify Dobbs. Obergefell was one of those rulings Thomas referenced. Though no other justices signed onto Thomas' dissent, he clearly intended to invite states to bring challenges to these precedents in order for them to be reconsidered.
If Congress were to pass the Respect for Marriage Act, the federal government would then legislatively recognize these marriages even should the Supreme Court subsequently strike down Obergefell (or United States v. Windsor, a 2013 decision that was a precursor to Obergefell and held that DOMA is unconstitutional).
Further, the Respect for Marriage Act would also require that states recognize same-sex marriages that take place in states where it hasn't been legalized. This matters because, after the Obergefell ruling, several states left laws or state constitutional amendments blocking same-sex marriage recognition on the books. They currently don't do anything because of the Supreme Court's ruling, but they're still there. Should Obergefell be overturned, gay marriages may stop being recognized in some states. The Respect for Marriage Act would require these states recognize legal marriages from other states.
The House bill (H.R. 8404) has 160 cosponsors currently, all Democrats. The Senate version of the bill will be introduced by Sen. Dianne Feinstein (D–Calif.). Sen. Susan Collins (R–Maine) has signed on as a cosponsor and appears at the moment to be the only Republican. It'll take more Republican support to withstand the possibility of a filibuster. It could happen, but don't hold your breath. Polling shows that as of 2021, even a majority of Republicans now support same-sex marriage recognition, and it is supported across all age groups. But we're also currently not in a political environment where cooperation across the aisle is likely to happen (unless it involves increasing federal spending on government agencies and pork projects).
While I still believe it's very unlikely that this current Supreme Court is interested in rethinking Obergefell, it's nevertheless a good idea for lawmakers to affirmatively pass legislation to confirm same-sex marriage recognition. If the public wants same-sex marriage to be the law of the land, and polls indicate that's genuinely now what most people desire, it's supposed to be lawmakers, not the Supreme Court, who decide what the contours of it should be.
The post Congress Considers Gay Marriage Bill To Avoid a Future Supreme Court Showdown appeared first on Reason.com.
]]>Has the mask finally dropped, revealing the true intentions of the majority to wipe the slate clean of unenumerated fundamental rights that social and religious conservatives don't like?
To begin an answer to that question, I count no fewer than four places in the Dobbs opinion that disavow any implications for other rights. I refer to these as the reassurance passages. Two of them were already in the leaked draft opinion. Two more have been added because they are responses to the dissent (which would not have been available when Justice Alito circulated his first draft in February).
(1) Slip op. 32 (in the original draft), after listing numerous substantive due process rights:
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call "potential life" and what the law at issue in this case regards as the life of an "unborn human being." See Roe, 410 U. S., at 159 (abortion is "inherently different"); Casey, 505 U. S., at 852 (abortion is "a unique act"). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
(2) pp. 37-38 (added to the final opinion):
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States' interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent's analogy is objectionable for a more important reason: what it reveals about the dissent's views on the protection of what Roe called "potential life." The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a "potential life," but an abortion has that effect.
(3) p. 66 (in the original draft):
Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would "threaten the Court's precedents holding that the Due Process Clause protects other rights." Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, "[a]bortion is a unique act" because it terminates "life or potential life." 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is "inherently different from marital intimacy," "marriage," or "procreation"). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
(4) pp. 71-72 (added to the final opinion)
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8. But we have stated unequivocally that "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion." Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed "potential life." Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by "appeals to a broader right to autonomy." Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.
The number and clarity of these passages are extraordinary. To these one could add the separate concurrence of Justice Kavanaugh, who addresses concerns that were raised in the briefs:
First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.
(As an aside, I don't count Justice Thomas's view as portending much. It's notable that he wrote only for himself. His views about substantive due process are longstanding, well-known, and idiosyncratic. No other sitting justice has ever expressed an interest in completely abandoning substantive due process and all of the precedents it has generated.)
The reassurance passages go well beyond mere rote observations that the Court is not overruling these precedents because it has neither been asked to do so nor is it required to do so in order to decide the case before it. The passages are also not mere bald assertions, devoid of substance, which can be dropped without any pretense of consistency. Instead, they contain two substantive principles.
The first is the Court's observation that abortion, which involves the taking of what is at least potential human life, has no parallel in other rights-contexts. That distinction is admitted by just about everyone. The Court does not say precisely how this distinction should affect the constitutional analysis of whether the right exists. But I read the Court as suggesting that the analysis of whether a right should be protected turns in part on the countervailing interests at stake in not protecting it–here, the destruction of potential life (the kind of ultimate "moral question" the Court thinks judges cannot or should not resolve). Resolution of the potential life question also goes to the strength of the government's interest in regulation.
Further, to the extent new rights can be recognized (or old rights can be recognized in new contexts), we do so by analogy. But there is no analogy close to the abortion right, which is sui generis. Under this view, the right to same-sex marriage (Obergefell) is at least adjacent to the recognized right to marry (Loving) in a way that the right to end a pregnancy (Roe) is not adjacent to the recognized right to prevent a pregnancy (Griswold).
The second principle is new in the published decision. The opinion notes that, even if some other substantive due process decisions were initially wrong, the Court should continue to stand by them under stare decisis principles. Specifically, the reliance interests in, say, same-sex marriage are much more concrete. (Query, however, why the reliance interests in Lawrence and Griswold would be any greater than in Roe.) Also, protection of the rights to contraception, sexual intimacy, and marriage, are more judicially manageable (workability). Gay couples have a right to marry on the same terms as others, which does not depend on whether a regulation places an undue burden on that right. It's an on-or-off switch, not a balancing of incommensurable interests.
I have previously written that overruling Roe would present no "immediate or direct threat" to the various other substantive-due process precedents, including Obergefell. The Court has now effectively doubled-down on its reassurances about this. There are simply not five votes to overrule Obergefell or the other decisions. I'd wager there are not more than two to do so.
It is true, as both Justice Thomas and the dissent point out, that rights to contraception, sexual intimacy, and same-sex marriage do not fit easily within the Court's narrow history-and-tradition methodology. That might spell longer-term trouble under a different cast of Justices who may not feel as much obligation to ancestral precedents.
So could Obergefell, Lawrence, Griswold, and even Loving be overruled sometime in the future? Of course. We know that even half-century-old precedents are not sacred. And the future is a long time. It is a foreign land in which anything can happen. But Dobbs does not augur a majority willing to go there.
The post Why Other Fundamental Rights Are Safe (At Least for Now) appeared first on Reason.com.
]]>In today's Supreme Court ruling overturning Roe v. Wade (1973), Justice Clarence Thomas joined the majority opinion. But he also wrote a separate concurrence arguing that the logic behind today's ruling should also apply to previous Supreme Court decisions on same-sex marriage, sodomy, and the right to access contraceptives.
Today's majority opinion in Dobbs v. Jackson Women's Health Organization ruled that Roe v. Wade was wrongly decided and that the Constitution does not guarantee a right to an abortion. In the opinion, Justice Samuel Alito determined that the right to an abortion is not "rooted in the Nation's history and tradition."
Alito's decision, however, very clearly explains that he's not trying to claim that any right that isn't "rooted in the Nation's history" is potentially subject to being tossed out. This language was in the leaked draft opinion as well. He holds that part of what makes abortion different is that it involves the "destruction of a 'potential life.'" The decision states outright:
And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
He specifically name-checks Obergefell v. Hodges (the 2014 ruling that mandated gay marriage recognition) and Griswold v. Connecticut (the 1965 ruling that stopped states from criminalizing contraception) as precedents he is not attempting to challenge with the Dobbs decision. He later reiterates that those decisions "are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life.'"
But Thomas wrote separately to say the court should reconsider those cases too. While abortion may be a unique issue involving human life, Thomas sees these other precedents as errors of the court because he fundamentally disagrees that the concept of "substantive due process"—that "due process" protects not just procedures but fundamental rights—has a constitutional foundation. Thomas has a history of arguing that the Due Process Clause does not actually guarantee rights but that proper procedures are followed.
Here, because the majority decision declined to address this issue, Thomas wrote separately to encourage them to:
For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is "demonstrably erroneous," Ramos v. Louisiana…(THOMAS, J., concurring in judgment)…we have a duty to "correct the error" established in those precedents, Gamble v. United States…(2019) (THOMAS, J., concurring)….After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
I have already started seeing tweets isolating Thomas' concurrence to indicate that this is a warning that the conservative Supreme Court justices are going to start attacking other precedents.
This response to Thomas' concurrence ignores that no other justice signed on to this concurrence, not even Alito. Even though six justices agreed that Roe v. Wade was wrongly decided, they were not willing to sign on to Thomas' argument that these other cases were also wrongly decided or that substantive due process is not supported by the Constitution.
In fact, the two concurrences he references above are also cases in which Thomas wrote that the Court was misinterpreting laws and the Constitution. And in each case, no other justice joined him.
Thomas' entire concurrence here is essentially him saying that substantive due process is nonsense and that the courts should go back and revisit all these previous precedents. Thomas has a history of writing these types of concurrences, but he also has a history of being completely on his own here. And that's exactly what happened today. It's getting much more attention because this is such a massive, important ruling, but it's not unusual for Thomas to do this.
It is, however, important that Thomas and the three dissenting justices, Stephen Breyer (who wrote the dissent), Elena Kagan, and Sonia Sotomayor, are actually on the same page: Despite what Alito might write in the majority opinion, the logic of Dobbs can ultimately in a future court result in what Thomas would like to see. Justice Breyer writes:
Consider, as our last word on this issue, contraception. The Constitution, of course, does not mention that word. And there is no historical right to contraception, of the kind the majority insists on. To the contrary, the American legal landscape in the decades after the Civil War was littered with bans on the sale of contraceptive devices. So again, there seem to be two choices. See supra, at 5, 26–27. If the majority is serious about its historical approach, then Griswold and its progeny are in the line of fire too. Or if it is not serious, then … what is the basis of today's decision? If we had to guess, we suspect the prospects of this Court approving bans on contraception are low. But once again, the future significance of today's opinion will be decided in the future. At the least, today's opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures.
Justices have often rejected Thomas' position against substantive due process, but that doesn't mean that the logic of the majority's opinion today can't be used against these other precedents. But the current makeup of the court, despite leaning heavily conservative, suggests that it will not.
Thomas is certainly inviting challenges to these precedents, and that shouldn't be ignored. It's also important to understand the logic and legal theory behind Thomas' position, that other conservative judges don't necessarily agree with him, and that potential challenges to these other precedents aren't just a matter of which political ideology is ascendant on the Court at any given time.
The post Clarence Thomas Calls To 'Reconsider' Gay Marriage, Sodomy Rulings appeared first on Reason.com.
]]>We've got 10 days left in Pride Month. That it takes place this year during an election cycle that has been heavily influenced by culture wars putting gay and particularly trans issues front and center has inexplicably brought back into politics some pretty old ideas about LGBT issues.
Over the weekend, the Republican Party of Texas voted to approve language in their 2022 platform declaring that "homosexuality is an abnormal lifestyle choice" and opposing "special legal entitlements or creation of special status for homosexual behavior." It further states they "oppose all efforts to validate transgender identity" and calls for the legal prohibition of medical treatments like puberty blockers, hormones, and surgery for any trans person under the age of 21.
There is a lot of stuff in the whole platform (and not all of it is bad). The addition of this LGBT component is notable for what a weird throwback it is, much of it reminiscent of how conservatives used to talk about gay marriage back in the 1990s.
State political platforms are also somewhat easy targets to draw out culture war tensions. They are mostly relevant to party primaries in states and may indicate the mood of influential party participants but not the actual desires of party voters. Not only do an overwhelming majority of Americans support legal recognition of same-sex marriage, but as of 2021, a majority of Republicans (55 percent) also support it. Gallup polling shows support for gay and trans rights improving steadily over the last two decades.
Nevertheless, we have seen many examples this month that the "woke left" aren't the only ones versed in virtue signaling. Drag brunch is not going to be the downfall of America, but saying so is certainly a way of drawing media attention and playing to a particular group of conservative voters, freedom and liberty be damned. There are a lot of complex reasons (and really bad government policies) behind our inflation and supply chain crisis, our actual domestic problems. RuPaul is not one of those reasons.
Last week President Joe Biden signed a lengthy executive order that shows his willingness to jump into this culture war on behalf of the Democratic Party. On June 15, he signed an "Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals" that pushes the Secretary of Health and Humans Services to seek out ways to intervene against "harmful State and local laws" that target and restrict the access of LGBT citizens to medical care and treatment.
This is clearly a response to states passing laws that attempt to ban or criminalize medical treatment for trans teens and children. Similarly, the executive order calls for the Secretary of Education to attempt to intervene against any state laws they deem "harmful" to LGBT students and to "develop and release sample policies for supporting LGBTQI+ students' well-being and academic success in schools and educational institutions."
Incidentally, Biden is the first president to use the term "queer" in his executive orders, but it's not defined in the order. The term is generally not used in anti-discrimination laws precisely because it has become this vague umbrella term to the point that heterosexual people claim to be "queer." Its inclusion in the order is its own performative moment for the administration.
To the extent that new state laws fueled by culture warring might violate the rights of LGBT citizens and run counter to federal law or Supreme Court rulings makes an executive order justifiable, though probably not necessary. Xavier Becerra, current Secretary of Health and Humans Services, doesn't need any encouragement to go around filing lawsuits. That's what he's known for.
But that's not all the executive order does. It calls for the feds to wade into the political fight over conversion therapy (the controversial theory debunked by medical experts that homosexuality and trans identity can be "cured") and asks the Federal Trade Commission to determine whether the practice is fraudulent and requires consumer warnings.
Paragraph after paragraph calls for more federal research and working groups on LGBT health issues and whether LGBT people are more likely to have to deal with homelessness, have problems with accessing social services, determine whether older LGBT folks have issues with long-term care, et cetera. A lot of the executive order is a wish list that affirms an LGBT-friendly and expansive bureaucratic state.
And so the culture war politics involved here are a partisan fight over what will be forbidden and what will be mandated, and being left alone is just not an option on the table. Drag queens and trans athletes have to be presented as some massive cultural threat on one side, while LGBT people (and "queer" people, whoever they might be if not LGBT people) as a whole need to be collectively classified as hapless children to justify a set of unneeded government interventions by the other.
The post As Pride Month Nears End, LGBT Political Culture Warring Escalates appeared first on Reason.com.
]]>The strangest thing about Lightyear is the initial premise. This isn't just a sci-fi spinoff for the toy character whose presence disrupted the social life of a little boy's toy collection in the first Toy Story oh-so-many decades ago. Instead, it's presented as the movie that Andy, the little boy from the Toy Story films, watched in 1995 that made him want a Buzz Lightyear toy in the first place. In a title card that plays at the start of the film, the movie specifies that this is Andy's favorite film in 1995.
There are two problems with this. The first is that it doesn't play anything like a movie from the 1990s. It's jokey and hectically paced, with quippy supporting characters and some pro forma lesson-learning about what it means to grow up and accept failure. And it includes some ingrained cultural assumptions that, while handled gracefully, would almost certainly not have appeared in a popular 1990s kid-friendly movie, particularly when it comes to same-sex marriage.
So while it's better than many movies targeted at kids, it's lower-tier by Pixar's lofty standards. It's a movie that settles for kid-friendly competence rather than reaching for the stars.
But that brings me to the next problem with the premise: This is a kids movie. Yes, it's a sci-fi-tinged picture, with some robot action and an ostensibly dangerous planet, but the tone is light and snarky, without any real sense of danger or darkness. Kids might like this sort of thing, especially younger ones. But it's hard to believe that a boy like Andy would pick this, of all movies, as his favorite film, even for a brief period of time.
It's too generic, too cute, and most of all, it doesn't feel in any way like a gateway into adult ideas and feelings. And kids like Andy—a creative dreamer who'd had some hard times in his life and partially retreated into a fantasy world in which his toys come to life and have a complex friend-society—tend to gravitate toward movies that feel like introductions to something beyond their own childhood experiences.
I distinctly remember an elementary school exercise from my own childhood, which would have taken place in the early 1990s, in which my classmates and I were asked to name our favorite movies. Some of the top choices were R-rated fare like Aliens and Terminator 2. Even the less-aggressive picks were movies like The Wizard of Oz, a child's fable with a dark undercurrent.
Yet Lightyear is a kids film that only very occasionally treads into more adult thematic territory, with Buzz Lightyear going on a series of space missions that involve time-dilation, so that every time he leaves, his community ages four years, while he ages just a few minutes. This leads to one of the movie's best sequences—a montage depicting the passage of many years on the ground, while Buzz stays the same age.
Among other things, that sequence delicately portrays a marriage between two women, including a brief, loving kiss at a 40th-anniversary ceremony that has produced some controversy, including bans in multiple countries. It's warm and touching, but it's also another anachronism. Unless Andy lives in a universe with a substantially different social/political trajectory than ours, it's hard to believe it would have appeared in a kid-friendly space epic in 1995, during Bill Clinton's presidency, when less than 30 percent of Americans supported same-sex marriage. Today, of course, support for same-sex marriage is very broad, if not quite universal, but that just reinforces the awkwardness of the setup: In no way does Lightyear feel like a movie from 1995.
Rather, it feels like a modern Pixar movie, with action, heart, and humor aimed squarely at the squirmy-kid set, and an emphasis on frenetic back-and-forths and obvious sight gags. Pixar's movies have always had elements of calamitous comedy to them, but they've also tended to be smarter, slower, and more reserved than other kid-friendly animated films. Studio executives at Disney, which was overseeing Pixar's debut film, reportedly pushed for the original Toy Story to be edgier; part of its charm was its relative quietness, which allowed some real emotion to shine through.
There's no such depth of feeling in Lightyear, which is disappointing given Pixar's history of infusing seemingly kid-friendly products with moments of real adult feeling and darkness lurking at the edges. Pixar could have taken this premise to make a movie that actually said something about the 1990s, rather than dutifully reflecting the current moment, but it chose not to.
The post Pixar's <i>Lightyear</i> Is an Underwhelming Anachronism appeared first on Reason.com.
]]>The debate over whether businesses can be forced to provide goods and services for gay weddings will return to the Supreme Court in an upcoming case.
In February, the Supreme Court agreed to hear 303 Creative v. Elenis. Lorie Smith owns and runs 303 Creative, a web design firm based in Colorado. Smith planned to design and host sites for weddings, but she has religious objections to same-sex marriage and does not want to be forced to design and host sites for LGBT couples. That puts her at odds with Colorado's Anti-Discrimination Act, which prohibits "places of public accommodation" from discriminating against LGBT customers.
In her petition to the Supreme Court, Smith says she is not refusing to serve LGBT customers. Rather, she "cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage."
Historically, the Supreme Court has limited the government's ability to compel a private business to transmit a message it finds objectionable. A book publisher, T-shirt printer, or social media platform generally cannot be forced to print or host messages that support or oppose any particular cause or policy.
Smith argues that the same logic should apply in her case. But the U.S. Court of Appeals for the 10th Circuit ruled that Colorado could legally require her to design and host sites for gay weddings and prohibit her from putting a message on her website stating that her religious beliefs prevent her from supporting gay marriage with her services.
The Supreme Court previously considered Colorado's anti-discrimination law in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 case involving a Lakewood bakery whose owner, Jack Phillips, refused to bake a wedding cake for a gay couple. In a 7–2 ruling, the Court blocked enforcement of a cease-and-desist order against Phillips. But rather than decide whether a bakery could be compelled to make a cake for a gay wedding, the Court determined that Colorado's law had not been neutrally applied because the Colorado Civil Rights Commission demonstrated "clear and impermissible hostility" to Phillips' religious views.
If that ruling seemed like a dodge, the Court now appears ready to tangle with the underlying issue in 303 Creative v. Elenis: "whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."
The post Gay Weddings Return to The Supreme Court appeared first on Reason.com.
]]>During the Cold War in America, about the two worst things you could be accused of was being a communist or a homosexual. In fact, people like FBI Director J. Edgar Hoover routinely conflated the two, asserting that the Soviet Union blackmailed gay diplomats, politicians, and citizens into betraying the United States. Despite no evidence of that, the federal government banned gay and lesbian employees, leading to all sorts of discriminatory and stupid behavior on the part of government officials and private actors.
In the new book Secret City: The Hidden History of Gay Washington, James Kirchick explores how panic and hysteria over gays informed everything from the Alger Hiss trial to Lyndon Johnson's 1964 presidential campaign to Ronald Reagan's first run for governor of California and his two terms in the White House.
Kirchick, a columnist at Tablet and a writer at large for Air Mail, also talks to me about a libertarian angle to all this too besides the government discriminating against people due to sexual orientation: Gay rights activists such as Randy Shilts, whose And The Band Played On was the first big history of the AIDS crisis, and Harvey Milk, the openly gay politician who was assassinated after being elected to the San Francisco Board of Supervisors, started out as ardent Barry Goldwater supporters. So did Young Americans for Freedom activist and former Rep. Robert Bauman (R–Md.), who lost his 1980 re-election bid after getting caught soliciting sex from a 16-year-old male prostitute.
"For gay men of this particular generation, of this particular political disposition, they were inclined towards libertarianism," Kirchick tells me. "They were inclined towards small government. Get off my back. That's what Barry Goldwater was was advertising in 1964."
We also talk about people like Frank Kameny, a federal employee who sued the government after getting fired simply for being gay, and how the gay rights movement is a powerful model for social and political change based on individual rights.
The post James Kirchick: How Homophobia Warped the Cold War appeared first on Reason.com.
]]>What Scalia would have done about Griswold was always a far more theoretical question. States were not falling over each other to ban condoms, IUDs, or the pill. The penumbras-and-emanations test was widely mocked, but the 1987 Supreme Court hearings of Robert Bork had demonstrated that the result in Griswold could not be seriously questioned by a nominee.
Now that the reversal of Roe appears imminent, the question of what the Supreme Court will do next arises once more. Attention is focused mostly on the precedents involving gay rights, like Obergefell v. Hodges (2015), the same-sex marriage decision, and Lawrence v. Texas (2003), which recognized a right of private adult sexual intimacy. These involve matters, like abortion, not specified in the text of the Constitution.
While there are many such "unenumerated" constitutional rights–like those to rear and educate a child, to live with relatives, to resist forced sterilization and medical treatment, and to marry a person of a different race–doubts expressed about their continued vitality seem designed mainly to save Roe by warning of the theoretical consequences of overruling it. There is no significant constituency or movement clamoring to suppress these rights and there is no serious prospect the Court will do so.
On its face, the draft majority opinion in Dobbs disclaims any intent to undermine existing unenumerated rights beyond the abortion precedents of Roe and Planned Parenthood v. Casey (1992).
The Solicitor General warns that overruling [Roe and Casey] would "threaten the Court's precedents holding that the Due Process Clause protects other rights." [Listing Obergefell, Lawrence, and Griswold]. That is not correct… And to ensure our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion.
Draft op. at 62. Many have fretted that the author of the Dobbs draft, Justice Alito, is not to be trusted because he dissented strongly in Obergefell. But Alito is not writing for himself here. Indeed, this passage seems to have been written with an eye on keeping the majority from splintering into discordant concurrences. A harder and purer opinion might not get the signatures of Justices Barrett, Kavanaugh, or Gorsuch. This consideration should ease genuine concerns about aggressive use of the decision immediately to undermine rights to same-sex marriage and private sexual conduct.
Moreover, to justify cabining its decision in this way, the draft opinion points to what it terms a "sharp" and "critical moral distinction" between abortion and all of the other unenumerated rights: abortion "destroys" a "potential life." Draft op. at 32. Even very strong opponents of same-sex marriage grasp this distinction. With a notable exception, few of the amici siding with Mississippi called Obergefell or Lawrence into question.
The possible risks to Obergefell and Lawrence do not really come from overruling Roe, which is why Dobbs does not present an immediate or direct threat to them as precedents. Instead, the long-term perils emanate from two other sources. The first and deepest is the determined resistance of a certain subset of religious conservatives. Unlike with abortion, however, the vast majority of Americans have moved on.
The second risk is what we might come to call the Dobbsian mode of substantive constitutional-rights analysis (which is really a redux of Washington v. Glucksberg (1997)). Tell us, the draft opinion instructs, where are these specific rights in the text? Don't give us talk of "liberty," for that means too many things to too many people. If you can't do that, where are affirmative protections for such specific rights in the granular history and traditions of the nation before the dawn of the 21st century? In other words, the draft opinion offers very little in principle that secures a right to gay marriage or homosexual sex. Gone are paeans to autonomy, dignity, and the mystery of the universe. That sort of judicial rhetoric will go the way of penumbras and emanations. In the Dobbsian world, "new" rights don't stand a chance.
On the other hand, for those who support constitutional protection of same-sex marriage, the Dobbs draft salvages some important elements of stare decisis analysis. It would allow a future Court to write an opinion concluding reluctantly that, even if it was wrong (provided it was not "egregiously wrong"), Obergefell must be preserved because so many gay couples and the families they lead have concretely depended upon it for long-term planning. And Lawrence must be preserved because, if they can marry, same-sex couples must also be allowed to have sex.
The post Will Dobbs Be a Ticket Good for this Right Only? appeared first on Reason.com.
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Politico has published an insta-symposium where various legal commentators discuss the issue of whether Justice Samuel Alito's draft Supreme Court opinion overruling Roe v. Wade would also imperil other prominent precedents protecting individual rights, particularly those involving contraception, same-sex marriage, and anti-sodomy laws.
Contributors include co-blogger Josh Blackman, Prof. Mary Ann Case (University of Chicago), Prof. Mary Zeigler (Harvard), former US Attorney General Alberto Gonzales, and others. The contributions are divided between two different URLs. See here and here.
There is a wide range of views among the participants. Here is my contribution:
While such concerns [about the fate of same-sex marriage, contraception, and anti-sodomy laws] are understandable, they are overblown.
Alito's draft opinion relies on precedent holding that the Due Process Clause of the Fourteenth Amendment only protects substantive rights that are 'deeply rooted' in history. It can be argued that these other rights also lack 'deep' roots. But Alito also emphasizes that Roe is "fundamentally different" from precedents involving "intimate sexual relations, contraception, and marriage," because abortion arguably involves destruction of innocent "fetal life." This crucial difference is the main reason why Roe continues to draw vastly more opposition than these other rulings.
In addition, decisions protecting same-sex marriage and intimate sexual relations need not rely on the Due Process Clause alone. Laws discriminating against same-sex relationships also violate the Equal Protection Clause because they discriminate on the basis of sex. Just two years ago, the Supreme Court ruled that discrimination against gays and lesbians qualifies as sex discrimination under the Civil Rights Act of 1964, in a decision written by conservative Justice Neil Gorsuch, and joined by Chief Justice John Roberts. Much the same reasoning applies in the constitutional context.
Furthermore, history shows that major Supreme Court decisions protecting rights only get reversed if there is a powerful movement seeking that outcome, such as the pro-life movement in the case of Roe. By contrast, there is no longer a strong movement seeking abolition of same-sex marriage (conservative politicians rarely advocate abolition anymore, perhaps because same-sex marriage now has overwhelming public support), and even less appetite for banning contraception (which is supported by some 90% of Americans), or bringing back anti-sodomy laws.
A ruling reversing Roe v. Wade might make judicial recognition of new 'substantive due process' rights less likely. But it is unlikely to threaten major existing rights that enjoy far broader support than abortion. [highlighting added by Politico].
Interestingly, Josh Blackman reaches much the same conclusion for some of the same reasons. It's a comparatively rare point of agreement between us!
The post Politico Symposium on Broader Implications of the Leaked Supreme Court Opinion Overruling Roe v. Wade appeared first on Reason.com.
]]>The belief that Roe v. Wade (1973) is set to be overturned, based on a leak of Justice Samuel Alito's draft opinion of Dobbs v. Jackson Women's Health Organization Monday, is leading to questions about whether other well-known court precedents are at stake, particularly on LGBT issues. Will a heavily conservative Supreme Court rethink Obergefell v. Hodges, the 2015 decision that made same-sex marriage recognition the law of the land? Would a conservative court go so far as to toss out Lawrence v. Texas, the 2003 decision that overruled state-level sodomy laws and essentially recognized a right to sexual autonomy and privacy among consenting adults?
When I say "leading to questions" here, I actually mean "somewhat panicky quick-hit analyses." To start with some clarity, while Alito's draft is authentic, we do not yet know whether other conservative justices have signed on to support this version.
Who agrees with Alito's decision may matter seeing as the text of Alito's argument leans heavily on a claim that Roe v. Wade is a mistaken ruling. He states that America did not (until this decision) have a history of treating abortion as a right; it had frequently criminalized it throughout history. And while the Supreme Court does set precedents that acknowledge unenumerated rights the courts had not previously recognized, Alito argues that such rights have a long history of being "deeply rooted in this Nation's history and tradition." Thus, abortion does not fall into this category, according to Alito's opinion.
Neither does gay marriage or recognition of gay rights, so it's natural to think that Alito might want to extend this argument further. Alito, after all, dissented in the Obergefell case. He references Obergefell at one point in the opinion and adds, "These attempts to justify abortion through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much.… Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.… None of these rights has any claim to being deeply rooted in history."
It may be logical to believe that Alito is saying that gay marriage is also potentially in danger because it cannot claim to be "deeply rooted in history." There are several fearful analysis pieces today suggesting LGBT-friendly Supreme Court decisions are threatened.
I think the fears are somewhat misguided. In the context of the opinion, Alito is noting that those who are defending abortion rights are doing so by turning to more recent precedents because older precedents prior to Roe v. Wade are not helping make their case. That's the context of the Obergefell reference. And he notes that abortion is clearly different from these other rulings because "Abortion destroys what those decisions call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'"
Furthermore, his opinion leans heavily on the fact that Roe v. Wade has failed to actually resolve conflict about abortion, and citizenry, lawmakers, and the courts themselves remain polarized and divided about abortion regulation. The same is not true for gay marriage or LGBT issues in general, current culture-warring notwithstanding. Americans now support gay marriage recognition, while abortion remains as polarizing as ever.
While Alito may not agree with previous LGBT rulings from the court, this opinion is careful not to question their validity. That justices like Neil Gorsuch and Brett Kavanaugh reportedly are part of the majority here may explain some of the hedging. In 2020, Gorsuch wrote the majority decision in Bostock v. Clayton, which extended federal anti-discrimination protections to gay and trans workers. Gorsuch is a textualist, but most certainly not a traditionalist, and his decision was based on the reasoning that discriminating on the basis of sexual orientation was a version of discriminating on the basis of sex. He ended up on the opposite side of Alito, who had dissented based on his position that Congress did not mean to include sexual orientation and gender identity when they passed the Civil Rights Act of 1964.
As for Kavanaugh, he also dissented from the Bostock decision, but he wrote his own dissent and specifically did not join Alito's. Kavanaugh didn't embrace Alito's traditional conservatism but instead believed that the majority's textual reading of sex discrimination was wrong and that common legal usage of the word "sex" treated sex discrimination and sexual orientation as separate categories. He and Alito agreed that it was up to Congress to decide whether to add sexual orientation and gender identity protections to civil rights law, but the reasoning was different. Alito was looking at historical attitudes, while Kavanaugh was looking at how the law currently used the terms.
All of this is to say there's still very little evidence that Gorsuch, at least, is going to want to reverse course in just two years and suddenly turn hostile toward gay rights. Kavanaugh's break from Alito even when dissenting also suggests he doesn't look at gay issues the same way Alito does. And none of that is even getting into the kind of legal and contractual problems that would take place should the Supreme Court suddenly decide that states can simply refuse to acknowledge more than half a million same-sex marriages.
We are in the midst of a very obvious culture war conservative backlash on LGBT issues, and it's worth taking note and pushing back on its more oppressive policy prescriptions. But conservative justices are not the same as conservative politicians. It does not appear that there are the votes to roll back gay-friendly precedents, and it seems clear on close reading that Alito knows it.
The post Will a Conservative Supreme Court Turn on Gay Rights After Dismantling <em>Roe</em>? Be a Skeptic appeared first on Reason.com.
]]>Support lower among Republicans, black Americans, white evangelicals. After dominating the culture war and state legal battles throughout the aughts and the early 2010s, the issue of same-sex marriage's legality was suddenly put to rest by the Supreme Court in 2015. No longer a politically useful rallying point, it quickly faded from mainstream public view. So it's easy to imagine that beyond some hyper-religious communities, Americans today don't have a problem with same-sex marriage. But a new survey from the Public Religion Research Institute (PRRI) is a sobering reminder that's not so.
Some 30 percent of people surveyed by PRRI still think that gay and lesbian couples shouldn't be allowed to marry. Among Republicans only, this figure jumps to 50 percent. Yikes.
The good news is that 68 percent of those surveyed support same-sex marriage, and this figure has been steadily and quickly rising. In 2014, only 54 percent supported the right of same-sex couples to legally marry. This jumped to 58 percent in 2016, 61 percent in 2017, and 67 percent in 2020. Support among Republicans is up from 35 percent in 2014.
Support among older Americans has also grown, with almost 60 percent of those 65 and up saying same-sex marriage should be legal. Among those aged 50–64, support was at 64 percent, jumping to 72 percent for those aged 30–49 and 76 percent for those aged 18–29.
The figures come from the PRRI's American Values Atlas, a series of annual surveys on public attitudes. The 2021 sample included a total of 22,612 adults.
"Majorities of Americans of almost every major racial and ethnic group support same-sex marriage," notes the PRRI.
Support was lowest among black Americans (59 percent). Sixty-nine percent of white Americans support same-sex marriage.
Majorities of many major religious groups are also supportive. This includes Jewish Americans (83 percent), white Catholics (74 percent) and Catholics of color (80 percent), white mainline Protestants (76 percent), black Protestants (55 percent), Orthodox Christians (58 percent), Hindus (86 percent), Buddhists (81 percent), and Muslims (55 percent).
The only major religious groups without majority support were Latter-day Saints (46 percent), white evangelical Protestants (35 percent), and Jehovah's Witnesses (22 percent).
The PRRI survey also includes findings on anti-discrimination laws pertaining to sexuality and gender and religiously based service refusals. You can find the full results here.
Survey respondents were more likely to support nondiscrimination laws than to support same-sex marriage:
Nearly eight in ten Americans (79%) favor laws that would protect gay, lesbian, bisexual, and transgender people against discrimination in jobs, public accommodations, and housing, including 41% who strongly support them. One in five Americans (20%) oppose such laws, including just seven percent who strongly oppose them. Support for these protections has increased over the past few years, with around seven in ten Americans favoring nondiscrimination provisions in 2015 (71%), 2017 (70%), 2018 (69%), and 2019 (72%), up to 76% in 2020.
Nearly two-thirds opposed "religiously based refusals to serve gay and lesbian people." The survey did not drill deeper to see if this changed when a refusal was related to a same-sex marriage ceremony (as the cases that have been challenged in court have been) as opposed to just outright refusing to serve LGBTQ customers.
Neuroscience studies are largely unreliable, according to new research. "The results of most studies are unreliable because they involved too few participants," reports the Washington University School of Medicine in St. Louis, citing new research published on March 16 in the journal Nature.
Using publicly available data sets – involving a total of nearly 50,000 participants – the researchers analyzed a range of sample sizes and found that brainwide association studies need thousands of individuals to achieve higher reproducibility. Typical brainwide association studies enroll just a couple dozen people.
Such so-called underpowered studies are susceptible to uncovering strong but spurious associations by chance while missing real but weaker associations. Routinely underpowered brainwide association studies result in a glut of astonishingly strong yet irreproducible findings that slow progress toward understanding how the brain works, the researchers said.
The study was spurred by two researchers who couldn't replicate their own relatively large (1,000 kids) study. The median sample size in published neuroscience papers is 25.
"We were interested in finding out how cognitive ability is represented in the brain," said Scott Marek, a psychiatry instructor at Washington University. "We ran our analysis on a sample of 1,000 kids and found a significant correlation and were like, 'Great!' But then we thought, 'Can we reproduce this in another thousand kids?' And it turned out we couldn't. It just blew me away because a sample of a thousand should have been plenty big enough. We were scratching our heads, wondering what was going on."
So Marek and a team of other researchers from Washington University and the Masonic Institute for the Developing Brain at the University of Minnesota started looking at neuroimaging datasets and attempting to replicate results.
"Our findings reflect a systemic, structural problem with studies that are designed to find correlations between two complex things, such as the brain and behavior," said senior author Nico Dosenbach, an associate professor of neurology at Washington University. "It's not a problem with any individual researcher or study. It's not even unique to neuroimaging. The field of genomics discovered a similar problem about a decade ago with genomic data and took steps to address it."
Democrats seek greater powers for antitrust enforcers and an end to the consumer welfare standard. New legislation from Sen. Elizabeth Warren (D–Mass.) and Rep. Mondaire Jones (D–N.Y.) would let antitrust enforcers with the Federal Trade Commission and the Department of Justice break up companies and block mergers without a court order. The terribly illiberal bill—dubbed the Prohibiting Anticompetitive Mergers Act—would let the DOJ and the FTC retroactively reject mergers that were already approved if they "materially harmed" competition or led to a market share above 50 percent. The bill effectively does away with the prevailing consumer welfare standard for antitrust enforcement, which relies on considering whether business antics actually harm consumers. The nonsensical replacement standard would consider whether activity harms competitors—a.k.a. exactly what business is meant to do.
The Prohibiting Anticompetitive Mergers Act would also automatically block mergers valued at more than $5 billion, those resulting in highly concentrated markets, or those resulting in market shares above a certain threshold.
"The proposal is backed by a coalition of progressives in both chambers, including Sen. Bernie Sanders (I-Vt.) and Alexandria Ocasio Cortez (D-N.Y.), and follows a series of proposals introduced in Congress targeting the market power of tech giants," reports The Hill. But the bill does not yet have any Republican co-sponsors.
You asked and it's back!
Servant of the People is once again available on Netflix in The US. The 2015 satirical comedy series stars Volodymyr Zelenskyy playing a teacher who unexpectedly becomes President after a video of him complaining about corruption suddenly goes viral. pic.twitter.com/Pp9f48jutF
— Netflix (@netflix) March 16, 2022
• In the three weeks since Russia invaded Ukraine, at least 7,000 Russian soldiers have been killed, per a U.S. intelligence estimate.
• The Federal Reserve has approved an interest rate hike—the first in three years—of a quarter percentage point. The Federal Open Market Committee "anticipates that ongoing increases" will be needed, it said in a Wednesday statement.
• Why is the U.S. so slow in processing Afghan refugees?
Thousands of Afghans have been waiting for more six months at a tightly secured camp in the U.A.E. hoping to be allowed into the U.S. With no progress on their cases, some are opting to return to dangers in Afghanistan to support families left behind https://t.co/uvyTJ2pFYS
— Catherine Rampell (@crampell) March 17, 2022
• Mississippi has passed a ban on critical race theory in education:
NEW: Gov. Tate Reeves signed a so-called "CRT ban" into law today, claiming that critical race theory serves only to "indoctrinate" children and "humiliate" white people.
But he admitted last June that CRT is not even taught in any Mississippi classrooms.https://t.co/C1igUMygPP
— Ashton Pittman ???? (@ashtonpittman) March 15, 2022
The post 30 Percent of Americans Still Oppose Same-Sex Marriage appeared first on Reason.com.
]]>The Supreme Court will finally be tackling the question of whether a public accommodation law can compel a business owner to produce messages that violate their personal beliefs as part of anti-discrimination protections.
Today the Supreme Court agreed to hear 303 Creative LLC v. Elenis. Lorie Smith owns and runs 303 Creative, a graphic website design firm based in Colorado. Smith planned to design and host sites for weddings, but she has religious objections to same-sex marriage and does not want to be forced to design and host sites for such weddings. This puts her at odds with Colorado's Anti-Discrimination Act, which prohibits discrimination against LGBT customers.
Smith counters that she isn't refusing to serve LGBT customers, but she "cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage," according to her petition to the Supreme Court. The United States Court of Appeals for the Tenth Circuit has taken the side of the Colorado Civil Rights Division and ruled that the law was being neutrally applied and not unconstitutionally vague or overbroad. Colorado could legally require Smith to design and host sites for gay weddings and could furthermore prohibit her from putting a message on her website stating that she would not due to her religious beliefs.
This case flows out of the Supreme Court's 7-2 ruling Masterpiece Cakeshop v. Colorado Civil Rights Commission. It's even from the same state. The Masterpiece Cakeshop case revolved around whether a baker could be forced to make a wedding cake for a gay couple. The Court ruled in the bakery's favor but actually punted on the central free speech question. The Court ruled that the commission had not neutrally applied the law, and commissioners had made statements indicating they had a bias against Masterpiece Cakeshop owner Jack Phillips' Christian beliefs.
Similarly, in a more recent case, Fulton v. Philadelphia, about whether a Catholic adoption agency could discriminate against gay couples, the Court dodged again. It ruled in favor of the adoption agency—not for religious freedom reasons, but because the law gave city officials discretion to grant exemptions, and therefore, it was not a neutrally applied law.
While the bakery and the adoption agency won these two cases, no precedent was established. The extent that the services of a baker, florist, photographer, and others were protected by the First Amendment and whether public accommodation laws could force businesses to provide their services for ceremonies over which they held moral objections remain legally muddled. Justice Neil Gorsuch noted in his opinion in the Fulton case, "these cases will keep coming until the Court musters the fortitude to supply an answer."
Indeed, several businesses have raised further legal challenges. Now that the Supreme Court has taken up 303 Creative LLC. V. Elenis, we may finally get the precedent people are seeking. Smith is being represented by Alliance Defending Freedom, which also represented Phillips in the Masterpiece Cakeshop case.
The Cato Institute, joined by UCLA law professor Eugene Volokh (of The Volokh Conspiracy) and Southern Methodist University Dedman School of Law professor Dale Carpenter (also a contributor to The Volokh Conspiracy), have submitted an amicus curiae brief supporting Smith, urging the Court to find that Colorado's anti-discrimination laws violate her First Amendment rights. The brief notes:
As the Tenth Circuit acknowledged, Smith's creation of wedding sites is pure speech. Forcing her to create websites to which she objects is a speech compulsion. The law cannot force her to speak in this way unless the state can satisfy strict judicial scrutiny.
Declaring that a unique and customized product is irreplaceable and that therefore a requirement to provide it in the commercial marketplace is narrowly tailored, as the Tenth Circuit did, is to end free-speech protection for providers of expressive products. It erodes the ability of courts to invalidate applications of speech regulations where part of the government's goal is to punish unpopular ideas rather than solely to protect consumers' access to products.
That cannot be right as a matter of constitutional law. While providers of commercial services are certainly subject to state anti-discrimination obligations, their freedom of speech must remain protected.
In the orders today that the Supreme Court will hear the case, the Court narrowed down the questions in the case to a single issue: "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."
Do not expect some sort of broad ruling that would radically rethink anti-discrimination laws. Just two years ago Justice Gorsuch and Chief Justice John Roberts joined the Court's more liberal justices in deciding that the Civil Rights Act of 1964's anti-discrimination protections included gay and trans people. This is specifically and narrowly about the limits of mandating commercial speech that compromises the values of business owners.
The post Can a Web Designer Be Forced To Make Gay Wedding Pages? The Supreme Court Will Decide appeared first on Reason.com.
]]>A federal judge has rejected a lawsuit from a Christian photographer seeking to overturn a New York law that would require her to photograph gay weddings. Emilee Carpenter said the law violates her First and 14th Amendment rights. But Judge Frank P. Geraci Jr. said the law simply seeks "to guarantee that businesses purporting to serve the public truly do serve the public."
The post Brickbat: Free to Be appeared first on Reason.com.
]]>The main exception is the amicus brief filed on behalf of Texas Right to Life (TRL), written by Jonathan Mitchell and Adam Mortara. Mitchell was "the conceptual force behind" SB8, the Texas "Heartbeat Bill," which effectively bans abortions after six weeks of pregnancy and authorizes "any person" to seek an injunction and award of at least $10,000 against those who assist women obtaining such abortions. Mitchell was a clerk for the late Justice Scalia and is a former Solicitor General of Texas. Mortara was a clerk for Justice Thomas and is a lead lawyer in the challenge against Harvard's affirmative action program, seeking to have the Court overrule its landmark 2003 decision upholding race-conscious admissions policies. Both have sterling credentials within the conservative legal movement. Their brief will be closely read in the Justices' chambers.
The TRL brief maintains that the constitutional right to abortion declared in Roe and reaffirmed in Casey has no basis in constitutional text or history and that stare decisis should not prevent them from being overruled. So far, so expected.
But there are many other decisions that similarly lack any constitutional grounding, the brief says. Among these is Loving v. Virginia, which struck down a state anti-miscegenation law in part on substantive due process grounds.
Supporters of Roe have correctly observed that this Court has recognized and enforced other supposed constitutional "rights" that have no basis in constitutional text or historical practice. The Casey plurality opinion, for example, noted that right [sic] to interracial marriage from Loving v. Virginia, 388 U.S. 1, 12 (1967), has no textual or historical pedigree, much like the right to abortion that this Court invented in Roe v. Wade. . . To be sure, the rationale of Loving purported to invoke the doctrine of substantive due process and a supposed constitutional "freedom to marry," which is nowhere to be found in the language of the Constitution. (pp. 22-23)
The conclusion that the constitutional right to marry is baseless follows from a larger critique of substantive due process common within conservative legal circles, including among some Justices. But few publicly acknowledge the full implications of the argument for the unenumerated substantive-due-process right to marry, much less specifically for the right to marry a person of a different race. Give Mitchell and Mortara credit for candor.
Still, a Supreme Court advocate cannot be heard to question the outcome in Loving. So while rejecting the substantive due process holding, the TRL brief attempts to reach the same result by asserting that "the Civil Rights Act of 1866 provides all the authority needed to set aside a state's anti-miscegenation law." That's because the 1866 Act prohibits racial discrimination under state law in making and enforcing contracts and, the authors assert, marriage is a contract subject to this statute. "So Loving remains good law regardless of whether the Constitution's text or historical practice can support a right to interracial marriage," the brief concludes.
This analysis is curious in several ways. First, the TRL brief is essentially saying that marriage rights for interracial couples are secure only by congressional grace, not by fundamental constitutional law. Congress would be free to revoke that protection (though it assuredly would not do so these days). Second, the argument suggests that in 1967 bans on interracial marriage had already been illegal under federal law for more than a century. That certainly would have been news to the 16 states that still had such laws. Indeed, historically, all but nine states enacted anti-miscegenation laws at some point. Third, the TRL brief ignores the independent holding of Loving that bans on interracial marriages are unconstitutional under the Equal Protection Clause. Is there no textual or historical basis for that holding? Fourth, the TRL brief characterizes the issue as involving "a right to interracial marriage" rather than as involving "a right to marriage" that interracial couples must be allowed to exercise.
In places, the brief reads like a progressive parody of the conservative critique of unenumerated constitutional rights–conceiving rights in the narrowest way and then, so conceived, finding no constitutional support for them. But at least TRL finds a way to conclude that states must allow interracial marriages.
According to TRL, however, "the news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage." The rights announced in Lawrence and Obergefell "are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence." While "far less hazardous to human life," they are just "as lawless as Roe."
Here the brief specifically rejects Mississippi's view that Obergefell might survive in a post-Roe world.
Mississippi suggests that Obergefell could be defended by invoking the "fundamental right to marry" which is "'fundamental as a matter of history and tradition.'" Pet. Br. at 13 (quoting Obergefell, 576 U.S. at 671). But a "fundamental right" must be defined with specificity before assessing whether that right is "deeply rooted in this Nation's history and tradition."See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (requiring federal courts to employ a "careful description" of conduct or behavior that a litigant alleges to be protected by the Constitution, and forbidding resort to generalizations and abstractions). Otherwise long-prohibited conduct can be made into a "fundamental right" that is "deeply rooted in this Nation's history and tradition," so long as a litigant is creative enough to define the "right" at a high enough level of abstraction. The right to marry an opposite-sex spouse spouse is "deeply rooted in this Nation's history and tradition"; the right to marry a same-sex spouse obviously is not.
Like the "right to interracial marriage," according to TRL, the "right to same-sex marriage" is nowhere to be found in the Constitution. There is no right to marriage in the text, so there is of course no right to marriage that same-sex couples must be allowed to exercise. Further, TRL says, states must even be allowed to criminalize sexual intimacy in the privacy of gay couples' homes.
What's notable about this line of argument is how unremarkable it is in mainstream conservative legal critiques of substantive due process, Obergefell, and Lawrence. It's a critique some of the Justices endorse. No doubt many of Mississippi's amici also share it, although they are not as forthcoming.
In the end, Mitchell and Mortara say they are not necessarily asking the Court to overrule Obergefell and Lawrence right now, but they believe it would be nice if the Court wrote "an opinion that leaves those decisions hanging by a thread."
There are many ways to distinguish abortion from gay marriage, some of which are relevant to constitutional law. Among other things, both equal protection and stare decisis will figure differently in these contexts. But if the influential architect of SB8 and his widely respected co-author somehow persuade a majority of the Justices to write an opinion eviscerating substantive due process, one thread supporting Obergefell will be a lot easier to cut.
The post There's No Constitutional Right to Interracial (or Same-Sex) Marriage, Says the Architect of the Texas "Heartbeat Bill" appeared first on Reason.com.
]]>There were 81 briefs on the petitioners' side (supporting Mississippi) filed in late July. Many of them unabashedly compare Roe and Casey to decisions like Dred Scott and Lochner v. New York as examples of constitutionally unsound results that caused harm and injustice.
By my count, only 11 of the 81 briefs even cite Obergefell. Of those 11, eight simply refer to a dissent in Obergefell, most commonly the one from Chief Justice Roberts, for the proposition that judges should be careful about declaring unenumerated rights lest they circumscribe too many democratic choices. But the briefs do not directly criticize the outcome or otherwise critique the reasoning of Obergefell. (Of course, I do not mean to suggest that the amicus brief authors support same-sex marriage. Many are among the most prominent opponents of it as a matter of policy and constitutional law.)
Of the three briefs that deal with the substance of Obergefell, two can be classified as relatively favorable. One of these is the brief from Professor Gilles. He writes:
Roe and Casey were not rightly decided under the 'reasoned judgment' approach as described and applied in Obergefell. The right to elective abortion was adopted and reaffirmed on the basis of specious arguments, question-begging assumptions, and inconsistent reasoning, not reasoned judgment. (p. 7)
In Gilles' view, Roe and Casey misrepresented Anglo-American history and traditions related to abortion and failed to engage the applicable precedents with "principled consistency." The implication is that Obergefell was a defensible application of the fundamental right to marry while Roe was an ugly excrescence on constitutional doctrine.
The second of the three briefs dealing substantively with Obergefell is the one for Mississippi itself. The petitioners' brief seemingly concedes the very formulation of the constitutional issue asserted by the gay couples in Obergefell.
Nor can a right to abortion be justified under Obergefell v. Hodges, 576 U.S. 644 (2015), which recognized a fundamental right to marry. Obergefell applied the understanding that when a right "is fundamental as a matter of history and tradition"—like marriage—then a State must have "a sufficient justification for excluding the relevant class" from exercising it. Id. at 671. That understanding has no relevance here, where the question is not "who [may] exercise[ ]" a fundamental right to abortion but whether the Constitution protects such a right at all. (p. 13)
The challenge for gay couples in Obergefell was to get the Court to see the claimed constitutional right in exactly this way: as the logical and experience-based affirmation of an old right (the right to marry), rather than as the a priori concoction of something new (the right to same-sex marriage).
Similarly, Mississippi posits a world of doctrinal difference between abortion and same-sex marriage (and homosexual conduct) when it comes to harm:
Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life. Cf. Obergefell, 576 U.S. at 679 ("[T]hese cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties."); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (similar). (p. 17)
Perhaps Mississippi felt it had to adopt these perspectives on Obergefell because the Court itself had adopted them. There is a difference between accepting premises for the sake of argument and actually believing those premises. Abortion opponents are already asking the Court for a monumental reversal. There's no need to add yet more to that burden.
Nobody supposes Mississippi's lawyers suddenly awoke to the merits of a constitutional right to gay marriage. And few gay marriage supporters will take much comfort in the comparative silence about Obergefell coming from Mississippi's 80 amici. Prominent LGBT rights groups and advocates warned in an amicus brief filed yesterday that overruling Roe and Casey "cannot be reconciled with this Court's decisions affirming the fundamental equality of women and of LGBTQ people." (p. 18)
But the effect of the argument being made by Professor Gilles and Mississippi is to offer the Court a way to do precisely that: overrule Roe and Casey without threatening other important precedents. Whether such efforts to distinguish Roe/Casey from Obergefell could be successful is a subject for another day.
There is, however, one notable brief supporting Mississippi that squarely takes on Obergefell–and much more besides. I'll have more to say about that in a separate post.
The post What the Briefs in Jackson Women's Health (Don't) Say about Same-Sex Marriage appeared first on Reason.com.
]]>The great Masterpiece Cakeshop debates of 2015–2018 could sometimes sound like the refrain from "Anything You Can Do (I Can Do Better)," with people on the baker's side insisting that creating and decorating a custom wedding cake is an expressive activity and thus protected conduct under the First Amendment, and people on the complainants' side insisting it's mere commercial activity and so proprietors cannot pick and choose which jobs to accept based on their moral convictions ("yes it is," "no it's not," "yes it is," "no it's not"). But yesterday, in a similar case, the U.S. Court of Appeals for the 10th Circuit chucked that criterion out the window and decreed that speech itself can be compelled by the state in the name of preventing discrimination against gays and lesbians.
In 303 Creative LLC v. Elenis, a divided three-judge panel found that designing a custom wedding website is "pure speech." Under Colorado's anti-discrimination law, the court noted, "Appellants are forced to create websites—and thus, speech—that they would otherwise refuse." This would seem to point to a win for the web designers who do not wish to use their creative skills to "celebrate and promote the couple's wedding and unique love story." But according to Judge Mary Beck Briscoe and Judge Michael Murphy, that fact is less important than the "compelling interest" the state of Colorado has in "protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace."
The wildest thing about the decision is that it says giving a conscience-based exemption to a web design firm would "necessarily relegate LGBT consumers to an inferior market because Appellants' unique services are, by definition, unavailable elsewhere." The fact that "LGBT consumers may be able to obtain wedding-website design services from other businesses" is irrelevant. "The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist."
As Ed Whelan pointed out at National Review, "it is difficult to imagine a ruling more hostile to free speech," since under this standard, every commercial artist would be classified as a monopolist (by definition, no one else can compete in his or her marketplace of one) subject to content regulation. It's as if the same expressive qualities that trigger the First Amendment are also being used to moot the First Amendment.
This decision is harrowing and worth objecting to on the merits. It also strikes me as exactly the kind of thing the U.S. Supreme Court might unanimously overturn. (UCLA law professor Eugene Volokh, who disagreed with me and many other libertarians about Masterpiece Cakeshop on the grounds that cake decoration doesn't qualify as speech, notes in a blog post that he co-filed an amicus brief on the side of the web designers in this case.) But even if the 10th Circuit's ruling doesn't stand—and I very much hope it won't—there is reason to be concerned about the way that cases like this can increase political radicalization and animus.
In a January survey of people who supported then–President Donald Trump in 2020, 89 percent said that "Christianity is under attack in America today." Asked how important it was for a politician to "support laws protecting religious liberty," seven in 10 gave it a five out of five; no other attribute was rated so highly by so many.
This is strong evidence that support for Trump was a reaction against something specific—namely, a sense that "people like them" are facing unjust assaults that require an extreme response on their part. The Supreme Court's ruling in favor of the baker in Masterpiece should have been a vindication of their rights, yet the situation* involving 303 Creative is, if anything, even more brazen.
The 45th president's critics have rightly faulted him for fomenting us vs. them division. The left's efforts to drive people of faith from the public square are just as morally deficient, and to the extent they push the right in a more authoritarian direction, they're only making our toxic politics worse.
*CORRECTION: Unlike Masterpiece Cakeshop, which has been repeatedly targeted under Colorado's anti-discrimination law, 303 Creative is preemptively challenging the law's constitutionality. The court found that the company has "a credible fear that Colorado will enforce [the state's Anti-Discrimination Act] against them."
The post Judges Say Web Design Is 'Pure Speech' and That the State Can Compel It Anyway appeared first on Reason.com.
]]>Support for same-sex marriage in the United States has reached a record high of 70 percent, according to a new Gallup poll, conducted in May.
For the first time, support for same-sex marriage among Republicans has passed the 50 percent threshold, jumping all the way up to 55 percent.
Support for same-sex marriage has been steadily increasing since Gallup started asking about it in 1997. When Gallup first asked, support was at just 27 percent. In just a quarter of a century, the numbers have reversed entirely. Support continues to grow among all age groups.
It's a wonderful reminder, during Pride Month, of how quickly life has gotten better for LGBT people in America. It's a win for liberty because it's a result not of government mandates but of people genuinely and honestly changing their minds, realizing that allowing gay people to define their own relationships and families is not some threat to society. The growth in support started well before the Supreme Court mandated in 2015 that the federal government and states recognize same-sex marriage and, as Jonathan Rauch noted in Reason in 2018, tracked with Americans slowly changing their minds about the morality of same-sex relationships as well.
In fact, you can't even tell when that ruling came down from looking at polling data. The Supreme Court decision in Obergefell v. Hodges probably didn't cause greater numbers of Americans to support same-sex marriage; it merely reflected what Americans had already come to conclude—that the government had no legitimate reason to treat same-sex marriages differently from heterosexual ones. It was the logical outcome once people by and large concluded that homosexuality was not a moral threat after all.
Support for legalizing marijuana is just a couple of points behind gay marriage. Gallup's poll from 2020 has support at 68 percent. Republicans in the most recent polling remain below the 50 percent threshold. Only 48 percent support legalization, but it did cross that threshold in two previous polls, only to decline.
Marijuana has taken a much longer time to reach this point. The harsh drug war Americans were sold kept support for marijuana legalization below 30 percent all the way until the end of the 20th century.
As many at Reason have previously noted, state experimentation through the mechanism of federalism has played a major role in shifting public opinion toward accepting both same-sex marriage and recreational marijuana use. In each case, a handful of states led the way. Citizens in other states could see the results. Gay marriage didn't destabilize families. Marijuana use didn't destroy lives, and it did seem to help people with certain illnesses feel better.
President Joe Biden, unfortunately, remains well behind the curve in marijuana legalization and does not seem terribly interested in actually doing much about it remaining a Schedule I controlled substance under federal law. But Americans continue to see, every day, that marijuana is no more of a moral threat than same-sex marriage. Rauch wrote in 2018:
Over time, it became evident that marijuana and marriage, like most political issues today, were primarily about morals and values, and only secondarily about policy trade-offs. For marriage equality, the real hang-up was the majority's belief that same-sex relations, in or out of marriage, are morally wrong, something most Americans told Gallup they believed until 2010. Attitudes toward same-sex marriage closely tracked with attitudes toward same-sex morality. People regarded support for legalization as a form of personal approval.
Much the same is true for marijuana. In 2006, most Americans told Pew Research that using marijuana was morally wrong. That figure had declined to only a third in 2013, a crucial breakthrough, given that most Americans do not distinguish clearly between public policy and personal morality. "As long as they saw marijuana as a threat to the safety of their children, we couldn't win," Stroup says. "As long as it was considered sinful or bad conduct or immoral, they were not about to" support legalization.
In other words, it was not enough to show that getting married or high is my right; activists needed to show that it is right—or at least not wrong.
Both advocates of same-sex marriage and marijuana legalization have succeeded wonderfully here, and slowly but surely, Americans are becoming more able to define their own relationships and consume what they want without the government attempting to punish them for it.
The post America Loves Gay Marriage (and Weed) appeared first on Reason.com.
]]>Welcome to Pride Month, a celebration of LGBT culture and activism across the world!
Unless you live in a cave, you probably already know this. That the general public knows it's Pride Month is itself a massive marker of huge culture shifts in public attitudes about LGBT people. Just a decade or so ago, most Americans only knew it was Pride Month from news coverage of local parades.
Back in my college days, I would march in those parades. It feels like more than a lifetime ago, though in reality it's been only 25 years. I was in the parade representing a very small college LGBT organization that I had founded myself. When I marched on the streets of St. Louis, there was no legal recognition of gay marriage, the military banned service by anybody discovered to be gay or transgender, and AIDS was still a life-threatening virus. Missouri had sodomy laws on the books.
There were corporate supporters of Pride activities, even then—primarily alcohol companies. Absolut Vodka was famous for marketing to LGBT people, and their full-page magazine ads are well-remembered by many LGBT boomers and Gen Xers.
There was little by way of ad marketing directed toward the general audience that was developed with LGBT people in mind, or inclusive of them at all. That has certainly changed. Now almost all major brands commemorate Pride Month, putting rainbow colors on their products. If anybody really, really wants a rainbow-colored sonic toothbrush with a "yaaas" setting (for teeth whitening), it's out there.
One of the last big barriers to LGBT equality in America tumbled last year—during Pride Month, actually—when the Supreme Court ruled 6–3 that the Civil Rights Act of 1964 protected gay and trans people from workplace discrimination. This Pride Month, we're waiting for a ruling from the Supreme Court on whether church-sponsored foster care agencies can reject gay couples as potential caretakers.
But had the court ruled against LGBT employees, and even if they ultimately rule against LGBT foster parents, our culture has shifted so much that the impact of these rulings is much more limited than it would've been just a few decades ago. Employers these days jockey to be on lists of "best workplaces for LGBT people" (and my inbox is flooded with press releases about them every June). The rejection of a Catholic foster agency, for example, does not actually stand in the way of a same-sex couple becoming caretakers for needy children; there are alternatives. For every Christian baker who refuses to make a gay wedding cake, there are hundreds of bakeries who are happy to oblige.
The market was adjusting to these cultural shifts way before government, as it always does.
We're in the midst of a culture war over trans acceptance, a bit of a backlash to this advancement that has resulted in some bad state-level legislation based on bathroom panics. Some of it is a terribly blatant attempt by trans skeptics to interfere with medical treatment decisions that should be made by trans teens and their guardians in consultation with medical professionals and should not involve the government.
The backlash is real, is significant, and shouldn't be ignored. It's also worth noting, though, that even the nature of this fight represents how far we've advanced culturally. At the exact same time I was coming out as gay in 1990, a friend of mine was coming out as trans (back then the term was transsexual) after becoming an adult and graduating high school. Most LGBT people didn't come out until adulthood, even though many of us had known for years before then that we were gay or trans. Transitioning was generally something a trans person did as an adult, not a teen.
So this culture war battle we're having now isn't fundamentally about whether people are really trans but about when and how to recognize it. Obviously, there's a big chunk of opposition still motivated by a belief that there really isn't such a thing as a trans person and that these people are mentally ill or liars, regardless of what science says. Those anti-trans folks may be able to pass legislation in some states, but polling shows them as cultural dead-enders. A majority of Americans oppose laws targeting trans people for discriminatory treatment. Politics remains a lagging indicator.
Further evidence of the LGBT movement's overall successes comes from the increasingly petty fight over who gets to take credit for its successes and pettier gatekeeping over who gets to celebrate it. It seems as though every June brings with it a debate over who was actually "responsible" for the Stonewall riots, as though that was where the gay rights battle began. (Activists had been protesting for better treatment under the law for years prior.) Some people seem to want to argue the opinions or desires of those who look most like those early organizers should carry additional weight 50 years later. It's a silly and wholly unnecessary fight. The riots were the handiwork of a diverse crew of LGBT folks drawn together at Stonewall by virtue of having few other options available at a time where police were targeting gay and trans people—of all ethnicities and backgrounds—for cruelty.
Pride Month's transformation from a political organizing tool to a celebration to what it's becoming now—an entrenched, marketable institution—is a marvelous accomplishment of cultural accommodation. As a former newspaper editor who was in California for the passage of Proposition 8, which temporarily blocked same-sex marriage recognition in the Golden State, fighting over who gets credit for the gay rights movement's successes is certainly preferable to bickering over failures.
But better than either of those is actually celebrating this success and taking time to enjoy a life that was impossible in 1969. It was impossible in '79, '89, and '99 as well. After Pride Month ends, I'll be turning 50. The world for an LGBT person in 2021 is wholly unrecognizable from what I grew up through in the '70s and '80s in the best possible way.
I'll be blunt: I thought I would be dead decades ago, from getting AIDS or from despair-driven suicide. I had no concept of my own future beyond day-to-day living for most of my teens and early adulthood. It was unfathomable to my teenage self that someday I'd be, legally and culturally, treated pretty much the same as heterosexual people.
Though there's still work to be done, we should reject anybody who wants to sell the idea that life is still very, very bad for LGBT folks in America. Perfect? Of course not. The targeting of trans people through state legislation is a cynical manipulation often pushed by people who have opposed LGBT rights all along.
To throw a common anti-gay refrain right back in their faces: It's just a phase. It is a backlash that has come with the enormous success of LGBT people in changing the dominant culture.
I am not going to buy a stupid rainbow toothbrush. It even fails at virtue signaling—who is going to see the thing besides you and those you live with? But a world where there's a market for something as silly as that is a world I'm very happy to live in.
The post There's Never Been a Better Time To Be LGBT in America appeared first on Reason.com.
]]>London, England police, arrested street preacher John Sherwood outside Uxbridge Station after someone claimed he made homophobic remarks during a sermon. Sherwood was handcuffed and held overnight at a police station but released without charges. "I wasn't making any homophobic comments," said Sherwood. "I was just defining marriage as a relationship between a man and a woman. … When the police approached me, I explained that I was exercising my religious liberty and my conscience. I was forcibly pulled down from the steps and suffered some injury to my wrist and to my elbow."
The post Brickbat: Daddy Was an Old-Time Preacher Man appeared first on Reason.com.
]]>The San Francisco Board of Supervisors is celebrating a pair of pioneering civil rights activists the only way it knows how: by constricting housing development.
On Tuesday, the Board voted unanimously to landmark the longtime home of Phyllis Lyon and Del Martin in the city's Noe Valley neighborhood, reports the San Francisco Chronicle.
Lyon and Martin, a lesbian couple, were early gay rights advocates who co-founded the first lesbian rights organization in the country, the Daughters of Bilitis. The two were also the first same-sex couple to be married in California, back in 2004.
Martin died in 2008, and Lyon in 2020. Their home passed to a daughter of Martin's that year before being sold, alongside a vacant lot next door, to a new owner. After its sale, a grassroots group called the Friends of Lyon-Martin House sprang up to prevent the home's demolition, reports the Chronicle. Its landmark status means they can rest easy.
Owners of locally designated landmarks in San Francisco have to jump through a number of extra hoops should they wish to alter their property. That includes applying for a special Certificate of Appropriateness when making any exterior alternations, which is then reviewed by a number of government bodies including the Historic Preservation Commission, the Planning Department, and potentially the Planning Commission (which oversees the Planning Department).
This 13-page bulletin published by the San Francisco Planning Department outlines the process to apply for one of these Certificates of Appropriateness.
"The Lyon-Martin House is eligible for local designation as it is associated with events that have made a significant contribution to the broad patterns of San Francisco history and with persons significant to San Francisco history," reads the ordinance passed by the Board of Supervisors earlier this week.
That ordinance lists out a number of specific features about the house that will have to be preserved or replaced in kind. That includes the location of the house as setback from the street, the massing and roof form at the front of the building, the physical and visual connection between the front façade of the house and the street, the large living room window, and the internal configuration of the living room and dining room/office area.
The point of these additional rules for landmarked properties is to prevent any major changes to them. Indeed, that's the whole point of historic preservation laws.
One can argue about whether these regulations are appropriate or necessary for the goal of protecting particularly important historic buildings. Arguments in favor of those regulations wouldn't apply to the Lyon-Martin house.
Neither the landmarking ordinance itself—or the actual appearance of the house—suggest there's anything particularly interesting or important about its appearance. Rather, the preservation of the building is being justified on the grounds that interesting and important things took place inside it.
The history the Board of Supervisors is trying to preserve, in other words, is incidental to the physical form they're legally protecting. The more homes that receive this protection in the city, the less history will be created there going forward.
Walling off individual buildings or even whole businesses from alteration or redevelopment prevents new generations of activists, artists, creators, and whoever else from moving into an area and making historically important contributions of their own.
Surely there are better ways to honor activists who tried to change the world around them than by turning their home into an effective museum.
The ordinance landmarking the Lyon-Martin house still requires a second vote by the Board next week, according to the Chronicle.
The post San Francisco Honors Early Lesbian Activists by Preventing Redevelopment of Their Home appeared first on Reason.com.
]]>One of the very few positive aspects of the awful Covid pandemic is the opportunity to have big-name "virtual" guest-speakers in college and law school classes. Tomorrow's guest speaker in my Constitutional Law II class will be Prof. William Eskridge, of Yale Law School, probably the nation's leading expert on the law and politics of same-sex marriage. He will be speaking about his recent book Marriage Equality: From Outlaws to In-Laws (coauthored with Christopher Riano). It is the closest thing we have to a definitive comprehensive account of how same-sex marriage went from being a radical fringe idea to a recognized constitutional right endorsed by a Supreme Court decision.
A brief anecdote illustrates how swift that transformation was. In 1992, when I was a college freshman, a gay classmate I will refer to as "Bob" asked me what rights I thought gays and lesbians should have. "The same rights as everyone else," I answered.
Perhaps sensing an effort at evasion, Bob pressed on and asked what exactly I meant by that. I said it meant anti-sodomy laws should be abolished (many states still had them), that gays and lesbians should be allowed to serve openly in the military (a hotly debated issue at the time, culminating in the "don't ask, don't tell" compromise of 1993), and a few other similar points.
It did not occur to me to mention same-sex marriage—an idea I probably hadn't even heard of yet. Perhaps more tellingly, it apparently didn't occur to Bob to ask about it! He seemed happy with the answer I gave, even though it omitted the issue. In 1992, even many politically aware people (including, probably, a good many gays and lesbians) barely knew that same-sex marriage was even an option.
As Eskridge and Riano document in their book, the idea of same-sex marriage long predated that time. But few Americans were aware of it, beyond the relatively narrow circle of activists and policy experts who closely followed gay rights issues.
Within a few years, that changed. By 1995, same-sex marriage was a major focus of public debate, though majority public opinion was strongly opposed to it. I myself was happy to endorse same-sex marriage as soon as I heard of the concept (probably around 1994 or so). But that was very much a minority view at the time.
While a few state supreme courts ruled in favor of a right to same-sex marriage under their state constitutions, majority national opinion remained opposed up until around 2012. Even such liberal politicians as Barack Obama found it advantageous to oppose it themselves, or at least pretend to do so.
Yet public opinion ultimately shifted decisively in favor of same-sex marriage, and in Obergefell v. Hodges (2015), the Supreme Court ruled that laws banning same-sex marriage are unconstitutional. That happened only a little more than two decades after my little discussion with Bob.
What caused this dramatic transformation? If you want to know the answer, read Eskridge and Riano's book! It may well be, however, that we are still too close in time to these events to get proper historical perspective on them. Legal scholars, historians, and social scientists will likely debate their implications for many years to come.
For now, I would like to mention two key lessons that—at least to my mind—permeate Marriage Equality.
First, legal and political action are mutually reinforcing strategies for achieving constitutional reform. Again and again, Eskridge and Riano describe how victories in court set the stage for wins in the political arena, and vice versa.
Early pro-same-sex marriage decisions in state courts, such as the Massachusetts Supreme Judicial Court ruling in Goodridge v. Department of Public Health (2003) were made possible by the (partial) success of the gay rights movement's efforts to shift public opinion about gays and lesbians generally. Those rulings, in turn, gave a further boost to the gay rights movement, and helped pave the way for further shifts in public opinion, and further favorable judicial rulings—eventually culminating in Obergefell. The "normalization" of same-sex marriage required a combination of legal and political action, not an exclusive focus on one or the other. Far from being mutually exclusive, as some scholars argue, these two strategies were mutually reinforcing.
Eskridge and Riano are not the first scholars to chronicle such a process. Earlier writers found similar patterns in the civil rights movements, the women's rights movement, the gun rights movement, and others. I myself have written about it in the context of the struggle to strengthen constitutional protection for property rights. But Marriage Equality is a particularly thorough and insightful account of how that synergy worked in one of the most high-profile constitutional movements of our time.
The second lesson is that the same-sex marriage movement did not triumph by advocating the importance of validating a distinct LGBT cultural identity, but rather by emphasizing how same-sex marriage is fundamentally similar to opposite-sex marriage; and gays and lesbians, more generally, are fundamentally similar to heterosexuals.
As an Iowa Supreme Court ruling quoted by Eskridge and Riano put it, the plaintiffs in the case were "in committed and loving relationships, many raising families, just like heterosexual couples." Similar statements abound throughout Marriage Equality. Ultimately, the same-sex marriage movement triumphed by focusing on universal principles of liberty, justice, and equality, rather than on a distinctive group identity.
This, too, is far from unique to the struggle for same-sex marriage. We see the same pattern in the success of the antislavery movement, and movements for racial and gender equality. Elsewhere, I have argued that a similar strategy should be adopted by advocates of free international migration regardless of morally arbitrary circumstances of parentage and place of birth.
It is no accident that the antislavery movement's most famous and successful image was this 1787 Josiah Wedgewood image of a black slave, asking "Am I not a man and a brother?"
Wedegwood drove home the point that there is no morally significant distinction between blacks and whites, and thus no good reason to deny the former the same liberty as that claimed by the latter.
Similarly, the same-sex marriage movement (and the gay rights movement generally) emphasized how gays and lesbians are also our brothers and sisters (sometimes literally so!), and that differences in sexual orientation are ultimately superficial in nature. Thus, there is no good reason to deny gays and lesbians the same rights for their relationships as those claimed for heterosexual ones.
This lesson may seem blatantly obvious. But it is deeply at odds with the positions of many identity politics movements on both the "woke" left, and the nationalist/identitarian right, which focus on the supposed uniqueness and incommensurability of different ethnic, racial, cultural, and religious groups.
Much more can be learned from Eskridge and Riano's excellent book. For a sampling of some of the other issues it raises, see this recent symposium about it at the Balkinization site.
The post Lessons of the Legal and Political Struggle for Same-Sex Marriage appeared first on Reason.com.
]]>For the first time, a majority of Republicans support marriage equality for gay and lesbian couples, according to a new poll from the Public Religion Research Institute (PRRI). The PRRI poll—conducted throughout 2020—finds U.S. support for same-sex marriage now stands at 67 percent, up from 61 percent in 2017 and 36 percent in 2007. Much of the recent rise can be attributed to growing support by conservatives and independents.
In 2020, 51 percent of the Republicans polled by PRRI said they support granting legal marriage rights to same-sex couples. This is up from 47 percent in 2019 and 31 percent in 2011.
Support has also increased among people identifying as politically independent: 72 percent in 2020, up several percentage points from 2019 and up from 47 percent in 2011.
At 76 percent, support for same-sex marriage among Democrats is about where it was in 2018 (following a slight dip in 2019) and up from 58 percent in 2011.
The latest poll results are based on telephone interviews with more than 10,000 Americans conducted throughout 2020; the margin of error is plus or minus 1.1 percentage point.
These days, "majorities of most religious groups support same-sex marriage," notes PRRI. Support was highest (76 percent) among Americans who described themselves as religious and non-Christian, followed by white Catholics (75 percent), white mainline Protestants (72 percent), and Hispanic Catholics (71 percent).
"Majorities of Black Protestants (57%), other Protestants of color (56%), and Hispanic Protestants (51%) support same-sex marriage," notes PRRI. Support was lowest among white evangelical Protestants: 43 percent.
A federal appeals court is considering the constitutionality of surveillance cameras installed outside people's homes. From Courthouse News:
Can police install a secret video camera outside someone's home and record everything that happens there for eight months? The First Circuit seemed dubious during oral argument Tuesday, but the judges also struggled to figure out where to draw the line as to when police need a warrant for their high-tech surveillance.
"Wouldn't many of us feel insecure if we suddenly found out a camera was recording everything that happened in the curtilage of our house?" asked U.S. Circuit Judge William Kayatta.
"That would make me feel insecure," the Obama appointee said. "Why wouldn't most people feel that way?"
U.S. Circuit Judge O. Rogeriee Thompson, a fellow Obama appointee, complained that the government was arguing that its right to spy on people "should be limitless."
"Are we just going to put these cameras in front of everybody's house and monitor them and see if anybody's up to anything?" she asked.
But in a contentious argument that was scheduled for 40 minutes and lasted two hours, U.S. Circuit Judge Sandra Lynch insisted over and over again that the fact that a police officer could walk by a house and see what was happening outside meant that the government had a right to use a hidden camera to see what was happening outside all day long for months on end.
Utah governor vetoes unconstitutional rules for social media but signs porn filter bill. On Tuesday, Utah Gov. Spencer Cox, a Republican, said no to a bill that would have fined social media companies for making content moderation decisions that state regulators didn't like. The bill—passed by the state legislature in early March—would likely not have stood up to scrutiny in the courts.
But Cox went ahead and signed another piece of unconstitutional legislation, this one requiring all phones sold in Utah to come with porn-blocking filters pre-installed. "Cox has said the measure would send an 'important message' about preventing children from accessing explicit online content," the Associated Press reports:
The measure won't go into effect unless five other states enact similar laws, a provision that was added to address concerns that it would be difficult to implement.
The American Civil Liberties Union of Utah said the constitutionality of the bill was not adequately considered and that it will likely be argued in court.
"This is another example of the Legislature dodging the constitutional impacts of the legislation they pass," ACLU attorney Jason Groth said.
NYPD Commissioners Cleared Cops Found Guilty of Everything From Chokeholds to Pushing Man Into Traffic. https://t.co/28OZun3rR5
— David Menschel (@davidminpdx) March 23, 2021
• President Joe Biden's new gun control plans "make little sense as a response to the mass shooting in Boulder," Reason's Jacob Sullum writes.
• Sex trafficking panic and victim blaming follow in the wake of the Atlanta massage parlor murders.
• Online content moderation is more difficult than politicians realize:
"Those in elected office only paint social media in two colors: They are either a tool that silences viewpoints, or complicit in the spread of harmful, dangerous content." https://t.co/JgFcqImikV @jeffreywestling
— R Street Institute (@RSI) March 23, 2021
• School choice is most likely coming to West Virginia.
• Arkansas is attempting to mandate the singing of "The Star-Spangled Banner" at public school sporting events.
Didn't we already go through this 80 years ago when the Supreme Court explained that you can't compel speech? I mean, that was about the pledge of allegiance in schools, rather than the anthem, but, y'know, same thing: https://t.co/TU9zXpUDWZ https://t.co/5JTQTzYPTR
— Mike Masnick (@mmasnick) March 23, 2021
The post For the First Time, a Majority of Republicans Support Same-Sex Marriage appeared first on Reason.com.
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