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Responding to Comments on “Marriage Equality” Series — and a Big Thanks to Michael Ginsborg

August 7th, 2009 1 comment

For most of the week just gone by, I’ve been guest-blogging on the issue of religious accommodations to marriage equality and to other protections that same-sex couples enjoy under state anti-discrimination law. The blogs have appeared on one of my favorite, because most informative, sites: Proposition 8 and the Right to Marry. It’s hosted by Michael Ginsborg, a San Francisco-based law librarian who somehow keeps abreast of every significant legal development on marriage equality and related legal issues, while holding down a full-time job. Thanks again to Michael for this invitation. It seems he enjoyed the outcome as much as I did.  (You can find the posts on that site, or here on wordinedgewise; just scroll back through the immediately preceding four posts, and you can jump to the full text  after a couple of introductory paragraphs.)

As much as I enjoyed doing the series, I had no idea that it would engender such a wealth of response. Dale Carpenter, over at The Volokh Conspiracy, linked to the series, and then extensively analyzed and commented on my central proposal. (Less positively, the Alliance Defense Fund also noted the series.)  And I found myself swamped by comments: Part III of the series, which contains my core proposal, garnered almost 200 comments between Volokh and Prop 8 and the Right to Marry. In all, there have been almost 300 comments.

Obviously, I have neither the time nor the desire to respond to all of these individually. Nor is doing so necessary — while many are insightful, some are so far outside bounds of civilized discourse that they shouldn’t be dignified. And when there are a great number of comments, there’s some back-and-forthing that strays far from the initial proposal. Also, the torrent of comments over at Volokh responded to both me and to Carpenter’s alternative suggestion; I’ll leave him to defend his own ideas. Yet there are many some insightful points that I do want to address (mostly without specific reference to the commenter). I’ll also reiterate just enough of the points made in my posts to provide needed context.

On my idea that businesses opposing same-sex marriages shouldn’t be permitted to deny normal commercial services to these couples — but should have a First Amendment right to announce their religious views in opposition — and on Carpenter’s alternative suggestion that such businesses be allowed to refuse service only if they display such a sign, this brisk comment was incisive: “I think posting a sign of either kind is like trying to avoid lightning by holding up a steel pole.”  Other less pithy commenters were along the same line, with one noting that my idea had already failed in the New Mexico case where a photographer refused to shoot a same-sex commitment ceremony, and then was sued. Another suggested that those advertising that they’d prefer not to deal with same-sex couples might not avoid the wrath of gay-rights organizations. Might it be better to fly under the radar?

Maybe. It’s hard to know, as my proposal moves in uncharted waters. Perhaps I’m seized by Pollyanna palsy, thinking that if same-sex couples know about a particular business’s objections in advance, they won’t press the issue, even if I believe they should have the right to. I don’t know the details of the New Mexico case (but plan to look into them), but perhaps the couple’s surprise at the response set off a reaction that led to litigation. My guess is that very few wedding-related businesses will care enough to advertise their opposition; those that do might expect fewer straight couples, as well, if the locality is progressive.

On a broader front, there are those who generally oppose laws that prohibit private businesses from discriminating. Among the most thoughtful of these was this commenter:

As much as I support gay marriage in an official sense (I don’t think the government should refuse to issue marriage certificates to gay couples), I’ve always been skeptical of anti-descrimination laws regarding private business. Individuals are allowed to be racists, sexist, anti-gay, etc, so why shouldn’t business be allowed to do so? It’s a stupid business decision to refuse to serve people illogical reasons like race or sexual orientation, but private businesses should be allowed to make stupid decisions.

Our thinking about private anti-discrimnation laws has been tainted by the (post) Jim Crow experience in the South. That was a special case where government entities hostile to the rule of law effectuated public policy through private actors on a wink and nod basis (If you didn’t discriminate you would be punished). The fact that there was a special case that required an exception to the general rule that private actors can be bigots, is a poor reason to change the general rule.

This is a respectable argument — with which I strongly disagree — but it’s not my fight here. In fact, we do extend such anti-discrimination protection to all kinds of  classes beyond race, including sex, religion, national origin, disability, and so on. I’m therefore quite skeptical of any laws that would effectively single out same-sex couples for treatment that we’ve collectively decided isn’t fair to impose on other groups. And, as I mentioned in Part II, I’ll bet that many of those calling for these exemptions aren’t sincere in saying they’d like to limit them to the marriage context. (Some of the commenters picked up on that possibility, with some good examples, too. One noted that protections for religions aren’t needed here any more than in the case of divorce, where a particular church — say, the Catholic Church, won’t recognize a legal divorce. No one thinks they should have to, and no one thinks religions need to marry same-sex couples, either. So, where the exemption is limited to this context, it’s not necessary and may be seen as a form of bigotry.)

During a lively exchange of comments to the first post over at Prop 8 and the Right to Marry, readers bruited about a reverse issue: Why focus on religious exemptions of those who oppose same-sex marriages in states where they are allowed and not on the religious rights of those who can’t marry in other places? I suppose that’s another way of saying that religious law should either be subordinated to civil law law, or not. Why does religion have the trump only when it cuts against equality? The short answer is that the civil law governs and sets the terms under which exemptions may (or may not) be granted; religion doesn’t come first. But that answer doesn’t really get at something deeper about freedom of religion and how it can be deployed to political advantage. I’d be interested in readers’ thoughts on this issue.

With the number of comments that poured forth, I could continue this for many more paragraphs. But I’ll content myself with a few final thoughts. Part IV, where I discussed discrimination by religiously affiliated businesses, drew a very negative comment that was to an extent deserved. In those cases, my view is evolving, and I didn’t set forth the kind of clear proposal I’d offered for the case of private business. Yet many of the toughest cases will be in this shadowy area where religious entities enter the public, and sometimes, commercial arena. As my detractor said:

Florists… it’s not about freakin’ florists. It’s about access to, and participation in, the countless faith-based and faith-affiliated service agencies that exist in this country and which receive hundreds of millions of dollars in public contracts to provide social services.

As I suggested in the post, for the most part I disfavor legal exemptions in these cases as much as in the case of “freakin’ florists.” Again, if religiously affiliated service agencies are involved in commerce, they need to play by those rules. Otherwise, no public contracts, no tax exemptions, and perhaps even liability under prevailing state laws. I suggested adoption services as a place to make an exception (for mostly practical reasons), as well as certain activities conducted with a purely religious purpose — not, for example, housing for married students in a college affiliated with a religious denomination. I’ll confess that line-drawing in these cases is tough, and my sympathies are almost always with the same-sex couple. But I might be persuaded in specific, well-defined cases to make clear exceptions, as I stated.

Let me close with one final quote from another commentator:

“Doesn’t this kind of discrimination, justifiable or not, make you sick?”

Yes.

Dale Carpenter’s Take on the Massachusetts DOMA Suit (and a Response)

July 11th, 2009 No comments

Dale Carpenter doesn’t find the same federalism problems with DOMA that I did. He starts by agreeing with much of what I said, especially about the “neutrality” canard:

“[T]he Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control…. Section 3 is a departure from the tradition of federal reliance on the states’ definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ’s view that federal ‘neutrality’ justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts.”

But then he argues that the problems don’t rise to the level of a constitutional concern:

“I am less persuaded that these concerns rise to constitutional dimensions, at least under existing precedents. For all the harm it does, DOMA does not forbid a state to define marriage as it sees fit. DOMA does not forbid a state to provide equal marital benefits and privileges to same-sex couples under its own laws and programs. At most, it makes a state’s recognition of same-sex marriages more cumbersome and costly than it would be if the federal government continued to defer to the state definition. This could, at least in theory, though probably not in fact, discourage a state from trying same-sex marriage.

“All of Massachusetts’ examples of federal ‘imposition’ of unprecedented costs and regulation are in fact uses of Congress’s Spending power. As the Court understands that power, Congress can spend in areas it could not directly regulate. Congress is free to dangle monetary carrots or brandish financial sticks within very broad limits, even in areas historically left to state power. The connection between a condition on the funds and the spending program itself need only be ‘rational.’ In the Wonderland of Constitution-speak, a law can be crazy without being irrational.”

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The post elicited scores of comments in response. This was the one I most agreed with:

“I think you’re missing the forest for the trees, here.

“DOMA is an unprecedented intrusion into the ability of states to define who and who is not married. Yes, the individual instances of that are minor and all within the federal powers. But that’s not the point.

“The point is this: the federal government has never before been able to pick and choose amongst states’ definitions of a marital or domestic status. DOMA is the first time that the federal government has ever said that it would not recognize a marital status created by a state — it’s simply unprecedented.”

“If we truly believe in a sphere of powers left to the states, and in the states’ rights decisions of Morrison and Lopez, then can there by anything more central to a state’s power than its ability to regulate the domestic relations of its inhabitants? If not, then what, really, is reserved to a state if the government can so recklessly throw asunder what state law has created..?

“DOMA is not just federal policy for federal policy’s sake. It undermines what the states are doing and pretends as if those relationships are not there. That clearly violates the states’ sole power to order domestic relations.”

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Maybe this is a case of logic confronting precedent, where the prior cases are, as the commenter suggests, less than fully persuasive.