The Supreme Court shouldn’t end our gay-marriage debate

Right questions, wrong venue. (Photo: Sean Cockerham / McClatchy)

Right questions, wrong venue. (Photo: Sean Cockerham / McClatchy)

See if you can follow this trajectory:

  • In 2000, no country allowed same-sex marriages.
  • In 2004, George W. Bush’s re-election bid was helped by a boost in GOP turnout as voters in 11 states approved gay-marriage bans.
  • In 2008, Barack Obama, despite running to Hillary Clinton’s left on other issues, said he opposed gay marriage. According to a recent book by his strategist, David Axelrod, this stance was not genuine but purely political.
  • In 2012, Obama flip-flopped on the issue. Many Democrats followed his lead.
  • Ahead of the 2016 elections, several Republicans have been asked if they would attend a gay wedding. Two leading candidates, Jeb Bush and Marco Rubio, said they would; a third, Scott Walker, said he already had.

Even as gay-marriage advocates had their day at the Supreme Court on Tuesday, the political momentum was already clearly, swiftly moving in their favor. So why shouldn’t the high court give them a constitutional stamp of approval? Consider this parallel trajectory:

  • In April 2014, Mozilla forced out its new CEO, Brendan Eich, because in 2008 he gave $1,000 to backers of a gay-marriage ban in California.
  • That same month, the Supreme Court declined to hear an appeal by Elane Photography, a small business fined in New Mexico because its owners refused to work at a gay couple’s nuptials.
  • Last month, an Indiana pizza parlor closed under a barrage of online threats after one of its owners merely said, when asked by a reporter, the restaurant would serve gay customers but would not cater a gay-wedding reception.
  • This month, New York Times columnist Frank Bruni approvingly cited a call to force church leaders “to take homosexuality off the sin list.”
  • Last week, two gay hoteliers in New York City faced boycott threats after they simply met privately with Sen. Ted Cruz, a gay marriage opponent, to discuss foreign policy.

This second trajectory makes it crucial that this issue continue to be hashed out in state legislatures, rather than decided bluntly and permanently by as few as five judges in Washington.

In Tuesday’s court arguments, there were no good answers from gay-marriage advocates to several questions about what could come next. Could ministers still be authorized to conduct marriages recognized by the state if they won’t marry gay couples? Could private colleges that oppose gay marriage lose their tax-exempt status if it’s declared a constitutional right?

This is to say nothing of the insidious phrase, increasingly popular on the left, “freedom of worship” (as opposed to “free exercise of religion”). Could that come to mean the government can’t dictate what is preached on Sundays, but it can force a church to make its chapel available to couples who supply their own officiant?

The legislative process is messy. It can be ugly. It is often slow. But it is a time-tested method of balancing these kinds of competing interests as finely as humans can.

But if this matter is resolved with a single, final court order, there will be no such balance. As recent events show a rising desire to punish dissenters, the absence of balance could do more harm to liberty than good.

Reader Comments 0

93 comments
The Real Atlantan
The Real Atlantan

States Rights:

Same argument on slavery and segregation.  Still does not pass the smell test.

bu2
bu2

@The Real Atlantan 


That was a huge issue when the constitution was written and took 200 years to resolve, not something requiring a dramatic re-reading of the constitution over a 10-20 year period. 

GaGirl53171875
GaGirl53171875

Hey Kyle, remember that slippery slope that right-wingers like to talk about in reference to guns? It is especially applicable here. If we give the religious right the opportunity to discriminate against one group of people, who's next?

Also, private colleges should not have tax-exempt status--they are there to make money, why should I have to help them by exempting their taxes?

Justice Roberts said that if the Supreme Court settles the issue then there will no longer be any debate on the subject. Huh. He must not know about Roe vs Wade. It was settled over 40 years ago and us ladies are still trying to keep righties out of our pants.

god, you guys are the biggest hypocrites!!!

TheRealJDW
TheRealJDW

They shouldn't?  Sounds like the same conversation in the run up to Loving v. Virginia.


The outcome should be the same as well.

Jefferson1776
Jefferson1776

What difference does it really make,  you can always go your own way and leave those you don't agree with alone to go their own way.

EdUktr
EdUktr

The next step for militant liberals will be to use tax exempt status as a bludgeon on churches still opposed to homosexual marriage.

Societal upheaval is their goal—not "rights."

MarkVV
MarkVV

Considering that the resistance to gay marriage is usually painted in religious terms, I am willing to suggest that at least in Christianity there is no sin involved, and therefore those who refuse to do things like catering a gay-wedding reception or refusing to work at a gay couple’s nuptials do that under false pretenses. And I would like to hear a contra-argument.

bu2
bu2

@MarkVV 

I suggest you read Paul's letters.  There is plenty of material to support those who believe it is a sin.

DawgDadII
DawgDadII

Unless they find some technicality in the law to rule on it essentially comes down to whether or not the operable definition of "marriage" can be defined as between a man and a woman, constitutionally. If the answer is "yes" then the status quo prevails, heterosexuals would not be able to marry other heterosexuals of the same sex, and the same would apply equally to gays (depending on prevailing State law).


It won't happen this way, but I'm convinced the best path forward is to completely remove government from the business of marriage. Government has overstepped its Constitutional purpose by civil sanction of marriages as a legal binding contract (effectively if not literally). Marriage should be a private/religious agreement, defined by private/religious tenets, not law. Government has seriously overstepped and tread on any number of our liberties, I just wish more people could recognize and understand this.

MHSmith
MHSmith

@DawgDadII


@DawgDadII


In Georgia and states like Georgia, the definition of “marriage” is between a man and a woman Constitutionally. Which does not violate “equals rights” given the fact, as you so correctly point out that Heterosexual and Homosexual can only “marry” a person opposite of their sex. Therefore, no one's fundamental privilege to a marriage license is being denied. Everyone can marry anyone of their opposite gender. Of course that means not everyone can get their desired “results” or equal satisfactions from the same law with equal conditions applied equally to every person. 


So, in truth, the Supreme Court has been asked and as it now appears, has answered by taking a long established right from the states that up until recently has always belonged to the states . Which essentially nullifies any right of any states to set any conditions that differs from another state or from the federal governments creation of federally defined marriage and conditions of marriage licensing. All to say, only the federal government from this day forward shall have the powers to define the meaning of and set the conditions on marriage. Justice Kennedy hinted at answering this issue in a question when he said to the affect... are we now telling the states they've been wrong all along and only we know what is right?    


If the states were in a snarky state of mind, they all should stop issuing marriage licenses altogether and tell their citizens... go to the newly established federal department of marriage licensing.  


Removing governments from “marriage” at this point and time is probably not going to happen. The best way forward - on which pretty much agree per se' –  is for government to issue  civil unions licenses for those of the secular world , leave the marriage license and marriage ceremony part to the Churches or to those of the spiritual world. This would dial back the extreme government overreach.


"I just wish more people could recognize and understand this."


Amen brother, amen

LogicalDude
LogicalDude

@DawgDadII "Marriage should be a private/religious agreement, defined by private/religious tenets, not law. "


Then that would mean gay marriage would already be legal. 

As would polygamy. (most notably Mormon)

As would polyamory. (most notably pagan)

and so on. 


LilBarryBailout
LilBarryBailout

@OldPhysicsTeacher

Hopefully it works out better than the left "letting go" of the intact family.  The poverty and anti-social behavior that have resulted have been a disaster for this country.

Penses
Penses

The argument over homosexual "rights", like most issues, should be resolved at the state level. The Constitution should be read to guarantee the LCD (lowest common denominator) of individual rights. Speech should be interpreted to mean what it is defined as in Samuel Johnson's and present-day dictionaries: communication through written or spoken WORDS. Speech does not, nor has it ever, signified taking off your clothes. Abortion should be protected when the mother was impregnated through NO CHOICE of her own (as in rape or molestation), or her life is threatened by NO CHOICE of her own, but never after the point of "quickening" (viability). Marriage should be defined by states.

This way, no there is no tyranny of the minority or majority at the federal level. States are free to allow pornography, prostitution, abortion at will and gay marriage if they wish. They are also free to prohibit these things. If you don't like your state laws, move to another state. States then become a kind of social laboratory, on the theory that "Wisdom is proved right by her children" and folly is proved wrong by hers. THEN we will have tons of empirical data, rather than ideological arguments, to know what the best policies and laws are.  

Jefferson1776
Jefferson1776

@Penses  If you don't like the way your federal court rules,  move to another country. 

LilBarryBailout
LilBarryBailout

@Jefferson1776 @Penses

Yes, just like "Citizens United" and "Hobby Lobby".

And for you victims of public schooling, there are checks and balances to deal with the judicial branch.  You might check it out.

Penses
Penses

@Jefferson1776 

ROFL. I am sure you would have said the same to our mistreated black citizens just after Plessy. Now...got any other "smart" retorts?

straker
straker

Byte

Mark


More red herrings?

straker
straker

Headley


1. That is a red herring.


2. Yes.

Visual_Cortex
Visual_Cortex

Could ministers still be authorized to conduct marriages recognized by the state if they won’t marry gay couples? Could private colleges that oppose gay marriage lose their tax-exempt status if it’s declared a constitutional right?

[...]

Could that come to mean the government can’t dictate what is preached on Sundays, but it can force a church to make its chapel available to couples who supply their own officiant?


Some pretty irresponsible rabble rousing here, Kyle. I think the business about ministers being forced to perform religious ceremonies against their personal beliefs might be the single most obnoxious, unfounded talking point I've heard from the right concerning marriage equality.

Shame on you for perpetuating it.

Kyle_Wingfield
Kyle_Wingfield moderator

@Visual_Cortex You've misunderstood what I said. I was referring to a question asked during the hearing by one of the justices -- so much for "irresponsible rabble rousing" -- about whether a minister could still be licensed by the state to conduct marriages if he won't conduct marriages for anyone who qualifies under state law. In that case, he could elect not to perform marriages at all; thus, I'm not saying he'd be "forced to perform religious ceremonies against their personal beliefs." Rather, I am -- again, following the question asked in court -- asking whether he would be barred from performing them at all.

AvailableName
AvailableName

@Kyle_Wingfield @Visual_Cortex   I'd suggest that without your unconvincing addition above in the original article that you are indeed rabble rousing.  That a Justice, or you without disassociating yourself from it, would make such a statement is a minimum, irresponsible.


And while I'm at it, what's with your timelines?  You list a bunch of things that people supporting equality have done that are what, untoward, in your view?  Are you saying that because people that support gay rights can be every bit as obnoxious as those that oppose them that gay people are treated badly?  What is there about people treating people badly that means that five justices can't interpret the constitution or even more strange, that somehow we must "balance" hate with tolerance?

ByteMe
ByteMe

@Kyle_Wingfield Many rabbis already refuse to perform mixed marriages and no one bothers to sue them over it.  Could it just be a Christian thing to do that? :)

LilBarryBailout
LilBarryBailout

@ByteMe @Kyle_Wingfield

Live and let live.  Too bad the liberal fascist left can't do the same.  

Pick the target, freeze it, personalize it, and polarize it, eh?

Visual_Cortex
Visual_Cortex

@Kyle_Wingfield @Visual_Cortex

I was referring to a question asked during the hearing by one of the justices

And I'll be happy to call out that justice (it'd be Scalia, he of the "broccoli mandate" and "Cornhusker Kickback" talking points during the PPACA oral arguments some years back) as being an irresponsible rabble rouser as well.

As to the hypothetical: If a minister is in the business of performing marriages for hire to the public, he has to abide by the law, however that shakes out.

AvailableName
AvailableName

More from the "us people in the majority are the real victims here" camp.  The whole point of constitutional mandates for equal protection and due process are to protect the minority from the majority.  If society has to buy into "fundamental rights" which courts may enforce, we may as well get rid of them - they are what the majority says they are.


Left to the majority, there would still be segregation, and interracial marriage would be banned, in many southern states.  Equal rights for women?  Forget about it - her place is a step behind the man controlling her.


Do I overstate the argument?  Yes.  But there comes a time that the "give us time" argument doesn't outweigh the injury to the minority.  That time came for women, then black people and now it's that time for gay people.



FineousMcDirtyBird
FineousMcDirtyBird

This argument fascinates me. The purpose of the court is to check the power of both the state and the people by determining the constitutionality of the laws they pass. Particularly in this instance where the people and the state continue to undermine the rights of a minority. A minority that makes up less than 10% of the population. The reason this issue is ripe for a definitive ruling is that there is no legitimate state concern in restraining the rights of gay people to enter into a legal marriage contract.


Will a ruling in favor of gay marriage rights end debate? No. Definitive rulings in other cases (segregation, abortion, et al) didn't shut down the national conversation, why would it in this case?


Will churches be forced to perform gay marriages? No. No one is proposing such a remedy. No one realistically expects such an outcome. No court could force a church to perform a gay wedding. No court could force a church to host a wedding. It's called the first amendment, which among other things has allowed churches to decline to perform any marriage they are uncomfortable with such as divorced couples, couples of different faiths, and so on. The only people who would be forced to comply with marriage officiant policy would be those who perform that service for the state. 


Would private colleges lose their tax exempt status if they....No, no, no, no, and no. A private institution, particularly a religious one, is protected by the first amendment in both hiring and admissions practices. A gay marriage ruling would have zero effect on this. This concern combined with the concern for ministers or churches losing their rights is the very definition of a straw man argument.


Public opinion has shifted in a dramatic way as has the view of homosexuals in general. People, not the state and not the judiciary, have been utilizing social media, op-ed, and so on to drown out dissent on this issue. Why should that, which is hardly unique to our process, confound what would be a justified ruling? Why should gay couples and families continue to be relegated to second-class citizen status because a pizza place in Indiana received a bunch of angry tweets?


As for the legislative process, it exists to reflect the will of the people. Granted. But the people can be wrong. They can be short sighted. Manipulated. They can ignore constitutional process. That is what is being ruled on in this case. Does the vast majority have the right to restrict the freedom and equal access to legal institutions of a minority? Some say yes, some say no. The constitution, however, is pretty clear on the issue.


LilBarryBailout
LilBarryBailout

What the government has to say on homosexual marriage doesn't matter.  Government doesn't define marriage.  Homosexuals can and should have all the same rights as straights.  Redefining marriage is not one of them.

Real marriage will continue to be what it always has been--the union of man and woman.

Call your relationship "marriage" if you wish, but if it doesn't meet the definition, it isn't one.

OldPhysicsTeacher
OldPhysicsTeacher

@LilBarryBailout 

"Real marriage will continue to be what it always has been..."  Doesn't the Bible, which is pretty old... older than the USA, accept polygamy as a marriage?  So, like you, I believe gays should have the same rights as straights. I just don't think definitions, which change over time, are that hard and fast... kinda like the gay '90's doesn't mean that everybody was a homosexual in 1990... or 1890 either.  

LogicalDude
LogicalDude

@LilBarryBailout "Government doesn't define marriage."


Then how do they define "filing jointly" when you do your taxes?  Can any group of people legally file jointly?  

LilBarryBailout
LilBarryBailout

@LogicalDude @LilBarryBailout

Note that your question doesn't include the word "marriage".

The government gets to define "filing jointly".  Marriage is and will continue to be what it has been--the union of man and woman.

Visual_Cortex
Visual_Cortex

@LilBarryBailout @LogicalDude

 Marriage is and will continue to be what it has been--the union of man and woman.

Well no, it won't, and that's what has you so sore.

Change is hard; I get that.

Claver
Claver

My guess is that most of the Republicans running for president are secretly hoping that the Court rules in favor of gay marriage.  It will take an issue that is splitting the social conservatives from the business community off the table and they will be able to avoid having to choose sides.  Plus the conservatives will be all riled up about their "victimhood", which will help with turn out.

LogicalDude
LogicalDude

"Could ministers still be authorized to conduct marriages recognized by the state if they won’t marry gay couples? Could private colleges that oppose gay marriage lose their tax-exempt status if it’s declared a constitutional right?"

A: no. 

B: possibly. 


What happens when interracial marriage is the subject?   It'll be the same answer for gay marriage.  It's not that hard. It's been done before. I'm getting a deja-vu moment.  Have I explained this before? :) 

Phil2413
Phil2413

Should the U.S. Supremes have left segregation up to the Arkansas and Alabama Legislatures?


The religious freedom concerns of the anti-gay marriage crowd are silly. Churches can now discriminate freely, except for, perhaps, staff not involved in religious activities.  The Southern Baptists, and others, can refuse to allow women in the pulpit.  Churches can still refuse to admit minority members if they wish.  (There is no federal civil rights protection for "sexual orientation," for churches or any other non-profit or for profit entity, although some states have such protection at least for profit entities-not redneck Georgia of course.


The same court opinions/federal Constitutional law that allow churches to discriminate against women on "freedom of religion" grounds will continue to allow churches to refuse to participate in gay weddings. If some states/cities are proposing requirements that churches perform gay weddings, the laws will be held unconstitutional.


The silly arguments that gay marriage will unleash group marriage or marriage to goats completely ignores the "equal protection" clause and its meaning.  Discrimination is only allowed if there's a reasonable state purpose for the discrimination; animals can't consent-there's a valid purpose. The state has decided that TWO INDIVIDUALS can marry; there's no valid purpose in saying this should only be between a male and female-tradition should have no relevance.  If a legislature decides that two women can marry one man, but bans two men from marrying one woman--then the later has a constitutional objection.

IReportYouWhine#1
IReportYouWhine#1

I agree with straker, unbelievably, it's a matter for the states to decide.

Grass_Hopper
Grass_Hopper

It's easy to say 'just wait and let the issue sort itself out' when you're not the one being discriminated against.

RafeHollister
RafeHollister

I know what you mean, what can we do about the airlines discriminating against anyone more than 5'8" tall.  I'm 6'4" and do not fit in their seat and tired of being discriminated against.  We need to do something.

straker
straker

There should be referendums in every State to decided the issue of gay marriage.


9 lawyers should not decide a crucial social issue in a country of over 300 million people.

ByteMe
ByteMe

@straker And black people everywhere thank god that straker is in the wrong century.

Hedley_Lammar
Hedley_Lammar

@straker There should be referendums in every State to decided the issue of gay marriage.


Should there have been referendums in every state concerning civil rights for African Americans ?


Should states who decide to ban gay marriage be forced to recognize marriages from other states that don't ?

Caius
Caius

@HeadleyLamar @straker "Should states who decide to ban gay marriage be forced to recognize marriages from other states that don't ?"

Decided in 1787 with the writing of the US Constitution: 

"Article IV,  Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

JeffJankowiak
JeffJankowiak

@straker  Can you even consider what it would be like if we voted on your marriage?  You would be screaming like a little girl.

JFMcNamara
JFMcNamara

"As recent events show a rising desire to punish dissenters, the absence of balance could do more harm to liberty than good."

This makes no sense at all. The government did not punish anyone. You have freedom of speech and expression meaning you can't be jailed by the government. You can still face consequences from the citizenry. Can't private businesses do what they want? Isn't that one of your Bugaboo's? Your logic is that Private businesses are free to discriminate but not face consequences from the other side?

Secondly, what liberty is being harmed? Your liberty to discriminate in violation of the Constitution? You don't want the court to decide this because you want discrimination to remain legal until the majority change their mind? Really? Seriously?

I though Republicans loved the Constitution, but that obviously only when they agree with it.

John Galt 47
John Galt 47

@JFMcNamara The Constitution says nothing about marriage. It should be decided at the state or local level.

JeffJankowiak
JeffJankowiak

@John Galt 47 @JFMcNamara  Sorry John. The constitution says absolutely nothing about cell phones, automobiles and the internet but we have been able to use these awesome documents to resolve issues on this topics.   And for the record, marriages and family law is left to the states as long as the states to not violate the 1st and 14th. 

Phil2413
Phil2413

@John Galt 47 @JFMcNamara It does, however, have this thing called the "equal protection" clause.  If a state allows a right to hero couples, it should afford the same right to homosexual couples, unless there's a valid state purpose otherwise-to which no reasonable rebuttals have been made that I can see-slavery was a tradition for centuries