Althouse | category: same-sex marriage



an endless succession of beans and nuts.

"We are fighting for the gay community, and we are fighting and fighting hard" — said Donald Trump.

Quoted in "Scenes from a celebration of the same-sex marriage law — at Mar-a-Lago/'We are fighting for the gay community, and we are fighting and fighting hard,' Donald Trump told a Log Cabin Republicans gala" (Politico).

Hundreds of guests in tuxedos of all styles — sequined, quilted, velvet — and colorful gowns sipped on Trump-branded champagne and martinis [and]... danced to “YMCA” and “Macho Man”....

Thursday night’s Log Cabin Republicans’ “Spirit of Lincoln” gala in the main ballroom of Donald Trump’s Mar-a-Lago beachfront club was a joyous celebration of gay rights....

Throughout the evening, speakers praised Trump for his embrace of the gay community....

I'm reading that because Chuck linked to it in the previous post and said: "I always contended that Althouse was right when she declared (during the 2016 Presidential campaign) that she thought that 'Trump is pro-gay but he’s being cagey about it.'"

Yeah, I did say that, back in July 2016, in the comments section to my post "Donald Trump may think Pence is a safe choice." 

I was responding to a commenter, Brando, who said:

Pence--he seems plain vanilla, as in he won't hurt. I disagree that his "anti-gay" stances would be a problem--if "anti-gay" was a problem for you, you wouldn't consider the GOP anyway (Trump is at least currently opposed to gay marriage).

I wrote:

If you are correct, I should just stop wasting my time taking the GOP seriously. I put up with a lot of social conservative stuff I think should not be part of decent politics because overall I might think the GOP candidate will do a better job on the issues that he'll actually be dealing with.

To me, the anti-gay stuff from Pence is beyond the normal traditional-morals positioning. It's aggressive and stupid. The media will kill him with it and it will merge with the way they're already trying to kill Trump.

But some of you conservatives are so bent on getting back to traditional morality and using political power to do it that you're ready to leap into the risk that is Pence. I think Trump is smarter than that. I see Trump as pro-gay and being cagey about it.

"The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters..."

"... who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish. Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.... Colorado Solicitor General Eric R. Olson said Smith was conflating speech with commerce. A store would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said 'No Jews allowed.'"

From "Supreme Court seems to side with web designer opposed to same-sex marriage/Colorado’s Lorie Smith says being forced to create websites for gay couples would violate her right to free speech" by Robert Barnes , reports on the oral argument in 303 Creative v. Elenis in The Washington Post.

For more background on the case, see the post I wrote this morning, before the argument, based on the NYT article by Adam Liptak.

And here's Liptak after the argument: "Supreme Court Seems Ready to Back Web Designer Opposed to Same-Sex Marriage/The justices are expected to settle a question left open in 2018: how to reconcile claims of religious liberty with laws barring discrimination based on sexual orientation."

ADDED: Here's the transcript of the argument. Here's the part where Justice Jackson talks about "It's a Wonderful Life":

[T]his expression in my example is classic scenes with Santa, "It's a Wonderful Life," 1940s, and we want -- the -- the artist, the photographer, wants Santa with the kinds of depictions that are in that movie, and he wants to sell that to everybody, but what that means is only some people can be depicted in that picture. Is that -- that's -- I'm just trying to make it -- because we've heard a lot of questions about, well, isn't she customizing it? I mean, he's customizing each photo, but what he's saying is, I won't do the customization for these folks who want depictions with Santa because that is inconsistent with my beliefs about how that scene should be depicted, and I'm an artist, and you'd be forcing me to put out into the world pictures of Santa with children that I think are inconsistent with my view of how Santa should be depicted.

"[Lorie] Smith... sat near a plaque that echoed a Bible verse: 'I am God’s masterpiece.' She said she was happy to create graphics and websites..."

"... for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. 'When I chose to start my own business as an artist to create custom expression,' she said, 'I did not surrender my First Amendment rights.' Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said. 'You can’t turn people away based on who they are.'"

Writes Adam Liptak in "A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law." (NYT).

The oral argument is today.

If you're trying to remember why this is still a live issue after the wedding-cake case:

The court decided Masterpiece Cakeshop on an idiosyncratic ground that is not at issue in the new case, 303 Creative v. Elenis, No. 21-476. Justice Kennedy, writing for the majority in 2018, said [cake decorator Jack] Phillips had been treated unfairly by members of a civil rights commission who had made comments hostile to religion....

The hostility to religion made it easy to resolve under Free Exercise clause doctrine, but Phillips also raised a Free Speech argument. So did Lorie Smith, and, in her case, the Supreme Court granted review only on the Free Speech 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."

In the Masterpiece Cakeshop case, Professor [Dale] Carpenter filed a brief supporting the gay couple along with Eugene Volokh of the University of California, Los Angeles. But in the new case, they took Ms. Smith’s side. Professor Carpenter did so, he explained in an interview, in part because he has devoted his career to the cause of advancing gay rights.

“It seems to me that the freedom of speech has been essential to the cause of L.G.B.T. rights,” he said. “It could not have advanced without the freedoms that are secured by the First Amendment. I take these things to go hand in hand.”

Mr. Phillips’s cakes did not deserve First Amendment protection, Professor Carpenter added, but Ms. Smith’s graphics and websites do. “Cake making is neither an inherently expressive nor a traditionally expressive medium,” Professor Carpenter said. “People make cakes for taste or nutrition.”

Ugh! Phillips was a cake decorator. The designs in the icing on the outside of the cake require artistic skill and choice. It's not about the cake baking. There are distinctions between wedding cakes and websites, but it's disingenuous to say a wedding cake is made "for taste or nutrition." It's made for the way it looks and what meaning those looks convey.

"But to convince at least 10 Republicans to back the measure, [Tammy] Baldwin knew she had to overcome skepticism from many Republicans that Democrats just wanted to put them on the spot..."

"... on an issue that public opinion had recently deserted them on, as well as fierce opposition from social conservative groups and some religious institutions.... 'I think there was a short period of time where there was a belief that this was being pushed for political reasons,' Baldwin said. 'My Republican colleagues would say to me: "Nobody thinks you’re pushing this for political reasons. They think others are, like the Democratic Party. But nobody is questioning your motives." I think that’s helpful. I mean, I really am earnest about this.'..."

From "How a bipartisan group of senators got same-sex marriage protections passed/A group of Democrats and Republicans, led by Sen. Tammy Baldwin, spent months working to get 12 Republicans onboard with the legislation" (WaPo).

But Republicans had many concerns, and each one seemed different. The first wave of worry surrounded whether the legislation might be interpreted to mean the federal government recognizes polygamy....

Others wanted to know whether the bill would affect adoption agencies, or religiously affiliated colleges and universities.

And many wanted the legislation to be crystal clear that religious institutions that did not perform or support same-sex marriages would not be punished under the law....

Sen. Marco Rubio (R-Fla.) called the bill a “stupid waste of time” to a reporter in July before walking into an elevator and finding himself squished next to Baldwin. She began making her case for why the bill was necessary.... Rubio voted no on the measure on Tuesday.

One of the original five Republican senators who said publicly they’d back the bill, Sen. Ron Johnson (R-Wis.), later rescinded his support, saying its religious liberty protections did not go far enough....

Oh, Ron. But our other Wisconsin Senator led the way!

"The Senate held a key test vote on Wednesday on legislation to allow federal protections for same-sex marriage, with 12 Republicans joining all Democrats..."

"... to help move it through the 50-50 chamber. In one of their first major agenda items in the postelection session, Democrats moved fast to enact the bill — which would repeal the Defense of Marriage Act, which denied federal benefits to same-sex couples — while their party still controls both chambers. Should the bill pass the Senate in a vote that is expected after Thanksgiving, it would need to pass the House in its revised form before being sent to President Biden to be signed into law. The push in Congress to pass marriage protections came after Justice Clarence Thomas suggested in an opinion overturning abortion rights that the court 'should reconsider' past rulings that established marriage equality and access to contraception."

From "Live Updates: Senate Takes Crucial Step Toward Protecting Same-Sex Marriage Rights/Democrats are moving quickly to enact federal protections while their party still controls both chambers. Republican senators voted to keep Senator Mitch McConnell as their minority leader; the party is on the brink of capturing a majority in the House" (NYT).

Why are they only just now getting around to repealing the Defense of Marriage Act? Anyway, it's good to see this happening at long last. Maybe they didn't think they needed to do it until the Democrats lost the House, or maybe they chose not to do it so that it wouldn't be an issue in the elections. But, really, what kind of people want there to be a threat to existing marriages? 

And it's nice to see Wisconsin Senator — and former student of mine — Tammy Baldwin featured on the front page of the NYT on this issue, which I strongly support.

And thanks to all the Republicans who voted for this: Susan Collins of Maine, Rob Portman of Ohio, and Thom Tillis of North Carolina — the co-sponsors — and Lisa Murkowski and Dan Sullivan of Alaska, Cynthia Lummis of Wyoming, Mitt Romney of Utah, Richard Burr of Virginia, Roy Blunt of Missouri, Joni Ernst of Iowa, Todd Young of Indiana, and Shelley Moore Capito of West Virginia.

"Parents have hopes and dreams, right, with their kids, from the time that they’re born and they’re creeping and crawling and walking and falling over and walking again..."

"... and all the things that they learn right through their teens and into becoming adults. We have hopes and dreams. First of all, obviously, we hope right from the beginning, it’s all about having a healthy child.... It’s about them being healthy.... We’re hoping that they find their way, find opportunity, they find inspiration. And as they grow and as they get a little older, we also hope and pray they’re going to find that one true love so that they have the opportunity to experience that: Someone to grow old with. So we’re just really thankful that you’re here. It actually goes beyond that, as parents. We love it when they find their one true love, especially when they become a part of our families then. That’s what we’re rooting for. We’ve been fortunate with three sons, and [REDACTED]’s done a great job of adding to the family. Every kid showed up through cesarean section so it wasn’t all pleasant, right! So this has been a really good experience, especially for Penny, to have a new son enter the family! So we’re just blessed, and we just want to say thank you to everyone here as part of the celebration."

Said Congressman Glenn Thompson at the wedding of his son, quoted in "Listen To The Speech A Republican Lawmaker Gave At His Gay Son’s Wedding/Days After Voting Against Marriage Equality/'We’re just blessed, and we just want to say thank you to everyone here as part of the celebration,' said Rep. Glenn Thompson, three days after voting against codifying marriage equality in federal law" (BuzzFeedNews).

Thompson was "one of 157 House Republicans who voted against the Respect for Marriage Act, which acts as a failsafe in case the Supreme Court reverses itself on marriage equality." 

The name of the son who got married is redacted from Buzzfeed's transcript (and audio), so they must think there's something unseemly about intruding on the family wedding. And yet, they wanted to call out the hypocrisy. 

I'm sure Thompson is saying it's not hypocritical, because he merely declined to play along with the Democrats' political theater, and: 1. The Supreme Court is not about to overturn its same-sex marriage opinion, and 2. Questions of family law traditionally and properly are decided at the state-government level. I'm not even going to look it up. It's too obvious to spend time on.

By the way, BuzzFeeds original headline was slightly different:

See the difference? They changed "Son's Gay Wedding" to "Gay Son's Wedding." Unless you're trying to comment — awkwardly! — on the decor and the music and things like that, it's not the wedding that's gay. 

"Roe v. Wade... invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court."

"In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures 'toward liberalization of abortion statutes.' That movement for legislative change ran parallel to another law revision effort then underway — the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s. No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction."

Said Ruth Bader Ginsburg, in 1992, shortly before Bill Clinton nominated her to the Supreme Court, quoted yesterday, in Aaron Blake's WaPo column, "What Ruth Bader Ginsburg really said about Roe v. Wade."

Blake is quoting that to correct people who might think Ginsburg thought that Roe was wrong about the existence of a right to abortion. 

Although Blake included it in his quote from Ginsburg's speech, he doesn't otherwise mention no-fault divorce. Let's talk about why Ginsburg connected the no-fault divorce movement with the abortion-rights movement — and why these movements happened in the same time frame. One could say both movements pushed government out of the intimate sphere that belongs to the individual. Another way to put that was both movements served the agenda of the sexual revolution.

There's very little talk about no-fault divorce anymore, even as abortion has remained controversial all these years. What was once "ran parallel" is rarely even thought of anymore. In the 18 years of this blog — according to the search function — there isn't a single post containing the words "no-fault divorce." 

Of course, abortion is different, unavoidably different, because one can never completely leave behind the knowledge that it cuts off a human life. But abortion and no-fault divorce both minimize something big. 

Interestingly, it's the bigness of marriage that forms the basis of finding a right to same-sex marriage in Obergefell:
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. 

The lifelong union.

Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.... 

Marriage responds to the universal fear that a lonely person might call out only to find no one there.

ADDED: Abortion responds to the universal fear that a lonely person might call out and find someone there.

"It’s the main reason why I worked so hard to keep Robert Bork off the Court. It reflects his view almost — almost word — anyway."

"Look, the idea that — it concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose within the limits of the Supreme Court decision in Casey.... But even more equally as profound is the rationale used. And it would mean that every other decision relating to the notion of privacy is thrown into question. I realize this goes back a long way, but one of the debates I had with Robert Bork was whether — whether Griswold vs. Connecticut should stand as law. The state of Connecticut said that the privacy of your bedroom — you — a husband and wife or a couple could not choose to use contraception; the use of contraception was a violation of the law. If the rationale of the decision as released were to be sustained, a whole range of rights are in question.... who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions — whether or not — how you raise your child — What does this do — and does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida?"

 Said President Joe Biden yesterday.

Listen to the oral argument, starting now.


UPDATE: I listened to the entire thing. I predict stare decisis will prevail. The lawyer for the state was particularly weak in his effort to assure the Court that Roe and Casey could fall without endangering any other precedent (e.g., Obergefell). There was some effort to discover a compromise position, drawing the line somewhere other than viability, but nothing emerged. Not that I could hear on this first pass. I will probably say more when I get the transcript. 

ADDED: Thinking about Obergefell, I wanted to quote this passage from the Chief Justice's dissenting opinion:
By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Boldface added.  

That was 6 years ago. What "winds of change" are "freshening... backs" today?

In any case, the question then was whether to take something out of the political arena. The question now is whether to throw something back in after it's been out for 50 years! 

AND: On the theme of keeping the government's hands out of our body, Amy Coney Barrett brought up mandatory vaccination. 

"It is not licit to impart a blessing on relationships or partnerships, even stable, that involve sexual activity outside of marriage, as is the case of the unions between persons of the same sex."

Said the Vatican, quoted in "Vatican says it will not bless same-sex unions, calling them a 'sin'" (CNN).

The statement says that gays and lesbians, as individuals, may receive a blessing if they live according to Church teaching. But blessing same-sex unions, the Vatican said, would send a sign that the Catholic Church approves and encourages "a choice and a way of life that cannot be recognized as objectively ordered to the revealed plans of God."...

The Vatican provided the assurance that "the negative judgment on the blessing of unions of persons of the same sex does not imply a judgment on persons."

If I'm reading that correctly, there is no "objectively ordered" way to have sex other than within a marriage between opposite sex partners. 

"Parents have hopes and dreams, right, with their kids, from the time that they’re born and they’re creeping and crawling and walking and falling over and walking again..."

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