Obergefell may go the way of Bowers, but these things take time

A 5-4 ruling by the Supreme Court is enforceable law, so for the foreseeable future, every state in the United States will be issuing marriage licenses to same sex couples, including two men, and two women. The sky is not going to fall, millions of marriages of a man to a woman each year will not be impeded or tainted. If God is really angry, he is speaking with a still, small voice, not through a fire or a storm or an earthquake.

But Justice Kennedy's high-blown speculative verbal legerdemain is just as weak and begging for criticism, appearing as The Opinion of the Court, as it would be in the event Kennedy had been writing a dissent. The damage to constitutional jurisprudence has been significant. The First Amendment still protects our right to publicly detail what is wrong with the decision. Kennedy himself observed "The law doesn't belong to a bunch of judges and lawyers, it belongs to you."

Fundamentally, the entire line of cases from Goodridge to Obergefell suffers a consistent deformity. Once this string is pulled, the entire fabric comes undone. The courts have failed to answer the basic question, what is this "marriage" thingy that gays claim to have been denied?

No man, and no woman, has been denied access to marry a person of the opposite sex. If that IS what marriage IS -- the union of a man and a woman -- then the claim that same-sex couples have a "right" to a marriage license becomes an oxymoron. Attempts have been made to "construe" marriage as something other than what is on the statute books, particularly in the Goodridge decision: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." Really? Why? What for? This, standing alone, robs marriage of any substance or meaning at all. But only by doing so have the courts been able to construe that a distinct set of persons have been "denied" the "benefits" of "marriage."

A significant difference between advocating the civil rights of racially distinct demographics -- whether a racial minority, as in the U.S., or a racial majority, as in the old Republic of South Africa -- is that "black" human beings were categorized AS black to deny them rights enjoyed by all other citizens, but "gay" human beings have had to assemble themselves AS a distinct demographic in order to make a colorable claim that they have been discriminated against. Racial laws contemplated that race meant something, and deliberately singled people out by race. Marriage laws, on the other hand, do not exclude those human beings defined as "gay" from marriage. Rather, people who presented themselves AS gay made the claim that they have been denied access to marriage, because what the law recognizes as marriage is something they personally find to be icky and unrewarding.

Discrimination on the basis of sex is, in general, invidious, because we now know that women make perfectly competent attorneys, doctors, engineers, senators, or whatever else. However, there is no aspect of human life in which discrimination on the basis of sex is so relevant as... sex. There is nothing so different about men and women as their sexuality, and therefore, there is nothing so rational as discrimination on the basis of sex when it comes to marriage. This doesn't mean that either sex is entitled to be top dog -- just that it makes perfect sense that a man who marries would marry a woman, and a woman who marries would marry a man. Two men might be business partners, or fishing buddies, or two women, or one of each -- it wouldn't really matter. But marriage has always been about the specific ways that men and women are distinct and different.

The species homo sapiens sapiens, like every species more complex than a sponge, is heteronormative. Indeed, sexual hormones and attraction only exists because two sexes with distinct and different roles in reproduction is a great evolutionary strategy, providing more flexibility in trying out different gene combinations, and facilitating more rapid adaptations to changing conditions. Whether homosexuality is an abomination before the Lord is of no concern to the civil law. What is a valid concern for the civil law is that homosexuality is, for the species, an irrelevant statistical outlier, that the law need not take notice of.

Human society may well have moved beyond evolution, so well do we control our own environment and suppress the many pathogens and natural conditions that would ruthlessly sort out the better survival characteristics from the the weaker ones. We value each individual as an individual. For those who happen to have a biochemistry focused on individuals of their own sex, this is the only life they have to live, and there is no reason to make it difficult for them. But there is no reason to call a "marriage" that which patently is not a marriage. The relevant categories, when it comes to marriage, are men, and women, not heterosexuals and homosexuals.

When the Supreme Court ruled in Bowers v. Hardwick that state laws imposing criminal penalties for private consensual homosexual contact were perfectly constitutional, they court strayed from its own line of precedents and made a grievous error. Those who believed the court was wrong did not collapse and say "The court has ruled, this is the law, we shall never say otherwise again." Rather, they went to work, studying applicable precedents, monitoring other decisions that might point the way to a reconsideration, looking at factual situations that might provide the basis for another case. Eventually, such a case was accepted by the court, and Lawrence v. Texas made the finding that no, such state laws violated the constitutional right to privacy.

Those dissatisfied with Obergefell would be perfectly correct to take the same approach. Change will not come quickly. Seventeen years passed between Bowers and Lawrence. Sixty years elapsed between Plessy v. Ferguson and Brown v. Board of Education. There are many variables, but this is a time for careful examination, not for supine depression or angry impotent expostulation. History is not linear, it meanders, swirls, eddies, and unfolds. Forward, but perhaps not in a straight line, is the way to go.

Having and Holding our Right to Privacy: The Constitution as a Jurisdictional Document

“Griswold v. Connecticut became about privacy; what if it had been about equality?”

The short answer to this question: the ruling would have had no anchor in the actual language of the Constitution of the United States. It would also have generated an unfathomable ethical and judicial quagmire.

The question is posed in a rather chimaerical article written by one Jill Lepore, and published in the New Yorker dated 25 May 2015.

Griswold was a landmark case in which the United States Supreme Court ruled 7-2 that a Connecticut law, forbidding doctors in the state to prescribe or dispense or even discuss contraception with their patients, violated the federal constitution. The ruling rested heavily on a line of constitutional analysis begun by Justice Louis Brandeis in his dissent to an early wiretapping case, Olmstead v. United States, asserting that “The makers of our Constitution … conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.”

When the case was decided in 1928, a majority of justices ruled that wiretapping a private telephone line did not require a warrant from a court, because telephones were not mentioned in the 4^th Amendment language providing “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” That might be a surprise to most Americans living today, who routinely understand that the government cannot tap our phones without a warrant.

Over time, Brandeis's dissent has come to be accepted. Griswold was a landmark case in establishing that individuals and families do have a right to privacy that the government may not generally enter into. The court's previous wiretapping precedents were overturned in Katz v. United States, a 1965 ruling that “Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure,” and “The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements.”

Other landmarks which rested on the right to privacy included Roe v. Wade and Lawrence v. Texas, establishing that it was no business of The State to intrude on intimate decisions as to termination of a pregnancy up to the point of viability, and that statutes imposing criminal penalties for sodomy or other sexual acts between consenting adults were also beyond the constitutional authority of government.

Lepore bemoans that Griswold, for one, was decided “not on the ground of a woman's right to determine the timing and the number of her pregnancies but on the ground of a married couple's right to privacy.” So far, this would seem to be a distinction without a difference. A woman's right to determine the timing and the number of her pregnancies would have to be explicitly and specifically enumerated to be a right of constitutional caliber, and there is no such language. But, the right to be left alone is broad, and can easily encompass making sensitive, intimate decisions, whether made by a woman, a man, or a couple making the decision together. The result does establish in fact a woman's right to determine the timing and number of her pregnancies, because it is an intimate, private decision.

But Lepore is seeking ex post facto to regroup a whole series of practical liberties under the category of “equality,” because the right to privacy does not sustain the cause that really concerns Lepore: same sex marriage. Her starting point is Obergefell v. Hodges, the case currently pending decision in the United States Supreme Court, challenging an Ohio statute defining marriage as the union of a man and a woman. As is common in the media, Lepore flippantly and erroneously refers to the statute as “a same sex marriage ban.” It is no such thing.

One cannot ban what does not exist. If it were possible to commit an act called “same sex marriage” with or without the formal recognition of the state, a statute providing a criminal penalty for “same sex marriage” would of course be a “ban.” But a statute defining what marriage is, for purposes of issuing a marriage license, is not a ban, it is an affirmative definition. The fact that some people would like to do any number of other things, or associate in any number of other ways, that are not what the state defines as marriage, is no ban at all.

In fact, the right of individuals attracted to persons of their own sex, rather than to those of the opposite sex, to act on this attraction so long as it is with a willing partner, was established by relying on the right to privacy. The word “sodomy” does not appear in the constitution. The essence of a right to privacy is, that it is none of the government's business exactly what you are doing, only that it is your decision, not the government's. Lawrence was a sound, conservative application of well established precedent. But the right to privacy in no way provides a foundation for a constitutional mandate that states MUST license a same sex couple, and call that a marriage. Lepore betrays the modern American fallacy of believing that if one only tries hard enough, the constitution will deliver a right to whatever one has set one's heart on obtaining.

In fact, the Constitution of the United States of America is not a surrogate for Santa Claus, it is a concise jurisdictional document. Unlike many unwieldy 20^th century constitutions, which attempted to set forth at great length and in detail each and every empirical right and duty and limitation on everything the writers could think of... our constitution sets forth in a few pages what powers are granted to the newly-established federal government, what powers are explicitly denied to the federal government, what powers the founding states agreed to surrender, that is, powers that all states entering into the union are forbidden to exercise, and powers reserved to the states, or to the people (which are definitely two different things).

Lepore asserts that “The Constitution never mentioned sex, marriage, or reproduction,” BECAUSE “the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal.” This summary has a lot of empirical truth to it, although a cursory examination of what women actually attempted and accomplished during that period suggests that it falls well short of complete accuracy. But as an explanation for WHY the constitution never mentioned sex, marriage, or reproduction, it is speculative to the point of sheer petulance.

The details of any specific aspect of life, then existing or later to be invented, the details of human biology and social relations, are for the most part not enumerated, because that is not the purpose of the document at all. If the government is authorized to act, then it has the power to act. How the legislature or executive branches exercise that power is discretionary. If the legislature is denied the power to act, then no matter how good or just or right or true or desirable some citizens may believe a law to be, the government is powerless to enact such a law. If it does so, then it becomes the duty of the courts to declare it null and void.

Perhaps more ominous, Lepore's statement would effectively rule out any possibility that the issues of evident concern to her may be resolved by constitutional litigation in the federal courts. IF it is true that the constitution says nothing about sex and marriage BECAUSE the Framers deliberately left them out in the belief that women didn't matter (although in truth men have a good deal to do with sex, and marriage, and reproduction), then it would take a constitutional amendment, not a well written legal brief, to make any change in this omission.

Lepore's style and framework echoes to some extent Samuel A. Marcosson's poorly conceived book, Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. Marcosson does a decent job of debunking the more outlandish aspects of “Original Intent” as the sole basis for constitutional jurisprudence. He opens with a most amusing chapter about how Thomas might have ruled on Loving v. Virginia, since “Original Intent” would tend to support Virginia's right to enact laws against inter-racial marriage, but Thomas himself lived in Virginia with a wife who, by the laws of the state, would be considered “white,” while Thomas himself would be classified as “black.” (Mr. and Mrs. Loving, the plaintiffs who sued the state, were actually a “white” man married to a “black” woman). Where Marcosson runs lemming-like over a cliff is when he counterposes that the correct question for constitutional jurisprudence should not be “Is it original?” but “It is legitimate?”

The term “legitimate” is so elastic, and is so capable of different and even opposite understandings in the mind of each beholder, that as a standard for expounding a constitution it is no standard at all. It is merely a license to do whatever any given sitting judge believes to be good and right. There is a reasons courts rely on precedent. The citation of precedents can become a tangled mess, but at least they provide some semblance that federal district courts will apply the same law, the same way, to similar sets of facts, all over the country. When new issues come up, of course, district court rulings are all over the map, which is why appellate courts, and the Supreme Court, set binding precedents that will insure uniformity in the future.

Questions were raised after the Affordable Care Act was passed, asking where in the constitution it says that congress can require an individual to buy health insurance. That is a legitimate question – legitimate in the sense that ANY exercise of power by congress MUST be granted by the constitution. All other powers are denied to congress by Amendment X. But the answer is quite simple. Congress has explicit power to regulate interstate commerce. For better or for worse, the delivery of medical care is almost entirely interstate commerce now. If it was about Doc Jones coming out of his apple orchard, saddling up his horse, and riding down the road because Sally just ran over to say that Ma was having her baby, congress would have no jurisdiction at all.

The same is true of setting a federal minimum wage. At the time the constitution was written, almost all commerce was in fact intrastate. Thus, congress had no power to enact such a law. By the dawn of the 20^th century, virtually all commerce was in fact interstate, or international. The constitutional powers of congress didn't change, but the fraction of economic activity that fell within the jurisdiction of congress to regulate had grown enormously.

“Essentially, the Constitution is inadequate” Lepore insists. That is an assertion unsupported by facts, but if true, recourse through the courts is closed, so her entire argument would be a nullity, rather than merely wrong.

Lepore wants what she wants, and is willing to cherry-pick any argument that will deliver the desired results. That is, up to a point, an inevitable and honored component of an adversarial court system. Unless there is a live controversy between two parties, courts have no jurisdiction to act. Generally, neither party much cares what the constitution provides for, what they care about is the material result for themselves personally. But it is the job of the courts to apply lasting general principles in order to determine what each party is legally and constitutionally entitled to. An article asserting enduring values is cheapened when it is reduced to “so how do we get what we want?”

Lepore knows that the constitutional ground for a mandate that states must license, regulate and tax same-sex couples, and call that a marriage, is weak. She particularly knows that a line of privacy cases provides no support at all. So, she tries to cheapen the whole notion of privacy. Lepore quotes, accurately enough, from arguments that women's suffrage would “open to the intrusion of politics and politicians that sacred circle of the family.” That could be termed an appeal to the “right to privacy,” but Lepore finds no argument that the constitutional right to privacy bars a state from extending to women the right to vote. She merely tosses around the term privacy, in general, without reference to actual constitutional impact. Whether to propose or ratify a constitutional amendment is, by its very nature, not subject to judicial review. The power of the judiciary to declare a statute null and void lies in the language of the constitution itself. The proposed amendment could not be ratified by reference to the existing constitution, nor, if ratified, could it be nullified.

Still Lepore is determined to besmirch the word and concept of privacy, so she ends up arguing that the philosophy of Roe v. Wade has its origins in the Victorian era, and is bound up with the idea that the home lies outside of politics and that women, therefore, ought not to vote. It did take many decades of effort to get the word “male” out of the constitution, and that is because it had been written into the constitution. No court could remove it, only two-thirds of both houses of congress, and three-fourths of the state legislatures, which, in the end, was accomplished.

Lepore comes roaring back with the complaint that “No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women” when the court ruled that states may not ban the use of contraception. Well... that may be because the Nineteenth Amendment is about the right to vote, and only the right to vote. She may wish there was more to it, but its not there. It also may be because there is nothing in life in which men and women are so unequal as when it comes to sex. Men can prevent themselves from impregnating a woman, but a man cannot become pregnant. (And no, “trans-men” either are not yet men, or have not yet become men, if they are pregnant – but that is a tempest in a teacup for another time.) It is theoretically possible for a woman to sexually assault a man, but it is extremely rare and difficult.

There was a real basis in the language of the Constitution to assert a right to privacy, but no language from which to assert a right of men and women to be equally free of pregnancy, or able to become pregnant. As the old saying goes, only women can have babies, because God knew that men couldn't handle the pain. Lepore even speculates that Roe v. Wade should have been decided, not on the right of a woman to make an intimate private decision, but on her right to equality with men in the matter of pregnancy!!! (Outside of elite circles that take such abstract nonsense seriously, the reader begins to wonder what the New Yorker editors were thinking when they accepted this diatribe).

Perhaps Lepore agrees with the attorney who proposed some years ago in an incongruous New York Times Op-Ed that a young man who is informed that his girlfriend is pregnant should have 90 days to renounce his father hood in writing, in which case the pregnant woman can carry the pregnancy to term, knowing she will have no child support from the father, or agree to an abortion? That level of narcissism is easily refuted, but only by recognizing that “the equal protection of the laws” does not empower the law to render everything in life perfectly equal.

When a young man (or a dirty old man, for that matter) lies down with a fertile young woman, he knows that conception is a possibility, and that for nine months the developing zygote, blastocyst, embryo, fetus, will be growing inside the woman's body, and nowhere else. Not only do all the risks and pains of carrying a pregnancy to term fall on the woman, but so do all the risks and pains of choosing to terminate the pregnancy. By no means can these be transferred from her to him. Thus, it is her decision, and only her decision. Once a child is delivered, if the woman wants to put the child up for adoption, there is no reason daddy should not have first claim.

Although equality between men and women in most commercial and social spheres is now well established in law, labor organizations have for more decades than not resolutely opposed an open-ended Equal Rights Amendment, because in fact women have a different bone structure than men, different musculature, and, e.g., if an overseer of farm labor in the fields could require women to carry weights just as heavy as men, serious injuries could result without recourse. It takes a scalpel, not a bludgeon, to get the details right so that the most equal opportunity reasonably achievable is the result. The law of unintended consequences tends to fall on the poor and the unskilled, but might even have some backlash for the more educated, prosperous, and privileged. Of course nobody does manual labor any more right? Nobody who counts, anyway. The opportunities to twist a well intentioned law for miserable greed are the reason high-profile lawyers are paid so well. (My apologies to those lawyers who labor, unheralded, in the vineyard of day to day work for those who simply need some help negotiating the complexities of the statute books.)

Lepore's crusade for perfect equality deems destruction of an American citizen's right to privacy to be an acceptable level of collateral damage. Thus, she quotes Martha Minnow of Harvard Law School that “the family is not mentioned in the Constitution.” Indeed it is not, but nowhere does any court decision endow families with protected rights. Rather, individual persons have rights, and when those persons enter into family relations, each family member retains their right to be secure in their persons, houses (generally the family home), papers, and effects (often family furniture, the family car, etc.). It is the choice of individuals to enter into families, and the police powers retained by the states to enact a body of family law, that make families relevant to constitutional jurisprudence.

But eventually Lepore gets back to her main point: same sex marriage must prevail. Lepore mourns that Lawrence v. Texas was decided on the right of individuals to a sphere of privacy, not on equal protection of the laws. She cites Sandra Day O'Connor's concurring argument that rather than ruling for Lawrence on the basis of his right to privacy, the court should have ruled against the state of Texas on the ground that a man could not be prosecuted for engaging in a particular activity with a woman but could be prosecuted for engaging in that same activity with a man. Unfortunately for the grammatically impeccable argument, it simply isn't the same activity.

Justice O'Connor's tortured reasoning was, evidently from her own words, a desperate attempt to overturn the result of Bowers v. Hardwick, which upheld a Georgia sodomy statute in 1986, without actually admitting that she had been wrong. The second sentence of her concurrence is “I joined Bowers

, and do not join the Court in overruling it.” O'Connor continued to maintain that the Georgia sodomy statute did not violate anyone's right to privacy – and apparently Lepore agrees.

O'Conner's stance was perhaps one of the low points, in terms of honor and integrity, of a judicial career that had many high points. She, and Lepore, draw shamelessly on false analogies to Loving v. Virginia, and Potter Stewart's succinct concurrence. Stewart cut through a great deal of unnecessary verbiage in the main opinion of the court, to say that no law can stand constitutional scrutiny that makes an act a crime, or not, depending on the race of the actor. In the minds of Lepore, O'Connor, Chief Justice Margaret Marshall of Massachusetts, and a host of federal district court judges more anxious to jump on a bandwagon than to think through a constitutional argument, it is therefore equally wrong to make an act a marriage, or not, depending upon the sex of the actor(s).

Many distinctions must be made, because there are many differences to distinguish.

First, Virginia's anti-miscegenation laws made it a crime to marry, whereas state marriage laws do not make homosexual sex a crime (that has been ruled null and void in Lawrence), they merely refuse to issue a marriage license to any combination of persons that does not constitute a marriage.

Second, race is irrelevant to the structure of marriage, while sex is of the essence. Without sex, there would be no marriage. Without race, marriage would be unchanged. The state of Virginia knew darn well that a man subjected to one racial classification, and a woman subjected to another, were perfectly capable of marrying. That is why the state made it a crime to do so. States may have a more substantive reason to define marriage AS the union of a man and a woman.

There is no particular reason that a state could not or should not enact a statute to license, regulate and tax same-sex couples, or issue them marriage licenses. All it means is that a majority of legislators heard an appeal from citizens who would like their partnership to be considered a marriage, and concluded that they could vote to do so, without losing the next election. That in turn means a majority of the citizens of the state are OK with the idea. In the end, civil marriage means the general community has decided to extend recognition and approbation to the couple – which incidentally is not a constitutional right for anyone. IF a state has marriage laws, marriage must be equally available on the same terms to each individual – whatever it is.

One of the constraints, of course, is that a man has no “right” to marry, unless a woman agrees to marry him, and vice versa. Just as the family is not mentioned in the constitution, neither does any article grant rights to couples, or that states shall guarantee to every couple of persons the equal protection of the laws. Persons have protected rights.

Race is an artificial and mutable concept, but the division of the species homo sapiens sapiens into two sexes is fundamental. Our species does come in two types of persons: male and female. There are ambiguities due to the imprecision of biochemistry and genetics, but these are ambiguities of male and female. The only reason sexes exist is that it was a favorable strategy for reproduction, survival, and diversity in the gene pool, many eons before human history.

The only reason sexual passions exist is that, without them, nothing more complex than a sponge would engage in the difficult acrobatics and intrusion necessary to conceive another generation. Sex is, by origin, heterosexual. It therefore makes perfect sense that a state would choose to regulate a fundamental aspect of human biology that is overwhelmingly normative, and treat with benign neglect whatever statistical and biological deviations from the norm might also exist.

It also makes perfect sense that a majority of citizens, becoming aware that a tiny fraction of our fellow citizens form couples differently than the dominant pattern for the species, and that most of us know some perfectly nice, competent people who feel this way, would accede to a proposal to issue them marriage licenses. Its not a constitutional mandate, but it is constitutionally permissible. By some criteria a marriage of a same sex couple would be a legal fiction, but legal fictions are perfectly serviceable for all legal purposes.

For purposes of the civil law, it doesn't matter whether homosexuality is an abomination or not. But nobody is denied the equal protection of the laws just because their personal preference does not conform to the statutory definition of marriage. As her personal contribution to erecting this unstable house of cards, Lepore is prepared to demolish the constitutional guarantees nearly all Americans rely on in one way or another, that we have private lives that are none of the government's business.

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.

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.