Althouse | category: same-sex marriage



a blog by Ann Althouse

"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. 

"The ability of companies such as Facebook, Twitter and Google to control what people see online is so potent, it is the subject of antitrust hearings...."

"But the decision by Amazon to push Parler off its dominant cloud-computing service illustrates just how powerful its content-moderation capabilities are as well.... [T]he companies that provide the technical infrastructure that powers websites and services where people express opinions have vast power as well, though they rarely use it. They include little-known companies that register website domains for customers; so-called content delivery networks, which can boost the speed at which webpages load; and Internet service providers, which connect homes and businesses to the Web.... [Amazon's] Amazon Web Services is the dominant provider of cloud infrastructure services, which let customers rent data storage and processing capabilities over the Web instead of running their own data centers.... [AWS's] Trust & Safety team, which has fewer than 100 workers, acts only on complaints received. In its reply to Parler’s suit, Amazon said it received reports in mid-November that the social network was 'hosting content threatening violence.'... It accused Amazon of conspiring with Twitter to take the smaller competitor offline just as it was significantly gaining users in the wake of Twitter permanently banning Trump.... 'Without AWS, Parler is finished as it has no way to get online.'" 

Here's the top-rated comment at WaPo: "If you support a baker choosing to not selling a wedding cake to a same-sex couple, then it follows you must support a company choosing not to do business with a customer that behaves in a manner contrary to the company's known parameters. As the same-sex couple was told, go find someone else to bake your cake. Parler should do the same. If they can't, perhaps it's the 'cake' they are trying to bake."

IN THE COMMENTS: MayBee takes on the cake analogy:
Parler was already on AWS. 

So the baker (aside from scale, monopoly considerations, and anti trust issues) situation would have to be more like: 

The gay couple hired the baker, paid the baker, and then on the day of the wedding the baker refused to deliver the cake. The baker, however, delivered a lot of cakes to your ex-boyfriends wedding on the same day. And then the baker announced you were dangerous.

Harvard lawprof Noah Feldman answers no to the question "Does the Supreme Court really need reform?"

"It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us [sic] gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose. In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. That could change, to be sure. But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans."

It's also worth remembering that gay rights and gay marriage — along with trans rights — could have been given through statutory law and that the Supreme Court rules on a far wider array of issues than the conspicuous gay rights and abortion issues that Feldman forefronts in this effort to ward off Court reform. If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments. 

But these are the issues that vast numbers of Americans want to think about, so it's not surprising that Feldman concentrates on them as he tries to convince liberals not to mess with the structure of the Supreme Court.

"Methodism in the United States dates to the early 1700s, with a long history of valuing local congregations over a top-down structure. It has split many times..."

"... most notably over slavery before the Civil War. Membership is varied demographically and politically, counting as adherents everyone from Hillary Clinton to Jeff Sessions.... [C]ongregations overseas are growing rapidly, particularly in Africa; there are nearly 3 million members in Tanzania and the Democratic Republic of Congo. These groups tend to be more conservative than the typical American Methodist, which in part explains the vote in St. Louis, where more than 40 percent of delegates were from outside the United States.... Though the traditionalists won the narrow vote in 2019, it is the progressives who will remain under the banner of the United Methodist Church...."

From "United Methodist Church Announces Plan to Split Over Same-Sex Marriage/Under an agreement to be voted on in May, a new 'traditionalist Methodist' denomination would continue to ban same-sex marriage and gay and lesbian clergy" (NYT).
"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..."I saw this yesterday and didn't know what had happened.

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