Saturday, April 25, 2015

Sweet reason and pouring oil on troubles waters: making sense of the SSM debate(s)

After several years of point and counter-point in the exalted comments section of Rod Dreher's blog at The American Conservative, probably the most diverse comment section on the web, it seems time to distil a coherent summary of what I actually believe to be true about homosexuality, discrimination, the Constitution of the United States of America, marriage, and other tangentially related stuff.

Clearly, I don't take this debate as seriously as some people do. Its a thing, but its not an essential thing. What any person is entitled to is what Justice Louis Brandeis called "the right to be left alone." That is not a right of gays and lesbians, or of Christians, or of any demographic sub-category, however you want to slice the pie of humanity. It is a right that adheres to each individual, and therefore to individual choices of activity shared with consenting adults. Within that universal right, there is room for people with same-sex attraction to act accordingly without the police barging in, and rightly so.

As a heterodox Christian, I also think that columnist James Watkins is probably correct in surmising that the marriage of a male and a female reunites the image of God, and the union of two men, or two women, or for that matter, one man and more than one woman, or one woman and more than one man, simply does not. Is this important to the civil law? Not particularly, but its a perfectly valid religious precept. It is civilly binding on nobody, but it may be true.

Anecdotal evidence is of limited use in proving a hypothesis to be true, but it can be quite sufficient to disprove a hypothesis. For example: "Homosexuality is a choice." One person who can credibly recount that they felt "gay" from an early age, from the onset of puberty, or in pre-pubescent ways even before puberty, disproves the hypotheses. Anecdotal evidence can disprove the scope asserted by the word "all." Likewise, the assertion that ALL homosexuality is inborn, genetic, fundamental to a person's being, can be disproved by one credible anecdote of a person who became homosexual in orientation at a later point in life, or due to some traumatic experience, not to mention those who have gone back and forth, or have been actively gay for many years, then found that when motivated to do so, for whatever reason, they were able to revert to stable, comfortable, fulfilled, heterosexuality.

So there is no reason to believe anyone who makes any universal statement characterizing exactly what homosexuality IS. We don't really know, and those who wave the banner of "science" from any point of view have always turned out to have a predisposition, something they earnestly wanted to prove. Presto! Those who denounce homosexuality publish papers "proving" their prejudice, and those who extoll it as healthy and normative publish papers which "prove" their prejudice with equal fervor, and equal credibility.

So, civilly speaking, is there any sound constitutional or legal reason to discriminate against individuals who are, or say they are, or may be, or seem to act as if they are, gay? Not much. If someone tried to enforce the equal employment opportunity right of a gay man to be employed as a prostitute at a legal brothel in Nevada, the management would have a sound case to object that this is NOT what customers are paying for. (Unless there were SEGREGATED brothels catering to different orientations... which there may well be, I haven't been looking into it.) But that is an outlier. It is one of the few cases where precisely the way a gay individual is DIFFERENT is highly relevant.

There was a cute post card some twenty years ago sarcastically debunking the notion of "The Gay Lifestyle." It had humorous references to "Watch them as they shop for the week's groceries, wash their car on Saturday, mow the lawn, get up and go to work Monday morning... Good points all. Whatever it is that makes "gay people" different from "the rest of us," in all these respects and most others, they do the same things the same way. So no, there is no basis for discrimination. The fact that "I don't like homos" is irrelevant as a matter of law, and commerce, in particular, is subject to legal regulation. The fact that someone is gay, or may be gay, is irrelevant. The point is, everyone is entitled to participate in civic life and commerce without inquiry or consideration of whether they are or aren't.

Does that mean that churches may not discriminate against gay people? Actually, a church, or any religious body, can exclude anyone they want to, for being gay, or Catholic, or Protestant, or having red hair, or wearing pants, or eating pork, for any reason or no reason, rational or irrational. That's fundamental to the First Amendment. For the federal or state government to intervene in what a church may or may not accept or reject would be both an Establishment of Religion, and an infringement of the Free Exercise thereof.

Further, the First Amendment has been expounded for close to 150 years to protect churches from any judicial review into matters of faith and doctrine. It simply is none of the government's business to even inquire, much less to declare, what a church does believe, or may believe, or shall believe, or teach. Most of that jurisprudence was neatly summarized by the Tenth Circuit court of appeals a few years ago.

Thus, there is NO basis whatsoever in our constitutional framework to impose any restriction on a religious body (church, mosque, synagogue, ashram, temple, etc.) teaching, e.g., that homosexual acts are sinful, contrary to the will of God, harmful to a human being's immortal soul, or whatever. They can preach it, teach it, proclaim it, and endeavor by patient witness to win others to accept and practice what the church teaches. Nobody has to accept it, or even listen to it.

So then we come to the rather more specific debate about same-sex couples marrying. Perhaps the most concise argument in favor is "I see an expression of the same longing for the connection that redeems an animal instinct into a living out of love and commitment." (One John Spragge contributed that to Dreher's blog). On its face, that's beautiful, and very convincing. It is true, sexuality is a set of hormonal animal instincts, and human cultural institutions have tried to encase it in meaning. In human history, that has included love and devotion, it has also included arranging diplomatic alliances, forging business alliances, etc.

But there is a significant difference between the right to be left alone, to work out the intimate details of your own life, to participate fully in civic responsibilities, on the one hand, and a claim to the honor, applause, acclaim, approbation, of the entire community, on the other.

The claim that "equal protection of the laws" constitutionally MANDATES that a state issue marriage licenses to same-sex couples rests on many flawed assumptions. One can frame the debate "Shall the state deny gay people the right to marry?" One can equally well frame the debate "Does the bond that unites a same-sex couple constitute a marriage?" Since either question is equally valid, the claim of constitutional mandate is shaky.

The basic problem is, the union of a man and a woman is not similarly situated to the union of two men, which incidentally is not even similarly situated to the union of two women. These are three different things, which the law may perfectly well treat differently, without running afoul of the Fourteenth Amendment.

There has been a lot of grammatically logical but rationally ridiculous reference to the 1967 Supreme Court case, Loving v. Virginia, which rendered all state laws against inter-racial marriage null and void. Well, the facile assertion goes, if the state may not discriminate on the basis of race, the the state also may not discriminate on the basis of sex! Well, look at all the reasons a few paragraphs up that affirm that discrimination against people because they are (or may be, or are thought to be) gay... Unlike shopping at the grocery store, or preparing a blueprint, or owning a home, or renting a home, or driving a car, or a myriad of other features of daily life... sex IS of the essence of MARRIAGE. It is highly relevant, and to consider it is not in the least invidious.

The plaintiffs in Loving were married.  That was the crime they were prosecuted for. The State of Virginia knew darn well that a man of any color and a woman of any color could constitute a marriage. The state wanted to sort out which men could marry which women, for reasons that had nothing to do with what a marriage IS. As Justice Potter Stewart said in his concurrence, no law that makes an act a crime, or not, depending on the color of the actor, can withstand constitutional scrutiny. Two men, or two women, are not being discriminated against, they simply don't constitute a marriage, as the law currently defines it.

Now, just because there is no constitutional right to obtain a marriage license for your particular affection, whatever that might be, does not prevent any state from legislating that marriage licenses shall be issued to same sex couples. New York state has legislated exactly that. If a majority of the legislature can vote for that, and expect to be re-elected, then that means a majority of the citizens of the state are OK with it -- maybe not firmly committed, but not particularly opposed. So be it. Incidentally, an argument that it would be sound public policy to license same sex couples and call it a marriage does NOT set a precedent that it would be sound public policy to license polygamy or child brides, etc. That paranoia can be dispensed with, if the decision is a discretionary act of the legislature. But such fears are reasonably well founded if the courts find a "right to marry" whatever one sets one's affections upon.

From a religious, or cosmic, or teleological point of view, such laws may well create a legal fiction, but there are many legal fictions on the statute books, and for all legal, civic, earthly purposes, they are perfectly serviceable.

As we get beyond the urges that motivate some people to discriminate against gays, we also have to move beyond "Gay Pride." There is nothing in particular to be proud of. After all, it is simply the way some people are born, right? Nothing earned, nothing chosen, nothing pursued. Its just a condition. It is, actually, in an objective biological sense, a deviation from the norm. Yes, humanity is heteronormative. Deal with it.

Sexuality exists for one reason only: without powerful sexual hormones, nothing more complex than a sponge would go through the difficult gymnastics necessary to produce another generation of any species. Thus, sexuality itself is by nature and origin heterosexual. Homosexuality is a by-product, an outlier, a product of the imprecision of complex biochemistry. That there will be outliers to any biochemistry is almost inevitable.

For those born gay, a life with a fixed affection for individuals of their own sex is the only life they will ever have to live. There is no reason whatsoever for the overwhelming heterosexual majority to go out of our way to make life difficult for them. There are some who respond to religious teachings by choosing to live a celibate life. There are others who do not. Either one is civilly valid. What God will say about it is between each individual and God.

Personally, I rather doubt that God is all that bent out of shape. No doubt God knew that the imperfect process of biochemistry would generate some statistical outliers. A same-sex couple may lack some of the teleological significance that each and every heterosexual couple potentially has, but it may be quite fulfilling to the individuals engaged, nevertheless. Not everyone will agree, and there is no reason they should. Some firmly believe that yielding to homosexual impulses, however deeply embedded in one's being, is morally wrong. They have a right to say so, and everyone else has a right to pay attention, or to ignore them.

Here we come to one of the harder nuggets to digest. What about the photographer who refuses to take the pictures for a same-sex commitment ceremony? What about the baker who refuses to make the wedding cake for two men, or two women? Isn't that bigotry? Well, no, its not.

There is no sound case for "freedom of religion" as a defence against non-discrimination in such a commercial transaction. Nothing in the First Amendment exempts any person from complying with a neutral law of general application, just because "its against my religion to do that." In fact, if a customer buys a cake off the shelf, it is none of the baker's business what the customer plans to do with it. BUT, there is ample precedent that the machinery of the law may not be used to compel participation in an expressive message. The state, including the courts, and various civil rights or human rights commissions, may not compel speech.

Thus, if a customer asks a baker to ice the cake with "Adam and Steve, together forever in wedded bliss," the baker may lawfully and constitutionally refuse. This is no different from a Democratic silk screen artist refusing to make t-shirts for a Tea Party rally.  It is no different from a K street lobbyist telling a prospective client, "I can't take your job -- I abhor everything you want to lobby for."

And the photographer? That is an intimate involvement in memorializing, celebrating, recording in the best possible light, "the happiest day of our lives." You can't compel a person to do that if they find the whole thing abhorrent, no matter how rational or irrational their beliefs may be, or may be construed to be. And why in the world would anyone want such a person to be their wedding photographer anyway?

There is an excellent Supreme Court precedent on this subject, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of South Boston. Essentially, the court ruled that to force the organizers of a parade to include an expressive message they did not want to include, violates the First Amendment. The state may not use a non-discrimination in public accommodations law like that. Incidentally, I have always held that the IAGLVGSB should simply have reorganized as the Sir Roger Casement Memorial Marching Band, and joined the parade playing "Banna Strand." Who could have turned them down?

Then there is the matter of adoption. It is entirely plausible that, all other things being equal, the psychologically and socially most healthy and nurturing family unit for any child, male or female, is a stable, married heterosexual couple, precisely the pattern that can actually conceive a child. There could be quite a number of very subtle factors which would be very difficult to "prove" scientifically or, worse, by the blunt instrument of a judicial code of evidence.

However, other things are not always equal. There can be little doubt that many children would have a much healthier upbringing from a stable, devoted, perhaps even married, same-sex couple, as compared with a married, alcoholic, abusive, heterosexual married couple, one or both of whom might also be pedophiles. It is also true that many children would be far better off adopted by a stable nurturing gay couple than bouncing around the foster care system for two years or ten, waiting for the perfect married heterosexual couple to appear.

It would be best not to set terribly rigid standards favoring exclusively heterosexual couples, or insisting on equal option for same sex couples, and to let a hundred school compete in the field of adoption. State standards for adoption agencies can provide a useful floor, but should not enclose the possibilities in a straight-jacket.

The truth is, bandying about terms like "segregation" and "discrimination"  and "equality" as universal bads or goods is destructively imprecise. We segregate public bathrooms and shower rooms by sex, not because one sex is inferior and unworthy to be in the presence of the other, but because 99.9 percent of each sex prefers privacy and a sort of limited modesty in such situations. Many women would like this to be separate and UNequal in a sense, and that may be a valid claim.

As to the claims of the "transgender" population, I have little sympathy. Again, public restrooms are not segregated to affirm "gender identity." They are segregated to insure a modicum of privacy and modesty. In your heart, you may know you are a woman, but when the ladies see your dick, they sure feel like you are a man. No, you may not use the women's shower room. Come back and talk about it if you choose to have an operation, after the operation is complete. Individual unisex facilities, which can be used by those who feel uncomfortable in a more public group setting, are all the reasonable accommodation anyone has a right to expect from their fellow men and women. There should be no questions asked about WHY any given individual chooses to use them.

But there is no reason a legislature should not provide for or reasonably accommodate a measure that would comfort and reassure even a small fraction of the civilian population, and it seems likely that in the absence of any ill considered judicial mandate, the will of a majority of voters will make it happen in the reasonably near future. Will this be an enduring change or a passing fad? Only time will tell.

Saturday, December 07, 2013

The name of the thing: what is marriage?


The media and various judicial departments are full of the controversy as to whether marriage laws deny some classes of people (plaintiffs are generally gay or lesbian or both, and attached to partners of the same sex) the "equal protection of the laws." A number of courts, including the Supreme Court of Massachusetts and the federal district court for the Northern District of California have ruled that they do. Other courts have ruled otherwise, or have yet to make a definitive ruling one way or the other.

The opinions of various courts that have mandated a revision of previous marriage statutes all have a common flaw: they either have failed to define what marriage IS, or have arrived at a definition at the conclusion of their deliberations, rather than defining their terms a priori considering the question. In the seminal case, Hillary Goodridge vs. Department of Public Healthin the Supreme Judicial Court of Massachusetts, Chief Justice Marshall began his majority opinion, "Marriage is a vital social institution." OK. That's a descriptive, and sets a value, but does not define the content of this vital social institution, only that it is vital and social.

That marriage had a legal definition was readily acknowledged by Justice Marshall: "The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law."

In conclusion, Marshall wrote "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others," which is a way of saying, we have no idea what it really consists of or what purpose it serves, but it just is. Implicitly, the court defined marriage as a desirable bundle of benefits which nobody should be deprived of. But it failed to define the term BEFORE analyzing the question before it.

Marshall stated the question before the court as, "whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." How can anyone consider that question without knowing what marriage consists of? Failing to do so, it had not even been established that the marriage laws of the Commonwealth DID deny the protections, benefits and obligations conferred by civil marriage to anyone at all.

The court's decision explicitly overturned the existing statutory definition, on the grounds that the definition deprived a class of persons of the equal protection of the laws. But if so, what then IS a marriage? Having thrown out one definition, the court was able to provide only the most tenuous substitute. Under the court's new definition, clearly marriage has absolutely nothing to do with sex, which raises the question, what does sexual orientation have to do with it either? And why have any marriage laws at all?

The simple historical fact is, every variety of marriage ever instituted in any human society came into being because the human species is divided into two sexes, men and women, and the volatile relationship between these two sexes needed some definition and regulation to sustain any functional community or social context.

With that commonality, different societies have instituted polygamy, polyandry, polygyny, marriage of one man and one woman for life, monomgamous marriage in which one or both partners are expected to have informal lisasons on the side, arranged marriages, giving of daughters to the suitor who offers the parents the highest bride price, marriage limited by clan affiliation, sacred marriage, marriage by free choice of the individuals concerned... but all these variations concern the union of male and female.

Some societies have openly accepted homosexuality in various contexts, temporary or long-term, by people also married to a husband or wife, or distinct from marriage, and others have discouraged or punished it. Some societies have hung property relations and diplomatic relations unto marriage, others have not. But all marriage has been a response to the distinction between men and women, which pre-dates any human constitution or form of government, and the volatile complementarity between the two.

Unfortunately, this fundamental point was never argued in the the Goodridge case. Instead the state of Massachusetts offered "three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources." Those were weak arguments, and entirely unnecessary.

When the New York Court of Appeals turned down the argument that the state had a constitutional obligation to license same-sex couples as marriage, Chief Judge Judith Kaye dissented, citing as persuasive authority the assertion in Halpern v. Attorney Gen. of Canada "‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning." True, no legal term can assume any definition because "it just is." What Kaye, and the Canadian court she referenced, both failed to do, was to define what, then, marriage IS.

It can no more be "whatever I find convenient at the moment" than it can be "whatever it always has been." And a consistent definition that has substance and integrity must PRECEDE any rational legal analysis. The definition cannot be "something broad enough to include gay men and lesbians" just because a judge desires to include them.

When the challenge to Proposition 8 in California was heard by federal judge Vaughn Walker, unlike the court in Massachusetts, Walker scarcely bothered to consider defining the most essential term at issue. Trial testimony and argument, and Walker's analysis, turned primarily on whether California has an "interest" in "differentiating between same-sex and opposite-sex unions." But whether state law had even done so cannot be weighed with integrity, without first establishing what is a marriage. The definition of a term cannot flow implicitly from a conclusion when the term itself was left amorphous for purpose of argument.

A great deal of Walker's opinion is devoted to weighing the credibility of various witnesses about the sociological benefits or harms of licensing or not licensing same-sex couples as a marriage. None of that is particularly relevant to the question, has anyone been denied the equal protection of the laws in violation of the Fourteenth Amendment?

Among other things, Walker ruled that "A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION." Of course it isn't - and a weakness in the ad hoc arguments by the ad hoc assemblage defending Prop 8 was reliance on arguments that did so. But that doesn't ipso facto mean that any marriage law is founded on such a private moral view. One cannot say it does, without defining what marriage is.

What a federal judge of unbiased integrity in Walker's position would have done, is refer back to all parties for additional briefing, "What is marriage, how is it defined, what authority sustains the definition you argue for, and with reference to that definition, how does your desired outcome retain any merit?"

New York state has a marriage law which suffers none of the deficiencies of judicial rulings in Massachusetts, California, and elsewhere. In New York, the legislature, not the courts, amended the statute, and thereby amended the civil definition of marriage. In essence, the people of New York decided, we will recognize the specific quasi-sexual human relationships that unite two men or two women as a couple, extending licensing these relationships, and giving them the name of marriage.

There is no constitutional reason the people of a state cannot do that. Quite properly, New York did not establish a test that only men, or women, qualified as homosexual may enter into a same-sex relationship. The law does not discriminate. Clerks issuing licenses do not inquire "are you gay or straight?" just as clerks never have inquired or a man and a woman applying for a marriage license "are either of you gay?"

Relationships are not entitled to the equal protection of the laws. If they were, business owners would sue for the tax exemption of non-profits, while non-profit organizations would sue for the right to engage in commerce (without losing their tax exemptions). Individual persons are entitled to the equal protection of the laws.

So long as any individual man, and any individual woman, are able to enter into marriage, the Fourteenth Amendment is satisfied. The fact that some men, and some women, prefer to be celibate, to enter holy orders, to enter into one or another kind of same-sex relationship, prefer to engage in group sex with a variety of partners, prefer to support themselves by prostitution, is entirely irrelevant. None of the above are entitled to a marriage license, unless they enter into what the law defines as a marriage.

Racial restrictions were thrown out because race is of no relevance to marriage. Sex is, however, very much of the essence in marriage. Sex is not of the essence to whether an individual can write a legal brief, design a highway bridge, or change a diaper. Race is no predictor of whether any given individual can earn a Ph.D. There is no reason that the people of a state may not write laws concerning same-sex couples, but equal protection of the laws is not offended if the people of a state don't think these particular relationships are worth writing laws about.

The following is a response to a comment by IllyrianFields:

Illyrian, you have a charming tendency to blur distinctions and meaning. No doubt you are sincere in your confusion. There is no good reason I know of that We The People, through the discretionary legislative power entrusted to our elected representatives, should not vote to license same sex couples, whether two men or two women, and confer upon these bonds the name of "marriage." That would be an argument about sound public policy.

Appealing to the courts is quite a different matter. Confused liberals, conservatives and others, infused with an excess of self-righteous zeal and a deficit of rational reasoning, have created the delusion that if the legislature doesn't give you what you want, you run sobbing to the judiciary, and they, like Santa Claus or the Good Fairy, will grant you your heart's desire.

Courts have jurisdiction over state laws primarily when the state has exceeded the boundaries of its jurisdiction, not when the state has made "the wrong decision."

Marriage means something in our society? WHAT does it mean? You beg the question, the very question I wrote about. No law says that "queers can't marry." No county clerk ever asked a man and a woman applying for a marriage license, "Is either of you homosexual? I can't give a marriage license to homosexuals." There is no discriminatory language in any marriage laws.

Marriage was not created in the abstract by legislatures, kings, tribal councils, or any other governing body. There is a biologically objective relation between men and women, and a biologically complementary relation. Observing this, and looking at how this volatile bond might affect the social cohesion of a community, marriage laws were constructed to regulate it. Nobody "discriminated against" a class of people called "homosexuals." Nobody conceived that there was such a class of people.

Homosexual acts were things some people did, not a definition of what anyone was. Married men might, or might not, indulge when away from their wives, particularly on long military campaigns. (Achilles and Patroclus come to mind.) Women, more or less the same. They law might, or might no, proscribe such acts, but the acts did not characterize a person.

Nobody is being told they are second class citizens. At most, some people are being told that your emotional bond is of insufficient interest to the general community to legislate about it.

A world in which gay marriage was the norm would very quickly lead to extinction, so it's a rather poor hypothetical to offer. There is no legitimate question that heterosexuality is the norm for all mammalian species, including humans. I don't think people who find themselves to be "gay" are indulging in sin, I think they have a modest misfiring of certain genes and biochemical responses, and by all means, we should be compassionate about allowing them to make the best of the cards they were dealt. But without the development of two complementary sexes, we would have no sexual emotions at all, and homosexuality would not exist either. Its a secondary offshoot, an evolutionary blind alley, significant only to the affections of the individuals concerned.

I'm not arguing for "the way its always been." I'm simply saying, there is an objective biological basis for the marriage laws that have existed up to 2003, and there is nothing about them that denies any individual PERSON the equal protection of the laws. The fact that some persons don't wish to avail themselves of marriage, and do wish to pursue something not currently regulated, licensed, or taxed, does not show any invidious discrimination whatsoever.

I can never conceive a baby in my own abdomen, or give birth to a child of my own body. That's because I'm male, and males lack the capacity. I am not a victim of discrimination based on sex -- not by the law. When laws were passed to allow pregnancy leave for women, some men complained that this was discrimination on the basis of sex. OK, I suggested, amend the law to provide that any man or woman who becomes pregnant is equally entitled to pregnancy leave.

To many people--a majority of Americans, it seems--sex is of as little consequence as race when it comes to marriage. I'm straight. I define marriage as "a union of two people who love each other."

With your opinion, and $8, you can buy yourself a fancy cup of coffee at Starbucks. Your opinion counts for one vote in the electoral arena, and nothing as to the constitutional boundaries of state power. You can urge your legislator to vote to change marriage laws. I'm not particularly opposed to that, although I wouldn't make it a priority either.

To say that sex is of as little consequence to marriage as race betrays pure ignorance or delusional wishful thinking. Without sex, no marriage laws would exist. If marriage is not about sex, then "gay marriage" would not be an issue, because "gay" is also all about sex. Even a gay person who chooses to remain celibate is defined as "gay," if there is such a designation, by their sexual urges.

I voted against my state's DOMA, partly because there wasn't a snowball's chance in hell that our state Supreme Court was going to find a state constitution mandate that the legislature license gay couples as a marriage, partly because I don't much care if a legislative majority votes to do so. But the petty, childish, emotive demand for licensing same sex couples as a matter of "equal protection of the laws" could have all kinds of unintended consequences, and it is in itself bad legal argument.

For the legislature to license same sex couples and call it marriage does NOT lead inexorably to legalizing incest or bestiality, because it would be a discretionary decision by the legislature. But, for the courts to MANDATE that each different sexual proclivity creates a protected class, could lead quite rapidly to protection for polygamy, incest, bestiality, etc. etc. etc. Be careful what you wish for, you might get it.

And don't be so simperingly magnanimous about being a straight person who wants to be nice to gays. In the civil rights movement, that sort of attitude gave birth to the phrase, "That's mighty white of you." What every person, IRRESPECTIVE of their race, creed, sexual orientation, or any other irrelevant characteristic, is entitled to by our constitution, does not depend on your good will.

Friday, August 30, 2013

Fantasy Supreme Court: How an appeal from the Supreme Court of New Mexico's ruling on Elane Photography might be decided

Some people play Fantasy Football. I like to play, Fantasy Supreme Court. Here, I have written a plausible summary opinion, anticipating that there will be an appeal to the United States Supreme Court from the ruling by the Supreme Court of the State of New Mexico in the recent case, Elane Photography, LLC v. Vanessa Willcock:

This court has repeatedly found that generally valid public accommodations laws are constitutionally barred from intruding on the protected rights to freedom of expression and freedom of association.

In Boy Scouts of America v. Dale, we held that applying New Jersey's public accommodations law to ... a private, not-for-profit organization, engaged in instilling its system of values in young people, violated the Boy Scouts' First Amendment right of expressive association.

In Hurley et al v. Irish-American Gay, Lesbian and Bisexual Group of Boston, we held that state courts' application of Massachusetts public accommodations law to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment.

In the instant case, the Supreme Court of New Mexico correctly observed that "The United States Supreme Court has never found a compelled-speech violation arising from the application of antidiscrimination laws to a for-profit public accommodation." In fact, we have never had occasion to consider such a claim. The question before us today, a matter of first impression, is whether as an "ordinary public accommodation" and a "clearly commercial entity," Elane Photography, may be compelled by law to produce photographs "for hire in the ordinary course of its business as a public accomodation," notwithstanding its assertion that the compelled photographs are contrary to the beliefs of the photographer.

The Supreme Court of New Mexico is correct that this court "has suggested that public accommodation laws are generally constitutional." Commerce, in general, does not inherently contain an expressive message. Every day, people shop in grocery stores, travel by train, airplane, bus, taxi, or in private cars, spend the night in hotels or at resorts, rent dwellings, buy and sell homes, eat at restaurants, without thereby expressing any kind of message that constitutes protected speech. That individuals have the protected right to access all these commercial goods and services, without reference to race, creed, color, national origin, religion, and in many states, sexual orientation, is well established.

As we noted in Hurley, "At common law, innkeepers, smiths, and others who 'made profession of a public employment,” were prohibited from refusing, without good reason, to serve a customer'." This is not a peculiarly modern legal standard. A 19th century English judge wrote that the rule was “[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.”

Congress has been explicitly authorized to regulate interstate commerce, and the general police powers retained by the states certainly include the regulation of anyone doing business within a state. But some goods and services offered to the general public in commerce are in essence the expressive work of the individuals offering their work for sale. The fact that goods or services are offered for sale does not ipso facto render them nonexpressive.

If a member of the American Nazi Party had found Pablo Picasso running a commercial art gallery in New York, and sought to commission a painting glorifying the Nuremberg Party Congress, done to approximately the same size and style as "Guernica," one can hardly entertain the argument that any conceivable regulation of commercial activity could have compelled him to accept the commission. We agree with the Supreme Court of New Mexico that a political party, respected or despised, is not a protected class under the state's Human Rights Act. But the relevant point is that even if it were, the state would be restrained by the First Amendment from requiring the artist to accept the commission.

Elane Photography submitted to the courts below "that in the course of its business, it creates and edits photographs for its clients so as to tell a positive story about each wedding it photographs, and the company and its owners would prefer not to send a positive message about same-sex weddings or same-sex marriage. Elane Photography concludes that by requiring it to photograph same-sex weddings on the same basis that it photographs opposite-sex weddings, the NMHRA unconstitutionally compels it to “create and engage in expression” that sends "a positive message about same-sex marriage not shared by its owner."

This court finds, consistent with our precedents, that this argument has considerable merit. We can find no constitutional distinction between the government compelling an individual to "speak the government's message," and the government compelling an individual to express the message of a private commercial contracting party. The constitutional issue is whether the government has compelled an individual to express a message that they would not willingly express as their own. Thus, contrary to the reasoning of the Supreme Court of New Mexico, our precedents in West Virginia State Board of Education v. Barnette, and Wooley v. Maybarn are very much on point.

As we wrote in Barnett, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." It is the right of the individual's speech to be free of compulsion, not the motivation for compulsion or the origin of the enforced conformity, that is relevant to constitutional protection.

Whether to license same-sex couples as marriage is a hotly debated political question at this time, and has been the subject of litigation which has been resolved one way in some states, differently in other states, and in many states has yet to arise for disposition. It is a question on which sincere passions have clashed, and sincere conflicting moral assertions have been offered.

New Mexico, while making no such provision for a marriage license, has chosen to make sexual orientation the basis of a protected class, and has construed its Human Rights Law to require Elane Photography to offer its services to cover a "commitment ceremony" that has no specific status under state law, but which, is entered into by two members of a protected class. Elane Photography offers that it has not refused services to members of the protected class, per se, but has refused to participate in the expressive message of the ceremony itself, recording the ceremony, and telling a positive story about it.

Again, our decision in Hurley is applicable. Elane Photography is not a parade. It has a fixed business location, operates year round, and has undisputed commercial purpose, as well as obvious expressive artistic purpose. But, as with the parade organizers in Hurley, "Petitioners disclaim any intent to exclude homosexuals as such."  No individual member of GLIB [Gay and Irish Lesbian Brigade] claimed "to have been excluded from parading as a member of any group that the Council has approved to march." No individual claimed to have been refused services by Elane Photography on the assumption that they are homosexual.

Instead, in both cases, the disagreement goes to participation in an expressive event, in Hurley "the admission of GLIB as its own parade unit carrying its own banner," and in the present case, the participation of the photographer in expressing a positive message about a particular ceremony.

It is a well established general rule that "the speaker has the right to tailor the speech," a rule not restricted to the press but "being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers." In Hurley we even compared the principle of autonomy to control one's own speech to the work of a composer -- a field of expression not dissimilar to an artistic photographer. "But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control." The specificity of a parade does not limit application of the general First Amendment principles on which Hurley rests to the facts presented here.

The First Amendment and our precedent expounding the meaning and application of its principles forbid New Mexico from applying its Human Rights Law to compel Elane Photography to participate in a commitment ceremony and to craft a positive message from those photographs. Turning again to the broad principles we enunciated in Barnett:

"Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. ...  Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."

New Mexico's HRA, as applied by the Supreme Court of New Mexico, does far more than "mandate that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation." The HRA, as applied, is compelling Elane Photography to actively participate in crafting an expressive message extolling a same-sex commitment ceremony, a message that is, rightly or wrongly, repugnant to the compelled photographer.

Several cases cited by the Supreme Court of New Mexico from the precedents of this court are inapposite. Rumsfeld et al. v. Forum for Academic and Institutional Rights, Inc, et al. concerned conditions set by the government for receipt of government funding, which this court held was not compelled speech. This has no bearing on facts which plainly show that the State of New Mexico is compelling expressive speech. While the law schools in Rumsfeld faced loss of government funds if they failed to host military recruiters, they were not compelled to actively participate in promoting the recruiter's message, nor did any law require them to host the recruiters at all.

PruneYard Shopping Center v. Robins concerned access to terrain that was, to all intents and purposes, operated as an extension of the public square, and again, involved no participation by shopping center owners in crafting or distributing any expressive message. If Elane Photography is located in a shopping center, a fact not before this court, it could not, e.g., prevent leafleting in the shopping center parking lot by organizations that disapproved of its refusal to photograph the commitment ceremony in question here. But that is not the issue before this court.

This court agrees with the Supreme Court of New Mexico that there is no "exemption from antidiscrimination laws for creative or expressive professions." When a generally valid law conflicts with a well established constitutional protection, any exception must be narrowly drawn based on specific facts. The state's Human Rights Law is valid, except when, as applied, it compels involuntary speech or expression.

The Supreme Court of New Mexico observes that "Bakeries also offer services for hire, and wedding cakes are famously intricate and artistic. Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws." Indeed not -- but that is not necessary. A baker who bakes a standard wedding cake may or may not be aware of the sexual orientation of the customer placing the order, or the sex of their fiance. Even if known, it is irrelevant. However, if the baker is asked to incorporate into the decoration a unique, individualized, expressive message that the baker finds repugnant, the baker may refuse to participate in crafting and espressing that message. It would be no different if a baker were asked to bake a custom order cake in the shape of a Ku Klux Klan hood.

The constitutional issue is not the goodness or purity or the compelled speech, the social approval or disapproval of the compelled speech, the virtue or depravity of the compelled speech, all of which may vary with the eye of the beholder. The constitutional issue is compelling individual participation in crafting and expressing whatever the message might be. It is putting words in the mouth of the unwilling individual.

It is not the sexual orientation of the customer, but the nature of the event and the expressive message that event is obviously intended to convey, that Elane Photography proffers as the reason to refuse to photograph the commitment ceremony. If Elane Photography were hired to take class photos, and said "not that one -- they're gay," nothing in the First Amendment would constrain the HRA from requiring Elane Photography to take the photo.

It is worth noting that no claims of religious exemption made by Elane Photography are considered or decided in this opinion. As we observed in Barnette, "Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. [Footnote 15] It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty."

There is no power in any government body subject to the First Amendment to compel Elane Photography to participate in the commitment ceremony at issue here. It is a restraint even on well-intended and generally valid public accommodations laws, that "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

The State of New Mexico may forbid Elane Photography to turn away a customer based on the customer's sexual orientation, but it may not compel Elane Photography to craft and express a message extolling any sexual orientation or celebrating a same-sex commitment.

New Mexico's HRA, as applied in the circumstances of this controversy, offers disturbing hallmarks of a rationale we rejected in Hurley, "that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases." But "if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective." Even in a commercial context, if the HRA is "used to produce thoughts and statements acceptable to some groups or, indeed, all people" then the HRA, as applied, "grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis."

The decision of the Supreme Court of New Mexico is reversed, and remanded for further proceedings not inconsistent with this opinion.

Now, one may well ask, what are the chances The Nine will actually rule more or less this way. I note first that the Hurley decision was unanimous, and the nine unanimous justices were Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, the same justices who decided Lawrence v. Texas. That means the five justices who formed the majority in Lawrence, plus the one justice who concurred on different grounds, were two thirds of the justices who agreed on Hurley

Since then Rehnquist has been replaced by John Roberts, Stevens by Elena Kagen, O'Connor by Samuel Alito, and Souter by Sonya Sotomayor. That isn't much of an ideological shift, if any.

Although advocates and opponents of same-sex marriage seldom realize it, there is a huge difference in constitutional jurisprudence between restraining the law from intervening in people's private lives, and using the blunt instrument of the law to demand universal respect for those same private lives. In fact, the principles that urge restraint in the exercise of police powers cut against universal conformity, either way.