Supreme Court strikes down key argument of same-sex marriage foes

I have two envelopes. The first is labeled, “To an Honest Man Who Argued in Good Faith and Was Truly Afraid.” The second is labeled, “To a Dishonest Man Who Has Been Lying Deliberately and Who Will Say Anything in Pursuit of Power.”

I am not sure if I will need to use the first envelope.

* * * * * * * * *

In an 8-1 decision announced Wednesday the Supreme Court of the United States overwhelmingly struck down a fundamental argument repeatedly made by opponents of same-sex marriage.

The high court’s sweeping decision in the strange case of Snyder v. Phelps can thus be seen as a victory for advocates of legal equality for gays, lesbians, bisexuals and transgendered persons.

At the same time, this decision sweeps away one of the central fears of opponents of such legal equality, and so it can also be seen as good news for the politically conservative religious groups who have been in the vanguard of the fight to ensure that GLBT people not be granted equality under the law. The decision proves that their fears are unfounded.

That reassurance must be seen as good news, right? I mean, if you’ve spent years warning against a coming calamity, and then find out that this calamity isn’t real and isn’t coming and isn’t anything to be afraid of — that’s good news, isn’t it?

The downside to all of this is that the “Phelps” in Snyder v. Phelps is Fred Phelps and his reprehensible clan of Phelpses who, collectively, make up the incestuous Westboro Baptist Church. Better known as the “God Hates Fags” people.

Phelps and his followers/children have, for decades, made it their mission to preach hate. It’s hard to know whether this is a genuine religious belief based, as Phelps claims, on the litany of biblical proof-texts he treasures that proclaim God’s “hatred” for one group or another, or if this is nothing but a cynical con, a variation of a slip-and-fall scam in which Phelps & Co. deliberately provoke violent responses, allowing them to sue and settle and move on to the next mark. I suspect it’s some combination of both.

In any case, Fred Phelps and his followers have spent years shouting odious, vile things at vulnerable people. The Westboro grifters particularly like picketing at funerals where people are in mourning and nerves are raw. They started out with the funerals of AIDS victims, branching out to picket the funeral of Matthew Shepard, the college student beaten to death in Laramie, Wyo., because he was gay. And since then they’ve moved on to any prominent funeral they can think of, hundreds of them — military funerals, funerals for police officers, funerals for the victims of high profile incidents or accidents.

One of those funerals was the 2006 service in Westminster, Md., for Marine Lance Cpl. Matthew Snyder. Albert Snyder, the late soldier’s father, sued Phelps and Westboro for damages. That lawsuit became the Supreme Court decision of Snyder v. Phelps handed down yesterday.

Here’s a summary from Robert Barnes of The Washington Post:

The First Amendment protects a fringe church’s anti-gay protests at military funerals, a nearly unanimous Supreme Court ruled Wednesday in a powerful opinion that spoke to the nation’s tolerance for even hateful public speech.

The court’s most liberal and most conservative justices joined in a decision likely to define the term. It writes a new chapter in the court’s findings that freedom of speech is so central to the nation that it protects cruel and unpopular protests — even, in this case, at the moment of a family’s most profound grief.

Chief Justice John G. Roberts Jr. wrote that Westboro Baptist Church’s picketing at fallen soldiers’ funerals “is certainly hurtful and its contribution to public discourse may be negligible.” But he said the reaction may not be “punishing the speaker.”

“As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.

The court sided with a group on the outskirts of American life: a tiny family church in Topeka, Kan., that has drawn disdain across the nation for its protests of military funerals and its lewd signs proclaiming God’s hatred. Its message is that military deaths — and virtually any natural disaster — are divine punishment for the country’s tolerance of homosexuality.

The court’s decision was upsetting to the families of soldiers and veterans, but it was also unsurprising. The law here is unambiguous. The First Amendment guarantee of free speech cannot be restrained or limited or qualified just because the speaker is a hateful, vicious bigot and one of the vilest excuses for a human being ever to slither out from under a rock. Fred Phelps is despicable, his views are despicable and his deliberate choice of venue for expressing those views is despicable. But that doesn’t change the law.

This has always been true. The Supreme Court did not make new law in Snyder v. Phelps. The justices simply reaffirmed that the law is the law is the law. The right to free speech cannot be abridged, even for the most pernicious antigay bigot the nation has ever produced. The right to the free exercise of religion cannot be abridged, even for those whose religion is nothing more than an unending stream of hateful, bigoted provocations. The Supreme Court reaffirmed that yesterday, but the very existence and the disgusting “ministry” of Fred Phelps and his Westboro Baptist Church have been reaffirming this every day for decades.

And yet — despite the extravagant freedoms that Phelps has enjoyed for decades and despite the extremity of his bigotry and hatefulness — we have for years heard opponents of legal equality for GLBT folks argue that any legal protections for them would result in legal restrictions against us. It’s an odd argument that, again, seems to view rights as a zero-sum power struggle. But whether the subject was the right to same-sex marriage, or legal protection against workplace discrimination, or even legal protection against the violent threats, intimidation and terrorism of hate crimes, these opponents have presented the same argument. Those legal protections for GLBT people, the argument said, would somehow erode the free speech and free exercise rights of religious conservatives. Somehow.

This argument has been the central focus of the National Organization for Marriage’s lobbying effort to bar same-sex couples from marrying. NOM warns of a “Gathering Storm” in which pastors will be dragged from their pulpits and imprisoned for preaching sermons condemning homosexuality as a sin. They suggest that conservative churches will somehow be forced to consecrate same-sex marriages or to hire openly gay Sunday school teachers. I receive regular alarmist e-mail “alerts” from Tony Perkins of the Family Research Council in which he warns that efforts to grant GLBT people the same legal protections enjoyed by everyone else are really a stealth campaign to “silence” Christians, to take away the freedom of speech of the persecuted majority.

Maybe they’re sincere. Maybe Perkins and the folks at NOM and all of these other religious right groups who have for years been arguing that GLBT rights threaten their own are really, truly, honestly afraid this is true. Maybe they were unaware that these fears were unfounded. Maybe they simply did not realize that this whole line of argument was nonsense.

If that’s the case, the Supreme Court’s decision yesterday should settle the matter. Now they know. The highest court in the land has proclaimed that they do not need to be afraid of the thing they have been arguing they are afraid of. No one needs to be afraid of this. Such fear is unfounded and irrational and any arguments based on such fear would be unfounded and irrational.

I say that this Supreme Court decision should settle the matter. It will be interesting to see if it does.

If these groups have been arguing in good faith all along, then they will be gladdened by yesterday’s decision. They will be happy to learn that they need not fear any abridgment of their rights to free speech and the free exercise of religion just because they believe that homosexuality is a sin. They will be joyously and genuinely relieved to see this confirmed, unambiguously, by the highest court in the land. And they will stop making this argument, stop spinning scary scenarios of pastors getting arrested by the Gay Police, stop arguing that legal protections for others must entail a loss of legal protections for them.

But I don’t think they will stop making this argument.

* * * * * * * * *

I have two envelopes. The first is labeled, “To an Honest Man Who Argued in Good Faith and Was Truly Afraid.” The second is labeled, “To a Dishonest Man Who Has Been Lying Deliberately and Who Will Say Anything in Pursuit of Power.”

I am not sure if I will need to use the first envelope.

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  • tf

    You said yourself on your blog that homeschooling is just not allowed in Germany. Period. It has nothing to do with sex-ed classes. But you are insinuating here that taking their kids out of the classes is the reason why Germany jailed those parents. Never mind the fact they were lawbreakers, and that generally, lawbreakers are punished. Now whether Germany is right or wrong for denying parents the ability to homeschool is not the discussion here. But while we’re at it, the majority there agrees with the government, and therefore the government’s law about homeschooling. I thought you liked it when the majority views are upheld by the government? Isn’t that what you want to happen in the USA?

  • tf

    The only disordered sexual desires I’ve ever heard of are the ones that hurt someone in some way. Like, I dunno, the rampant pedophilia in the beloved Catholic Church. The Catholic church knowingly hid harmful behavior of its own for how long? Still does? I should think Catholics would be used to saying “disordered sexual desires” are okay, since they let their priests get away with far worse things. But I guess it’s not their favorite, pet perversion, so it must be bad. It has been proven time and again that homosexuality in itself is not disordered or harmful. Yet somehow love between two grown consenting adults is considered bad and disordered, and it’s still okay for priests to rape un-consenting children?

  • tf

    Homosexuality is just as wrong as tattoos or saying or thinking expletives. Either in the Bible or in nature. Do you put up this much fervor on tattoo discussion forums? Do you refuse people’s right to marry or have kids if they ever use expletives? How about all those people who mistreat their slaves? Golly, they need to be punished! But I don’t see any church in this country fighting the rampant human trafficking in the USA. I should think that ignoring the 10k+ girls being used as sex slaves in this country is much more harmful than two consenting, happy adults making their lives together, no matter their gender or beliefs. Yet churches don’t even go after them for mistreating their slaves, much less for having slaves in the first place.

    No one can force you to teach or not teach your children anything in this country, for better or for worse. That’s what this whole thread started on, btw. People like you or I, or like Phelps, can teach your children all sorts of harmful things. But you cannot adopt someone else’s child through the US government and raise them in a way that might harm that child. That includes well-intended “morality” that ends up hurting the child more than helping. It used to be okay for well-meaning parents to place what was basically torture devices on their child’s private, sensitive areas in order to prevent any accidental pleasuring. Should we go back to making that legal? Isn’t that coercing the State’s view? What about parents who don’t believe in medical care? Shouldn’t they be allowed to let their children die because of the parent’s beliefs? I’m pretty sure that most of the country has already agreed no, but it’s because of people like you that our country still has not signed the Convention of the Human Rights of a Child. Because you think that a child is somehow your property and not their own, spiritual, being.

    I apologize for rambling, to those with desire for logic. I’m typing while on the phone. x)

  • Rebecca

    Re: the photographer thing. It’s important to note these things:

    a) Same-sex marriage has not been legalized in New Mexico. The case is not an example of the consequences of marriage equality.

    b) Photographers can and do refuse clients all the time. You’re busy the day someone wants you to photograph their wedding? No problem. You’re not forced to. But that’s not what happened here. Huguenin made a point of telling the clients that she was going to discriminate against them, and the clients (and the state’s Human Rights Commission) called her bluff.

  • Anonymous

    Look at how awful threading can make a conversation. Seriously, this is just 12 or so replies deep and you can’t read this comment.

    Threading MUST die!

  • Anonymous

    @ Rebecca: I’m curious about one aspect of the photographer’s case. I know that I, personally, would likely find a conservative evangelical wedding triggering of my PTSD. If I were a wedding photographer, I wonder, would I be able to refuse to photograph such a wedding on those grounds? I’m guessing not, and I’m not sure how I feel about that.

    On the one hand, people of all religions and sexual orientations deserve to have equal access to services such as wedding photography, and allowing photographers to discriminate based on religion or sexual orientation prevents that. Perhaps if I were a wedding photographer, it would be morally necessary for me to photograph the conservative evangelical wedding anyway despite my discomfort; it would, however, be difficult to photograph well if I were crying. Maybe it would be morally incumbent on me to change my field of employment to something other than wedding photography, so that I would not have to turn down some clients for fear of triggering.


  • @kisekileia (and my apologies if I spelled your name wrong):

    @ Rebecca: I’m curious about one aspect of the photographer’s case. I know that I, personally, would likely find a conservative evangelical wedding triggering of my PTSD. If I were a wedding photographer, I wonder, would I be able to refuse to photograph such a wedding on those grounds? I’m guessing not, and I’m not sure how I feel about that.

    First, let me say that I’m extremely sympathetic to the thought of finding yourself in a triggering situation. Let me also say that this case stirred up a lot of mixed feelings and controversy over on BTB, where many of the gay contributors actually had some level of sympathy for the photographer. Many felt that the New Mexico law should be rewritten to exclude small businesses that only had one or some small number of employees, much like how certain laws governing employment don’t apply to or aren’t as strictly enforced when it comes to such small businesses.

    So there is no easy answer to the question. One such response might simply be to offer a different excuse (such as indicating your busy) when turning down the job. (Remember, the only reason that the New Mexico company was able to sue was because the photographer accepted the job, discovered its nature, and turned it down while explicitly stating why she was turning it down.) Of course, you’d have to decide if you’re comfortable coming up with an excuse (and what excuses you are comfortable with) to determine if this approach would work for you.

    Of course, I’ll also note that recommending a colleague who could cover the wedding would probably go a long way in smoothing over any such situation where one might turn down such a gig. ;)

  • Anonymous

    @JarredH: First, you spelled my name correctly, and thank you for making the effort to do so. I find it interesting that everyone who’s written it in my short time on Slacktivist has spelled it right, whereas people usually get it wrong in LJ communities.

    I think that were I in the situation of being a wedding photographer with a legal prohibition on discriminating on the basis of religion asked to cover a conservative evangelical wedding, I would probably try to come up with an excuse other than, “Your style of worship and some of your religious ideas are triggering to me.” I’m not a very good liar, though, so it might be difficult.

    I would certainly have no problem with recommending a colleague who could cover an evangelical wedding, and I think you’re right that that would help smooth over the situation.

  • Socks of Sullenness

    Kisekileia: Maybe it would be morally incumbent on me to change my field of employment to something other than wedding photography, so that I would not have to turn down some clients for fear of triggering.

    I am doubtful about whether a private business needs to accept every commission offered, or to offer a reason why not (particularly a small private business which is in a field with adequate competition…) If you refrain from saying why you cannot accept, can anyone actually try to force you to go and photograph their wedding?

    It would be more difficult if you were employed – say as a newpaper photographer, or an official registrar of marriages – and wished to get out of attending Evangelical weddings, while happily accepting orders to photograph/register other weddings. Then, like the pharmacist with objections to contraception, or the tobaccanist who refuses to sell cigarettes, you might need to change your job.

  • Lori

    I am doubtful about whether a private business needs to accept every commission offered, or to offer a reason why not (particularly a small private business which is in a field with adequate competition…) If you refrain from saying why you cannot accept, can anyone actually try to force you to go and photograph their wedding?

    This is absolutely true. My ex runs his own small business and periodically someone in his industry will get their undies in a bunch about non-discrimination rules interfering with their FREEDOM and blah, blah, blah.

    G has a very rude hand gesture he makes in response to that. First because he’s not a bigot and second because it’s dumb. Anyone who can’t find a way to turn down a job or not hire an applicant without running afoul of protected class issues is either purposely being an ass (which was the issue with the wedding photographer) or is dumb as a stump.

    I was initially somewhat sympathetic to the photographers plight. I wouldn’t want to be forced to work one of those RTC weddings where they talk more about Jesus than they do about the people getting married and the little woman promises to be a dutiful appendage to her new lord & master. My sympathy evaporated when I read about the fact that she’d deliberately announced her bigotry in order to make a point. She made her point, she paid the price and that’s on her.

  • Ursula L

    Okay, then I am more in tune with this ruling. Any argument that held a funeral to be a public event barely different from, say, a game of hackey sack in the park would be missing the point in a big way.

    It seems different, however, in that they are picketing military funerals. The ceremony includes political ritual (such as the use of flags) and the government sends representatives (honor guards, etc.) to participate. When government action is involved, that makes it a public and political event in the way that a purely private funeral isn’t.

    Add that these are funerals of people who died carrying out governmental policy, and you have a very political and public event. It’s more public than a mere game of hackey sack in the park, as the government is involved at every level, from setting the policies that led to the death to facilitating and participating in the funeral itself.

  • Shadsie

    Maybe this kind of thing would work… if we shipped the family off to some uninhabited island somewhere. Let them have their little “constitition” and say “If nothing bad happens to your island EVER while you and your progeny reign, you’ve prooven us sinners right.” Maybe also on the condition that they give up their children – the kids of the group need to be rescued, I think. Tell them that once they’re on the island, they can make more.

    Though, I don’t think we’d even get to see their first hurricane or earthquake – they’ll tear each other apart far sooner than that, in the absence of anyone else to hate.

  • Anonymous

    Unless you’re the governor of Alabama, in which case we have different daddies and that’s not cool. It’s okay, though; I might be Alabamian, but I sure don’t want to be related to that guy.

  • swarf thrum

    Yes, they should change the name- to terrorism. Terrorism is usually political and hate crimes cultural, but they’re the same thing.

  • Anonymous

    You sure do like to pretend that you’re persecuted, Mr. Pladams.

    First you claim that allowing SSM would mean the state would restrict your freedom. Now you’re claiming that SSM means the state can tell you what you teach your kids? Do you have ANY proof of this that didn’t come from a scare tactic fundraising email?

  • Anonymous

    You have no proof of that but what your religion says. Make that claim again when you have actual proof, not “Oh, no! Society isn’t cowing to what I think is right!”

  • Anonymous

    There’s probably no point in replying to this but Pladams, I live in MA and followed this case very closely. You are either totally mistaken about the history and implication of the MA court ruling and the Catholic Charities case or you are lying. I’m sorry to be so direct about this but there really is a very sharp divide, a chasm, between telling the truth about something and telling falsehoods. There’s no point linking to any of the reams of evidence that you have totally misrepresented the Catholic Charities case since you are determined to prove your point with falsehoods. But I think its worth calling you out on this directly. It is a lie that Catholic Charities was forced to go out of the adoption business. They chose–over the objections of their own board, in fact–to refuse public funding and to cease offering their publicly funded services to the neediest and most vulnerable. They couldn’t make up the difference and go into the private adoption business because the hierarchy had squandered a fortune paying off victims of the various sex abuse scandals. Or out of spite. But once again Catholic Charity’s own board of directors tried to prevent CC from doing this.

  • tf

    Who it harms is exactly the question that needs to be asked, and the only one. Even just looking at the results of “abstinence only” education and “purity pledges,” we can tell that Christian “sexual morality” does nothing in preventing harm, spiritually or physically. Actually, it did the exact opposite – teens who sign purity pledges or got abstinence-only education are far more likely to get pregnant out of wedlock and to get STDs.

  • Tom k

    This is not true although it IS the story that homophobes with “traditional Christian views on sex and marriage” have been putting about. The couple withdrew their own application and sought to have the court rule that the council could not consider whether their homophobia might harm the child when making their decision. The court rightly said that no facts could be ignored when considering the welfare of the child – no matter whether they were religious in nature. The couple are still welcome to apply to foster as no decision on their suitability was reached.

  • Anonymous

    I find it quite amusing that you claim these cases ‘multiply daily’, yet I can’t help but notice that I saw 3 of the 4 examples on a gay-rights activist’s blog at least half a year ago, complete with debunking. (I see the other posters already mentioned the counter arguments) Using examples that were debunked that long ago (even if you disagree with the debunking) does not scream “cases multiplying daily”.

    As an inhabitant of a country with same-sex marriage laws (The Netherlands), the last conflict about it was a year ago, during the carnival celebrations that were held in cooperation with a Catholic church. The church refused the holy communion to the Prince Carnival (kinda like the prom queen, but selected in advance) because he was gay. There were protests about that. Though it wasn’t nice, I think the CC was in their rights about this (just as the opponents had the right to complain about it). In the end, the fuss died down, some people are still unhappy, but the CC hasn’t been prosecuted.

    That’s about the only case I can think of that involved Christian conflicts with gay rights. There’s a lot more discussion about Muslims vs. gay rights, a result of which is that most of the Dutch right wing parties are championing gay rights with great enthausiasm, because ‘pro-gay’ sounds better than ‘anti-muslim’.

  • But once again Catholic Charity’s own board of directors tried to prevent CC from doing this.

    I was unaware of this detail. Do you perchance know of a source that mentions this. I’d like to cite/link to such a reference in the future.

    And thank you for providing such a detailed examination of this incident.

  • Anonymous

    Jared, I don’t have a link but if you google the Boston Globe’s real time coverage you will find out all about it. The entire thing was a real scandal and although it became murky the farther away you got from MA it was very clear what was happening while it was happening *in* MA. The state should never have paid a religious sect to do a secular task like finding homes for children in the first place.


  • I too, have far too short an attention span for longer livejournal discussions. If I really, really want to hash out some aspect of anything, I put up a new post on my own livejournal and just post a link to it.

  • There were, up until David Souter retired. He was the last of what was once a traditional 8 : 1 majority.

  • I am not fond of threading but I wanted to point out this inconsistency in your argument:

    Her argument has only become stronger with more and more cases of state repression around the world. And, as she says, it is not only a matter of religious liberty. It is about the enormous expansion of state power and its ever-more controlling intrusion into civil society to enforce the ideology of the enlightened few on the mass of the population.

    That is what you decry those who argue for secular equality in private behavior. You, however, seem to be arguing that your interpretation of the CCC (and as a Catholic, who considered taking Orders I am quite familiar with it, and the arguments about just what it means, which are beyond the scope of this comment; but offered in an attempt to avoid the charge that I am clueless on the subject) should be privileged.

    That the beliefs of “an enlightened few” (who understand the CCC in the same way you do) should be allowed to introduce their personal beliefs into everyone else’s life.

    The simple fact of the matter is the state is not, or shouldn’t be, in a non-totalitarian state) of saying that consensual behaviors which do no harm are evil, much less, “objectively disordered” when, in simple fact, an objective look at them shows no such thing.

    The harms you allege, re sex being divorced from procreation (which is not in complete keeping with the most recent encyclicals on marital relations) can’t actually be shown. They are “proven” in texts you cite by means of question begging and equivocation; and hence invalid. Even were they valid, they remain unsound.

    But the real point is that your root argument is that your position ought to be preferred, and that it isn’t is a persecution.

    Which isn’t true.