Same-Sex Marriage and the Law

Same-Sex Marriage and the Law

By David W. Opderbeck.  David Opderbeck is Professor of Law at Seton Hall University Law School and is a doctoral candidate in Philosophical Theology at the University of Nottingham.  He blogs at Through a Glass Darkly.

As everyone knows, the Supreme Court has finally announced its decisions in this term’s “gay marriage” cases, Hollingsworth v. Perry and United States v. Windsor. This is the second of six (I think) posts I will offer on these cases.  In my first post, I peeked at the legal machinery underlying the Hollingsworth case.  In this post and the next, I’ll do the same for the Windsor case.  Originally I had hoped to cover Windsor in one post, but I think the differences in the Justices’ various opinions are important and require more conversation.   In a fourth post, I’ll offer some thoughts on the question of Christian participation in American government and “State’s rights.”  In a fifth post, I’ll discuss some differences among Christians who support traditional marriage, particularly between Evangelicals and Catholics [note:  this will attempt to clarify my post from last week, which went up too soon].  In the final (I think!) post, I’ll volunteer some suggestions on how Christians – the Church – should respond to these two cases.  Of course, all of these are my own thoughts, not necessarily those of any educational institution or ecclesial body to which I belong.

The Windsor Majority

The Windsor case involved the constitutionality of the federal Defense of Marriage Act (“DOMA”).  Section 3 of DOMA defined “marriage” for purposes of federal law as “a legal union between one man and one woman as husband and wife,” and “spouse” to mean “only to a person of the opposite sex who is a husband or a wife.’’  One effect of this definition was that same-sex couples who had been married under State law permitting same-sex marriage could not claim certain federal law benefits available to married couples or surviving spouses, such as the federal estate tax exemption.  DOMA did not, however, prohibit States from recognizing same-sex marriages.

The case reached the court after Edith Windsor sought a tax refund for $363,053 in estate taxes paid on her inheritance from her wife (as recognized by New York law), Thea Spyer.  Windsor and Spyer were New York residents who had been lawfully married in Canada, and their marriage subsequently was recognized as valid under New York’s Marriage Equality Act.  The lower courts ruled that DOMA was unconstitutional and rendered judgment in Windsor’s favor.

As with the Hollingsworth case, there was a complicated procedural issue in Windsor because the Executive branch decided not to enforce the law in the lower courts.  However, the President limited his directive of non-enforcement of DOMA to the particular case brought by Windsor, and directed the Justice Department to continue enforcing the law in other contexts.  In addition, the lower court allowed the intervention of the Bipartisan Legal Advisory Group (“BLAG”) of the House of Representatives to defend the law’s constitutionality.

Unlike in Hollingsworth, the majority in Windsor decided that there were parties before the Court with standing and that the constitutional issue was ripe for adjudication.  According to the majority, “[t]he Government of the United States has a valid legal argument that it is injured [by its loss of estate tax revenues] even if the Executive disagrees with § 3 of DOMA.”  Further, the Court held, “BLAG’s sharp adversarial presentation of the issue satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree.”

On the merits, a majority led by Justice Kennedy and including Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that Section 3 of DOMA is unconstitutional under the equal protection clause of the Fifth Amendment.  The majority concluded that New York, as well as eleven other States that had enacted laws permitting same-sex marriage, sought to protect gay persons as a class by extending to them the right to marry.  Regulation of domestic relations, the majority noted, historically was left to the various States rather than appropriated by the federal government.  “The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees,” the majority stated, “stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”

By seeking “to injure the very class New York seeks to protect,” the majority held, the federal statute “violates basic due process and equal protection principles applicable to the Federal Government.”  In particular, the majority held that DOMA was motivated by animus against gay persons rather than by “other reasons like governmental efficiency.”  Among other things, as evidence of this animus, the majority quoted from the House Report in support of DOMA, which stated that DOMA “expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.’”

The dissenting opinions, which I’ll discuss in my next post, respond to both the procedural and substantive holdings in the majority opinion.  For now, what do you think about the majority’s discussion of State vs. Federal responsibility for law-making regarding marriage?  Do you think the Court should even have heard this case?  Is the majority’s opinion in Windsor in conflict with the majority’s opinion in Hollingsworth?

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  • Susan_G1

    I am not a lawyer, and I have trouble following all your points (more so in the Hollingsworth post). However, is there really any doubt that DOMA was motivated by animus towards gay persons? A strict interpretation of the 5th amendment gave way to a more
    generalized interpretation of substantive due process, which brought an
    end to segregation. Such generalizations don’t require much of a stretch
    to cover the rights of homosexuals under the law. Rep. Henry Hyde, Chairman of the Judiciary Committee (who apparently felt that adultery was less of a threat to marriage than gay unions), stated during the Subcommittee markup of H.R. 3396: ”[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people…feel ought to be illegitimate…. And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval…on a union that many people…think is immoral.”

    If States have the right to grant SSM, then the Federal Government does not have the right to withhold federal benefits of such an institution. I agree with Justice Kennedy’s assessment that “The avowed purpose and practical effect of the law here in question are
    to impose a disadvantage, a separate status, and so a stigma upon all
    who enter into same-sex marriages made lawful by the unquestioned
    authority of the States.”

    I remember when AIDS was fatal, and reading stories of homosexual couples in long-standing relationships, accruing assets together, one of which would suffer financial ruin when the other died. I thought this very unfair, and thought there should be legal recourse. I did not think in terms of marriage, but rather of civil unions with legal rights equivalent to marriage. I didn’t think it had anything to do with religion. Maybe I was naive. But these were denied to homosexuals, which I think was a mistake.

    While I don’t follow all of your points, I can answer one of your questions. I absolutely think the court needed to hear this case, because I think it was unconstitutional. Had section 3 of the Act been left off, that would be another matter (state rights v. federal?), about which I don’t have sufficient understanding to comment.

  • copyrightman

    (Sorry I still can’t change on Disqus from “copyrightman” to “dopderbeck” — author of the OP here…)

    Susan, great points! One of the difficulties with Kennedy’s formulation, which I’ll talk about when I review the dissents, is the question of what “animus” means and why exactly it is relevant to the law. You could say that every law that disadvantages a group in relation to another is motivated by “animus” towards the disadvantaged group.

    For example, say the federal government offers tax benefits for businesses that provide solar power and does not offer those benefits to businesses that provide coal power. Is such a law motivated by “animus” towards coal power? What if there is data showing that coal power contributes to global warming and that a clean solar energy industry would promote economic growth? What if that data is in fact thin and contested?

    In the energy tax hypo, there probably would not be any constitutional issue — certainly there wouldn’t be an equal protection clause issue. Usually for this kind of economic regulation, the court reviews the legislation merely to determine if it has some rational basis — a pretty easy test to meet.

    When legislation has a disparate impact on groups defined by inherent personal characteristics, however — such as, say, race or religion — then the court is likely to apply a heightened level of scrutiny under which the rationale for the legislation must be much stronger (“compelling government interest” is a phrase that has been used). Under heightened scrutiny, the legislature’s intent to impact a protected class simply because of those inherent characteristics is going to count against the legislation. I think that’s what Kennedy means by “animus.” But it’s rather unclear, because Kennedy never sets his opinion clearly within the context of the Court’s establishment clause jurisprudence. He doesn’t say precisely what sort of scrutiny he’s applying, and he doesn’t explain why a “moral conviction” against a kind of sexuality must necessarily constitute unconstitutional “animus” rather than a rational or even compelling reason for the legal distinction.

    So here are the “big questions” the majority opinion and the dissents raise: is a “moral conviction” against gay marriage a kind of “animus” that society should always condemn? If so, is a “moral conviction” against gay marriage only an expression of irrational “animus” that cannot possibly justify any sort of legislative distinction? Or, was Kennedy alluding to heightened scrutiny, such that, even if a “moral conviction” against gay marriage on its face is irrational “animus,” that strike against a given law could nevertheless be overcome with other justifications for legislation against gay marriage?

  • Tom F.

    Okay, your “big questions” really helped, I couldn’t really feel
    knowledgeable enough to answer the first post.

    “is a “moral conviction” against gay marriage a kind of “animus” that society should always condemn?”

    I don’t believe so. For example, I believe one of the arguments by the defenders of DOMA talked about the state having an interest in procreation. This may be a bad argument, or one that can’t be applied with consistency (as I believe Kagan pointed out, in reference to very old people asking to marry), but I don’t think it is “animus”. Or, if the government could show a clear danger to children within these marriages, they could regulate adoption/procreation within these marriages (many states pass laws that prevent parents from denying medical care to children based off of religious beliefs). I am not sure proponents of gay marriage help by defensively dismissing these out of hand as “animus”; in fact, it often gives additional credibility to these arguments, because it turns into a “he said, she said” where each side simply lines up with their own.

    Consider what would happen if it turns out that there is not a high enough bar for the government to deny the right to marry but there does turn out to be enough evidence of harm to deny the right to adopt (I don’t think this is likely, but let’s say 5 or 6 more studies like Regnerus’s come out with absolutely no controversial methodological problems and even larger effect sizes). It would certainly not be “animus” at that point for the government to prevent adoption by same-sex couples.

    But- that seems to me to be very unlikely to happen. A recent Australian study surveyed no less than 1/12 of all same sex couples with children in Australia, and found no evidence of harm. ( So, the problem is less that all arguments against same-sex marriage are based on animus, and, as I see it, more that the non-religious case has become weaker and weaker. (Heck, it used to be classified as a disorder: certainly the state could credibly claim that it was acting without “animus” then, when the majority of psychiatrists and psychologists diagnosed it as a disorder.)

  • copyrightman

    And another interesting and difficult question: what would comprise “harm” in such a study? Of course you can try to measure things like how well the children do in school, their subjective feelings of emotional well-being, interactions with peers, etc., using standard social science evaluative tools. But those sorts of tools really don’t directly address the sorts of “harm” seen by people who have religious-moral objections to gay marriage. The bottom-line “harm” for conservative Christians who object to gay marriage is that the behavior is sin that separates one from God, perhaps eternally. Most such conservative Christians will also argue that sin of this kind, at least in the long run, also leads to social-psychological harms that could be measured by social science. But that link isn’t so direct, and both scripture (hardening of the heart, why do the wicked prosper, etc) and experience suggest that many people live in blatant sin while feeling just fine about it and while succeeding in the world.

    Hopefully I can get at this in some other posts, but I think this is an important distortion introduced by the culture war litigation on this issue: secular courts cannot adjudicate claims to “harm” that are finally grounded in specifically religious / theological claims about final destiny, eternal good, etc. Courts can only consider very immanent claims of “harm” that can be measured by tools that are admissible in evidence.

  • SC

    While the court stopped short of making gay marriage a constitutional right and left in place state laws banning same-sex marriage, the 5-4 decision clearly used inflammatory civil rights language to pave the way to a constitutional civil right for gay marriage. Writing for the majority, Justice Kennedy slandered those who disagree by implying that they “disparage and injure” the “personhood and dignity” of gays and stand in “violation of the Fifth Amendment.”

    Evidently one is not capable of treating homosexual couples with respect if he believes marriage is an institution divinely intended for heterosexual unions. Do we want a society where those who believe this way about marriage must keep it to themselves or face accusations of being hateful and discriminating bigots? Does this support the promotion of tolerance and respect for a fellow human being who chooses a homosexual relationship?

    Shouldn’t there be a more rational and less divisive way to secure legal provisions of shared benefits and experiences among homosexual couples? Stop and think about the unnecessary and polarizing ways that this issue is being handled.

    For several decades, gay rights advocates have used civil rights language to defend their desire for same-sex marriage. Slowly but surely a growing percentage of society has bought into the comparison between the kind of sex people want with unalterable matters of race and gender.

    But this strategy has turned gay rights into a divisive and polarizing debate that is threatening the very respectful acceptance desired by homosexual couples.

    Why can’t we find a better way to resolve this matter without portraying those who disagree as hateful bigots who discriminate against a minority?

  • Tom F.

    “…secular courts cannot adjudicate claims to “harm” that are finally grounded in specifically religious / theological claims about final destiny, eternal good, etc.”

    Granted: but certainly no Christians are asking to deny adoption rights to Muslims because their Muslim faith makes their children (possibly) more likely to face rejection by God.

  • copyrightman

    True: I never said the legislative / litigation strategy of Christian conservatives on this issue was consistent or coherent. In fairness, though, the example you offer raises countervailing first amendment / free exercise concerns. And in fact, I think much of the current efforts of Christian conservatives on the gay marriage issue are mostly concerned with protecting churches that won’t hire gay ministers or religiously sanction gay marriages from government interference. I’ll highlight this in future posts.

  • copyrightman

    SC — I understand where you’re coming from, but are you just buying into the same paradigm by accusing Justice Kennedy of “slander?” Isn’t the heart of the debate precisely whether homosexuality is, like race, an inherent characteristic that invokes “personhood and dignity” concerns? How may times have you heard religious people or other social conservatives refer to “the homosexual agenda” in apocalyptic (sometimes expressly apocalyptic!) terms, as though gay people are the enemy in a vast conspiracy against the Church? How does this rhetoric compare to polemics in Church history concerning blacks, Jews, Muslims, or, depending on your affiliation, protestants,
    Roman Catholics, Baptists, Anabaptists…

    I’m going to do a separate post on this, because I’m still working it out for myself, but: the rhetoric against gays today in the Church often is uncomfortably close to rhetoric in years past concerning black slaves, Jews, etc. I still believe there are important differences and my view of “marriage” is “traditional.” However, the comparison particularly to the antebellum pro-slavery churches in the South gives me great pause.

  • Tom F.

    Bah, I had a bigger edit that was much more nuanced that didn’t get saved. Yeah, as I was thinking about it, that example (Muslim adoption) is an imperfect analogy, because, as you point out, Muslim is completely unambiguous as protected by the first amendment.

  • Tom F.

    Also, I agree, I think protecting churches is quite important. Churches should not be forced to hire people who disagree with the moral teachings of that church. I am a lot more confident about that point than I am about the homosexuality debate in general.

  • Jeremy B.

    He’ll get to it later, I’m sure, but religious organizations can legally discriminate at will, including against classes protected against that sort of thing for decades. Don’t want to hire a woman or perform a bi-racial marriage? No problem.

  • copyrightman

    Mostly true, as the Hosanna-Tabor “ministerial exception” case decided last term makes clear. But — just being a religious organization doesn’t allow for absolute trampling on legally protected rights, of course. A Priest who sexually abuses children, for example, can be subject to criminal prosecution and civil tort damages. The Hosanna-Tabor opinion concludes on this note: “We express no view on whether the [ministerial] exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise”

  • Jeremy B.

    Thanks for nuancing that. I meant it in the narrow focus being discussed. Do you think the bigger and probably more realistic concern is the effect on para-church organizations that I don’t think necessarily enjoy the same legal protections (e.g. Catholic hospitals and charities during the recent birth control hoopla)?

    Also, have you tried clicking the little gear at the top of the comment section, choosing “edit settings,” clicking the “profile” tab and changing your display name there? Caveat being that it does it Disqus wide.

  • copyrightman

    That is a concern, for sure. I think there also is a concern, not entirely unrealistic, that Hosanna-Tabor might get overruled or qualified away. It all comes back to an age-old tension: what is the authority of the State in regard to the authority of the Church(es) when the values of State and Church don’t align?

  • SC

    Whether one claims to be heterosexual or homosexual in orientation, the desires and actions associated with orientation must be treated as willful choices capable of restraint. Otherwise one cannot speak of actions like adultery, rape or incest as culpable moral behaviors.

    While we surely cannot tell a person of race to restrain or stop being Asian or African-American (anymore than we can tell a woman to stop being female), we must require people of both heterosexual and homosexual orientation to restrain and control their sexual behavior under threat of legal punishments for wrongful expressions of it. If a society intends on making laws regarding sexual actions, sexuality (whatever orientation one claims) must be treated as a chosen behavior.

    Yes, in our political system, I firmly reject unlawful and evil treatment of those who identify themselves as oriented toward homosexuality. Sadly, we have witnessed far too much cruelty toward people based on a variety of differences. This is where there are some legitimate comparisons between the way homosexuals and people of certain races have been wrongly treated. But why can’t these matters be addressed without making an area of behavior comparable with one’s unchangeable nature?

    The path currently sought by radical homosexual activists (and we cannot pretend that such people do not exist) is to force all of society to see things their way or face severe legal consequences. They are already attacking the religious and moral freedoms of Americans with this agenda in a number of places and we are only seeing the beginning. Anyone who tells you that this approach will never threaten religious liberty is lying to you. If this becomes a matter of civil rights with the full force of federal law behind it, churches throughout this nation will be attacked with the strong-arm of law if they fail to offer full endorsement of gay marriage.

  • Susan_G1

    your arguments here are good examples of why LGBTs need protection under the law. First, sexual orientation does not appear to be a choice for the majority of LGBT, any more than eye color. Is homosexual intercourse under your definition something that should be restrained and controlled? If so, why?

    Second, can you give me concrete examples of ways “(t)hey are already attacking the religious and moral freedoms of
    Americans with this agenda in a number of places and we are only seeing the beginning” ?


  • Tom F.

    Yes, along with Susan, I would also like to hear about the ways “radical activists” are attacking “religious freedom”.

    What do you envision the “full force of the law” being, specifically? (Arrests? Fines? Loss of special status?)

  • Susan_G1

    I agree “animus” was not defined by Kennedy. But aren’t we back pedaling if we try to say we weren’t showing clear animus in 1994 when the Republicans were making this a presidential campaign issue? I ‘think’ Kennedy alluded to heightened scrutiny. I am not opposed to legalization against gay marriage on a state by state basis if compelling cases could be made against it. Gays seeking the protection of marriage could move to states affording that protection.

    I truly do not believe that reputable studies show harm of children when raised by SS couples. Therefore, attempts to prevent such couples from adoption (and why stop there? Why not prevent them from procreation?) are, indeed, based in animus.

  • copyrightman

    SC, “must be treated as willful choices” is just begging the question of whether and to what extent it is a choice and whether and to what it extent it is either morally wrong or harmful to society. Rape and incest are different because they don’t involve consent. I don’t think too many people would support criminalizing adultery, though it still can have consequences in family law (e.g. in a divorce). Likewise we wouldn’t want to try to criminalize all instances of, say, pride or discord (which are among the seven deadly sins), even though the law includes many principles that try to mitigate pride and discord (e.g., the common law of unfair competition).

    Don’t get me wrong — I think the law can, and should, and always does, inculcate moral values. But I want to be clear about just what those values are, where they come from, how they are justified, and just how, whether and when they get instantiated in positive law in a pluralistic democracy in which not everyone agrees on every moral value. I think Kennedy’s opinion is deeply problematic in this regard, because he seems to assume that only “social science” is relevant. Unfortunately, I think traditional marriage advocates boxed themselves into the very same framework by advancing basically consequentialist arguments in the guise of the new natural law reasoning in an effort to meet the “neutral” standards of evidence of the secular courts and thereby to influence society from the top down. I don’t think you can unpack “marriage” without also unpacking “Trinity,” “creation,” and “covenant.” “Marriage” is first and last a theological category, and it was and is a mistake, IMHO, to make so much ride on secular legal definitions. But more on that in later posts…

  • SC

    You asked, ” Is homosexual intercourse under your definition something that should be restrained and controlled? If so, why?” What is we replaced it with “heterosexual intercourse”? The answer would be the same. In some cases, yes; in others, no. It depends on what the law forbids. Intercourse with children and against the will of the other person are rightly forbidden on both accounts. My point is that this is the way law treats certain kinds of sexual conduct. I could argue that the “born gay” theory is simply beyond the proof of hard science but tracing origins of sexual orientation is not as big an issue as some would like to make it.

    Now as to concrete examples of attacks on religious freedom, this is one of those “where should I start?’ issues. We could look at many examples in Canada but we have our share in the US where businesses and individuals are being sued for following their moral and religious convictions under the accusation of discrimination against gays . Cases in NJ and a recent one in Colorado are easily found (as many others) with any search engine.

    Finally, let me put it this way, if my Church of which I am senior pastor, refused a black family for membership because of the color of their skin, this would be the kind of wrongful discrimination that injures someone for who they are by nature. Are we prepared to make the kind of sex people want equal with this and punishable under federal law on the same level. I hope not because this would open civil and legal chaos across the nation. Those who say it would never effect churches in this way are either patronizing, lying or truly deceived.

  • Tom F.

    Is this your New Jersey one?:

    Ocean Grove Camp Meeting Association (2007): The church group refused to let a same-sex couple hold a civil union at its boardwalk pavilion, and when the couple filed a complaint, a judge ruled in their favor and the pavilion ultimately lost its tax exemption. The key detail conservatives leave out is that its tax exemption was not based on its religious affiliation, but on a Green Acres real-estate tax exemption for conservation and recreation purposes. The New Jersey Civil Rights Division upheld the judge’s decision in the case, and since losing, the pavilion has re-obtained tax-exempt status through the group’s religious identity.

    And this your Colorado one?

    Masterpiece Cakes in Lakewood, Colorado refused wedding cakes to multiple same-sex couples, though follow-up test calls revealed it would accommodate a cake for a dog wedding. The state attorney general has filed a complaint against the shop for violating the state’s nondiscrimination laws.

    Both of these cases seem to involve businesses, not churches, no? When it comes to individuals/businesses and not churches, than things are different.

    Let me ask you this: would you want it to be lawful for a gay baker to refuse to bake for a straight wedding? Or what about a gay landlord that refused to rent you the perfect place because you are in a straight marriage. I would want all of those things to be illegal, and so I would want the opposite discrimination to be illegal as well. Maybe you would be okay with all of those being legal, but I’m not.

  • Susan_G1

    1) you answer a specific request for information by saying it’s out there to google. That’s not a good answer.

    2) ” I could argue that the “born gay” theory is simply beyond the proof of hard science but tracing origins of sexual orientation is not as big an issue as some would like to make it.” Why do you simplify an incredibly difficult issue like this? How simple is it? You might believe it is just a deviant choice. Perhaps you can explain why young children would make such a deviant choice? For I know many homosexuals who would give anything (especially Christians) to be straight. I think you will find in the not so distant future that homosexuality is partly genetic. What will you say then?

    3) Finally, there is no true, reliable indication that homosexuals can force congregations to marry or accept them into membership. I think this is a fear-based smear tactic.

  • SC

    Is someone free to have moral convictions against homosexual behavior that shapes how they conduct business and other decisions? This is where the conversations usually turns to false comparisons of race and gender with sexual preferences. Let’s be honest. If being gay is exactly the same as one’s race or gender than Churches should not be permitted (and will not be if given full civil rights status) to refuse membership to gays. But the “If” is far from established. This does not mean that one cannot be born with inclinations toward SS orientation. But desires and inclinations should not be used to define personhood at the level of race and gender.

  • SC

    I am certainly not equating rape and incest with consensual adult sex. I am simply saying that we treat sexual behavior differently from unchangeable matters of nature and we even punish certain kinds of sexual behavior.

    The goal of many gay activists is to have the public bow before the sexual preferences of (at the very most) 3-4 percent of the population. If successful, people will not be permitted to teach the historical view of our nation and the view Jesus taught that marriage is meant to be a gift from God between a man and a woman (Matthew 19:4-6). Those who choose this view, will be forced into public silence and unable to act on it in any way that could be accused as discrimination. There has to be a better way to resolve this matter.

  • SC

    The hateful name-calling and scornful ad hominem launched against those who oppose gay marriage is a violation of the kind of civil and rational debate we should follow in democratic process. It’s also manipulation of the worst kind. If you oppose gay marriage you’re told that you have irrational phobias; you’re a hate-monger, a bigot, and guilty of discrimination. Why do people allow this kind of school yard bullying?

    Teaching people to treat each other with respect is a much better alternative to forced affirmation. Tolerance is about treating others with respect when you disagree with them. Telling people they’re not permitted to disagree is coercion, not tolerance.

    It’s ironic how the intolerance and bigotry that was once wrongly shown toward people who chose a gay lifestyle is now aimed at anyone who dares to oppose homosexual behavior.

  • Tom F.

    Where did I transition into race and gender comparisons?

    “Is someone free to have moral convictions against homosexual behavior that shapes how they conduct business and other decisions?”

    Is someone free to have moral convictions against straight marriage that shapes how they conduct business and other decisions? (that is, can gay people discriminate against straight people).

    All you have to do is say that gay people discriminating against straight people is okay, and while I will respectfully disagree, I will grant you your consistency.

  • copyrightman

    Re: the “gay wedding cake” case — I read a bit about it. It does concern me that such a case would be brought under the circumstances as I understand them. OTOH, I feel that the conservative reaction to it was quite overblown. The fact is that the law can, and often does, require you to set aside some moral / religious convictions if you want to engage in a certain kind of business. If you own a restaurant and you have a moral / religious belief that black people are inferior to whites — as almost all white Christians did prior to the Civil War — you can’t have a “whites only” counter. State and federal anti-discrimination laws prohibit it. If that is really your conviction, find another line of work.

    Now, we may or may not want to say the same thing to a baker who doesn’t want to sell wedding cakes to gay couples, but that, it seems to me, is a question for the democratic process. There is no reason in principle why the law couldn’t impose such requirements on wedding cake sellers.

  • attytjj466

    The big picture take away to me was that SCOTUS found a way to strike down DOMA under the 5th Amendment without finding same sex marriage to be a fundamental right, thus preserving the issue as a states issue, for states to decide and define, for now at least, and not making it federal law mandate (the so called 50 state solution) that same sex marriage is a protected fundamental right no state may deny. The Court accomplished this by using Federalism/states rights (state same sex marriage laws) to create a liberty interest that triggered heightened scrutiny under the 5th Amendment of the federal law DOMA. Something I don’t think SCOTUS has ever done before. The ruling strikes me as an incremental step toward a later ruling which will find same sex marriage as a fundamental right, when SCOTUS decides the U.S. is ready for that decision (contrary to what SCOTUS did with the Rowe v. Wade decision in 1973). I think the Court is corrrect in seeing that such is the direction the U.S. is going. And I have no doubt that same sex marriage will before too long be a federal fundamental right. If the Court is going to get there regardless, I agree the incremental approach is the best way to go (let the issue reach a tipping point on the state level first). So while I agree with Scalia in what he sees as the implications of the ruling, I agree with the majority that a step by step approach to getting there is best. And that is what this decision represents IMHO.

  • Tom F.

    I agree, and I think my main point to SC was about consistency: would he be okay with experiencing discrimination as a straight person, say, in certain districts of San Francisco, where he would be a minority. If we allow straight persons to discriminate against gay persons, than certainly we should allow gay persons to discriminate against straight persons, no?

  • Phil Miller

    All you have to do is say that gay people discriminating against straight people is okay, and while I will respectfully disagree, I will grant you your consistency.

    I personally wouldn’t have a problem with a gay baker choosing not to provide services for a straight couple. The issue of whether businesses must provide services to everyone who comes through their doors get grey very quickly. I’m in the consulting engineering business, and I can think of any number of reasons why I would refuse to do business with a potential client. It may just come to a gut feeling that I don’t think the project will be worth my time. Is that discrimination? I don’t think so.

    But what if the client was something like gay-oriented store or something… They may come back and say that I’m discriminating against them even though my reasoning for not wanting to do business with them had nothing to do with that. This is why I get nervous when I hear about cases like the gay wedding cake one.

  • Tom F.

    SC, who has said these things to you here? I don’t see any name calling here. I see posts where courtesy has been given, and although the conversation has gotten somewhat heated, this post has been a paragon of manners compared to many forums on the internet.

  • Tom F.

    Okay, well, point taken- some will find the possibility of reverse discrimination tolerable.

    The spurious lawsuits thing is legitimate. But I wonder if this could be addressed simply at the level of the burden of proof level, by making sure that burden is balanced so as to not create undue lawsuits while still reasonably protecting everyone from discrimination.

    I worry still, though. Okay, so bakers are allowed an exemption, then. What about hotel owners? Only honeymoons to certain kinds of couples? What about retail stores? Only gift registries to certain kinds of couples? What about banquet halls?

    Once you have exempted the entire wedding industry from anti-discrimination laws, how could one reasonably argue that landlords shouldn’t receive the ability to discriminate? People involved in a wedding who object to same-sex marriage are only involved for a time, landlords have to overlook their objections for months or years. Couldn’t you argue that the damage to landlord’s consciences/religious expression is much larger than for those who only have to bake a wedding cake?

    Additionally, there is significant social science evidence that your “gut feeling” in doing business is likely to be slanted against minorities due to stereotypes and our preference for people similar to ourselves. Your “gut feelings” also likely not reliable in hiring or business selection anyway, and may be costing you good business, as well as saddling you with bad business.

    For example, here’s a study on how stereotypes disadvantage obese people:

    Here’s one that shows that shows how employers unconsciously discriminate against women and older people:

    I could go on, but you can’t swing a dead cat in social psych without hitting a study about how bad our “gut feelings” are in hiring, and it seems a small jump to choice of business partner/customer.

  • Phil Miller

    That’s the thing. It’s hard to know where to draw the line. Personally, I kind of feel that now we are at a place where the market will take care of these sort of things. If I were in the baking business, I’d probably start advertising to gay couples right now, actually! There’s going to be a boom in business soon.

    I understand there are some areas in the country where certain businesses have virtual monopolies on certain services, and that makes it harder. But, really, if you know a business owner hates you that much why would you want to give him your business anyway? It’s a two-way street.

  • SC

    Do you agree however with the point that, “Teaching people to treat each other with respect is a much better alternative to forced affirmation. Tolerance is about treating others with respect when you disagree with them. Telling people they’re not permitted to disagree is coercion, not tolerance.

    It’s ironic how the intolerance and bigotry that was once wrongly shown toward people who chose a gay lifestyle is now aimed at anyone who dares to oppose homosexual behavior.”?

  • Tom F.

    Sure, SC. I think I could get behind that. Of course, if “permission to disagree” means permission to discriminate (outside of churches), I think I’ve put why I think that would be a bad thing, whether it is heterosexuals or homosexuals who are on the receiving end of that discrimination.

    You are, however, free to disagree. 🙂