Commentary Magazine


Topic: gay marriage

The GOP’s Gay Marriage Dilemma

The reaction to yesterday’s U.S. Supreme Court decision not to hear challenges to lower court rulings invalidating gay marriage bans in various states provided some insight on the cultural shift inside the Republican Party. While Senator Ted Cruz blasted the Supremes for allowing the courts to usurp the right to define marriage from the states, the silence from much of the GOP was deafening. While the issue may be important to anyone, like Cruz, who intends to run for the 2016 GOP presidential nomination, much of the rest of the party may be taking the hint from the courts.

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The reaction to yesterday’s U.S. Supreme Court decision not to hear challenges to lower court rulings invalidating gay marriage bans in various states provided some insight on the cultural shift inside the Republican Party. While Senator Ted Cruz blasted the Supremes for allowing the courts to usurp the right to define marriage from the states, the silence from much of the GOP was deafening. While the issue may be important to anyone, like Cruz, who intends to run for the 2016 GOP presidential nomination, much of the rest of the party may be taking the hint from the courts.

Cruz’s willingness to jump out front on the issue is another indication that he intends to add social conservatives to a coalition that already includes Tea Party stalwarts as well as some who are enamored of his strong foreign-policy stands. But while he won’t be the only candidate seeking their votes, it’s not exactly surprising that he didn’t face much competition for airtime about the decision yesterday from leading Republicans. The position of anyone nominated by the party will be support for a definition of marriage as being between one man and one woman. But though support for measures limiting abortions or banning late-term procedures that are seen as akin to infanticide remains strong among most Republican constituencies, the general lack of outrage about gay marriage yesterday outside of social conservative circles can easily be interpreted as indicating that most in the GOP think this is not an issue on which they think most Americans are behind them.

In choosing to punt on the appeals of various lower court decisions invalidating state measures banning gay marriage, the Supreme Court seemed to be saying that they won’t take up this issue again until one of the appeals courts is ready to uphold such laws. But in ruling in favor of gay marriage as a right that states can’t invalidate, lower federal courts are following the high court’s lead. Last year the court both allowed a state court to strike down a California referendum and separately ruled against the federal Defense of Marriage Act’s provision that barred benefits for same sex couples. While the court could have taken up any one of the appeals from states yesterday and handed down a definitive ruling on the issue, it seems to prefer to let the process unfold on a lower level. As it often has during its history, the court is listening to public opinion and what it’s hearing is that most Americans are no longer opposed to gay marriage.

The cultural shift on this issue has been as swift as it has been decisive, but as much as social conservatives are right to complain about the courts usurping the right of the people or the legislatures to make up their own minds on marriage, the polls are following popular culture on this point. Admitting this does not mean social conservatives no longer have support on any of their key issues. Americans remain deeply divided on abortion. But gay marriage is no longer a point on which most are prepared to argue. Indeed, as acceptance of the change grows more widespread with it now available in 30 states, even some conservatives are starting to admit that gays marrying doesn’t really affect them or their families.

The question is whether the Republican Party is ready to follow suit. Senator Rand Paul may currently find himself out of touch with many in his party on foreign and defense policy as the isolationist moment in American politics may be over. But as Greg Sargent noted this weekend in the Washington Post, his less strident tone on marriage may actually be more in tune with popular sentiment among Republicans than many thought.

But the problem for Republicans is that while they will be debating gay marriage, the rest of the country is no longer much interested in the discussion. Indeed, Paul’s argument that perhaps just as Republicans don’t want the government involved in their lives in other respects they might now be better off saying that it should stay out of marriage too may be a lot more popular than his foreign-policy views these days.

Social conservatives and evangelicals remain a key GOP constituency, but even if most Republicans are sympathetic to their concerns, the idea of letting the party get stuck in an argument that no longer resonates for most of the country should alarm them. With the conservative majority on the Supreme Court and the party’s establishment waving the white flag on gay marriage, this is one issue on which social conservatives may have lost all of their key allies.

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Lessons From Hillary’s Bad Week

Hillary Clinton’s decision to try to clear the Democratic presidential field this far out from Election Day was widely viewed as her best chance to win the nomination. The drawback, however, was that she would put herself immediately under the glare of the media she so overtly detests.

But maybe that’s also a benefit. Hillary’s sense of entitlement and combative, defensive, accusatory nature was always going to result in a series of gaffes and missteps. If this week was any indication, Clinton will try to get them all out of the way long before the “official” campaign begins. Perhaps by the time the real campaign rolls around, they will be long forgotten. Clinton can take solace in the fact that the 24-hour news cycle means the two and a half years until the election constitute a lifetime in politics.

But the real question is whether Clinton will learn from these early mistakes or repeat them. On Monday, Clinton was under fire for claiming–absurdly–that she was broke leaving the White House. Her former spokeswoman defended her by explaining that, well, broke is kind of a relative term, especially for a family like the Clintons. Clinton’s mistake here was thinking that Democrats are being honest when they demonize wealth, when in reality they celebrate making money if you’re getting paid to demonize the wealth of others. Lesson learned?

On Tuesday, Clinton dealt with the fallout from her absolutely horrendous answer on her culpability for the tragedy in Benghazi: “I take responsibility, but I was not making security decisions.” The Washington Post’s media writer took note of the disastrous portion of the interview:

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Hillary Clinton’s decision to try to clear the Democratic presidential field this far out from Election Day was widely viewed as her best chance to win the nomination. The drawback, however, was that she would put herself immediately under the glare of the media she so overtly detests.

But maybe that’s also a benefit. Hillary’s sense of entitlement and combative, defensive, accusatory nature was always going to result in a series of gaffes and missteps. If this week was any indication, Clinton will try to get them all out of the way long before the “official” campaign begins. Perhaps by the time the real campaign rolls around, they will be long forgotten. Clinton can take solace in the fact that the 24-hour news cycle means the two and a half years until the election constitute a lifetime in politics.

But the real question is whether Clinton will learn from these early mistakes or repeat them. On Monday, Clinton was under fire for claiming–absurdly–that she was broke leaving the White House. Her former spokeswoman defended her by explaining that, well, broke is kind of a relative term, especially for a family like the Clintons. Clinton’s mistake here was thinking that Democrats are being honest when they demonize wealth, when in reality they celebrate making money if you’re getting paid to demonize the wealth of others. Lesson learned?

On Tuesday, Clinton dealt with the fallout from her absolutely horrendous answer on her culpability for the tragedy in Benghazi: “I take responsibility, but I was not making security decisions.” The Washington Post’s media writer took note of the disastrous portion of the interview:

Another telling moment came when Sawyer placed before Clinton all the warnings that bad things were afoot in Benghazi. “Did you miss it? Did you miss the moment to prevent this from happening?” Sawyer asked. Clinton’s response started with these two words: “No, but …”

The lesson here seems to be that Clinton bought into the left’s idea that Benghazi is a silly controversy and there’s nothing left to answer for. That’s not remotely true, as Diane Sawyer showed when she pressed Clinton to offer more than a canned one-line dismissal and actually answer detailed questions about what went wrong.

Yesterday, Clinton had yet another difficult interview, this one about her flip-flop on gay marriage. When gay marriage was unpopular, Clinton was opposed. Once it was advantageous in a Democratic primary to support it, that’s where she found herself. It’s a reminder that Clinton is a walking focus group. (Her “memoir has the cautious, polished, poll-tested feel of a campaign speech,” complains the Economist.)

Here’s Politico on Clinton’s interview with NPR:

NPR’s Terry Gross was interviewing Clinton about her newly released memoir, “Hard Choices.” She repeatedly asked the former secretary of state whether her opinion on gay marriage had changed, or whether the political dynamics had shifted enough that she could express her opinion.
“I have to say, I think you are being very persistent, but you are playing with my words and playing with what is such an important issue,” Clinton said.

“I’m just trying to clarify so I can understand …” Gross said.

“No, I don’t think you are trying to clarify,” Clinton snapped back. “I think you’re trying to say I used to be opposed and now I’m in favor and I did it for political reasons, and that’s just flat wrong. So let me just state what I feel like you are implying and repudiate it. I have a strong record, I have a great commitment to this issue, and I am proud of what I’ve done and the progress we’re making.”

There’s more, but that’s probably the worst of it. The lesson here would be that it’s OK with Democrats to have flip-flopped on this. They’ll say you “evolved,” as long as you offer some kind of plausible explanation. Clinton doesn’t have to shy away from her hypocrisy, but she has to avoid getting so defensive that she gives the impression she has something to hide.

Will she learn the lessons of her disastrous week, and get the hang of campaigning? The silver lining for Clinton is that regardless of the answer to that question, this week’s missteps are sure to be ancient history in 2016.

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Democrats and the Forever (Culture) War

The latest Washington Post/ABC News poll is quite miserable for Democrats, and party strategists will no doubt mine the data for clues as to how to recover their standing before the midterms. There are two obvious choices: reinforce the party’s strengths–that is, where they best Republicans in the minds of the voters–or seek to improve their numbers on issues weighing them down. Unfortunately for those hoping for a more substantive debate on the issues this fall, the they are likely to choose the former.

That means, in a nutshell: get ready for an aggressive escalation in the “war on women.” Here’s the Post’s summary of the issues that favor Democrats and those that favor Republicans:

Democrats have a significant advantage on eight issues, from health care to climate change to abortion and same-sex marriage. Democrats have a smaller advantage on immigration, and the two parties are roughly equal on the economy. Republicans have the edge on three — guns, the deficit and striking the right balance on which government programs to cut.

Where Democrats have the biggest advantages are on the same contrasts that helped Obama win reelection in 2012 — indicators of which party voters believe is on their side. By 52 to 32 percent, those surveyed say they trust Democrats to do a better job helping the middle class, and by 55 to 25 percent, they trust Democrats on issues that are especially important to women.

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The latest Washington Post/ABC News poll is quite miserable for Democrats, and party strategists will no doubt mine the data for clues as to how to recover their standing before the midterms. There are two obvious choices: reinforce the party’s strengths–that is, where they best Republicans in the minds of the voters–or seek to improve their numbers on issues weighing them down. Unfortunately for those hoping for a more substantive debate on the issues this fall, the they are likely to choose the former.

That means, in a nutshell: get ready for an aggressive escalation in the “war on women.” Here’s the Post’s summary of the issues that favor Democrats and those that favor Republicans:

Democrats have a significant advantage on eight issues, from health care to climate change to abortion and same-sex marriage. Democrats have a smaller advantage on immigration, and the two parties are roughly equal on the economy. Republicans have the edge on three — guns, the deficit and striking the right balance on which government programs to cut.

Where Democrats have the biggest advantages are on the same contrasts that helped Obama win reelection in 2012 — indicators of which party voters believe is on their side. By 52 to 32 percent, those surveyed say they trust Democrats to do a better job helping the middle class, and by 55 to 25 percent, they trust Democrats on issues that are especially important to women.

The Post notes that there isn’t much evidence that such issues could turn the Democrats’ electoral momentum around. They tend to be base issues, but the usual drop in turnout for non-presidential years means Democrats are likely to need a broader coalition. To do that, they would need to make headway on ObamaCare. The Post details the split on the left on how to do that, shining some light the fact that the Obama White House might be a more significant obstacle for them than Republicans:

The Affordable Care Act is expected to be a major issue in the midterm elections. Obama recently urged Democrats to defend the law energetically, particularly after the administration announced that 8 million people signed up for it during the initial enrollment period. …

A number of Democratic strategists are urging their candidates to campaign on a message that calls for continued implementation of the law, with some fixes. These strategists say that message is more popular than the “repeal and replace” theme of the Republicans.

Democrats want to be able to offer legislative fixes to ObamaCare. This is perfectly logical; even if Republicans are correct about all the damage the law is doing, it’s easy to see why an argument that rolling “fixes” to correct the immediate ObamaCare-caused crises would appeal to those currently experiencing those crises. Republicans in Congress are amenable to this, having supported legislation to unburden the public with some of the more damaging aspects of ObamaCare.

But Obama doesn’t want such legislative fixes, for two reasons. First, he’s not exactly Mr. Humility. He tends, instead, to live in a bubble and simply ignore the facts that conflict with his ideological inflexibility. He prefers “the debate is over” and “the Affordable Care Act is working” to something more nuanced and self-critical. Second, the changes he does make to ObamaCare are done quietly (see reason No. 1) and lawlessly, by executive discretion. He doesn’t see a reason to pass new legislation when he’s ignoring the legislation it’s built on. You have to admit, there’s a certain calculated rationality to it.

But Democrats are united on the “war on women” they’ve invented, and will thus seek new ways to press this delusion. At times, this produces some unintentional comedy, as when male Democrats use this playbook against female Republicans. Male Democrats running on the “women hate women” platform are probably going to struggle to connect to any voters not already in their camp. One example of this was Michigan Democrat Gary Peters, who is running against Terri Lynn Land. Land’s response was priceless, and appropriate.

More broadly, Democrats use the “war on women” construct to argue for unlimited abortion, one of the more divisive social issues of the day. And the Post notes they possess an advantage on the issue of gay marriage, which, along with the Obama administration’s insistence on taxpayer funded birth control, has become a centerpiece of the left’s efforts to punish thought-outliers and erode religious liberty. If the Democrats are going to double down on their perceived strengths for the midterms, that will likely mean firing many more shots in the culture war. And with the party prepared to anoint Hillary Clinton two years later, don’t expect it to let up any time soon.

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An Impressive Stand on Behalf of Liberal Ideals by Gay Marriage Advocates

A group of prominent advocates for same-sex marriage signed a statement arguing for both the freedom to marry and the freedom to dissent.

This statement comes in the aftermath of the forced resignation of the CEO of Mozilla, Brendan Eich, because of a donation he made in 2008 on behalf of California’s Proposition 8, which would have upheld the traditional definition of marriage. The statement points out that there is no evidence that Mr. Eich believed in or practiced any form of discrimination against Mozilla’s LGBT employees. No matter; he was still forced out.

This action signaled “an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree,” according to the statement. “We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.”

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A group of prominent advocates for same-sex marriage signed a statement arguing for both the freedom to marry and the freedom to dissent.

This statement comes in the aftermath of the forced resignation of the CEO of Mozilla, Brendan Eich, because of a donation he made in 2008 on behalf of California’s Proposition 8, which would have upheld the traditional definition of marriage. The statement points out that there is no evidence that Mr. Eich believed in or practiced any form of discrimination against Mozilla’s LGBT employees. No matter; he was still forced out.

This action signaled “an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree,” according to the statement. “We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.”

The statement went on to point out that diversity is the natural consequence of liberty, saying:

Much of the rhetoric that emerged in the wake of the Eich incident showed a worrisome turn toward intolerance and puritanism among some supporters of gay equality—not in terms of formal legal sanction, to be sure, but in terms of abandonment of the core liberal values of debate and diversity.

Sustaining a liberal society demands a culture that welcomes robust debate, vigorous political advocacy, and a decent respect for differing opinions. People must be allowed to be wrong in order to continually test what is right. We should criticize opposing views, not punish or suppress them.

The declaration goes on to invoke the memory of Franklin Kameny, one of America’s earliest gay-rights proponents, who lost his job in 1957 because he was gay. We’re now living in a time when those who oppose gay marriage are being fired.

Neither situation–firing people because they are gay or firing people because they oppose gay marriage–is right; and the efforts by the signatories of this letter to stand up for classical liberal ideals and push back against those with whom they agree on the matter of gay marriage is admirable and important.

As I wrote about before on this matter, “When the dust finally settles, we still have to live together … Surely treating others with a certain degree of dignity and respect shouldn’t be too much to ask of those who oppose gay marriage and those who support it.”

The signatories of the statement have done their part, and I for one am grateful to them for having done so. 

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When Does a Once Widely Held Opinion on a Public Issue Become Unacceptable?

The uproar over the forced resignation of Brendan Eich at Mozilla last week (see Jonathan’s excellent post from yesterday) is certainly called for. After all, Eich’s transgression was to make a donation in support of a state constitutional proposition that ended up passing with 53 percent of the vote. In other words, he agreed with the majority of California voters and donated a modest sum to the cause. But a mere six years later, he has been pronounced a moral leper for having held such an outrageous and unacceptable view. It’s no more than the same view that was held by Barack Obama and Hillary Clinton in 2008.

I can think of no other major change in American society that has moved as swiftly as gay marriage. In 1960 it was, almost literally, unthinkable. The Stonewall Inn riot in New York in 1969 put gay rights on the political map, but gay marriage was not among the rights being demanded. By 1990 gay marriage was thinkable, but nowhere legal. Then in 2003, the Massachusetts Supreme Judicial Court legalized gay marriage in that state. In 2007, the Stonewall Inn was designated a National Historic Landmark. Today, gay marriage is legal in sixteen states and spreading rapidly to others. Because approval of gay marriage is strongly inversely correlated with age, it is as clear as anything in the future can be that gay marriage will be countrywide in the not distant future.

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The uproar over the forced resignation of Brendan Eich at Mozilla last week (see Jonathan’s excellent post from yesterday) is certainly called for. After all, Eich’s transgression was to make a donation in support of a state constitutional proposition that ended up passing with 53 percent of the vote. In other words, he agreed with the majority of California voters and donated a modest sum to the cause. But a mere six years later, he has been pronounced a moral leper for having held such an outrageous and unacceptable view. It’s no more than the same view that was held by Barack Obama and Hillary Clinton in 2008.

I can think of no other major change in American society that has moved as swiftly as gay marriage. In 1960 it was, almost literally, unthinkable. The Stonewall Inn riot in New York in 1969 put gay rights on the political map, but gay marriage was not among the rights being demanded. By 1990 gay marriage was thinkable, but nowhere legal. Then in 2003, the Massachusetts Supreme Judicial Court legalized gay marriage in that state. In 2007, the Stonewall Inn was designated a National Historic Landmark. Today, gay marriage is legal in sixteen states and spreading rapidly to others. Because approval of gay marriage is strongly inversely correlated with age, it is as clear as anything in the future can be that gay marriage will be countrywide in the not distant future.

I imagine that by 2030, gay marriage will be about as controversial as women’s suffrage is today. But women’s suffrage took 100 years to go from a glimmer in the eyes of its first advocates to a constitutionally mandated right. Slavery took nearly 200 years from the first objections to it among 17th century Quakers to its final abolition in this country. One can see the slow evolution of thought on the morality of slavery in the life of Benjamin Franklin. In the 1730s Franklin owned a couple of slaves who worked in his printing house. In the 1750s he wrote a famous essay on the economic inefficiency of slavery. By 1785 he was president of the Pennsylvania Abolition Society. Still it took another 80 years, and a war that cost 600,000 lives, before slavery was finally gone.

Both women’s suffrage and slavery were highly controversial issues in their day and honest men and women could be found on both sides. (Queen Victoria, for instance, was adamantly against votes for women.) Today, of course, the arguments of the losing sides of these issues seem silly and, often, downright evil.

But we are more than 90 years since the argument over women’s suffrage ended and nearly 150 since slavery was abolished. The issues are both dead and gone. It seems to me that only two years after Barack Obama himself “evolved” on the issue of gay marriage (please note: Democrats evolve on issues, Republicans flip flop) is much too soon for opponents of the idea to be cast into outer darkness.

But, then, liberals—addicted to their sense of moral superiority—are notoriously intolerant of dissenting views.

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Mozilla Has Rights. Just Like Hobby Lobby.

The forced resignation of Mozilla CEO Brandon Eich over his support for an anti-gay marriage referendum continued to provoke bitter debate over the weekend. After an initial burst of revulsion even from liberal pundits like Andrew Sullivan over the purge of a businessman from a company over his political beliefs by pro-gay thought police, many on the left have recovered their bearings and are reminding themselves that freedom of speech for me but not for thee has always been their guiding principle. Though some are a bit shame-faced to do so, some liberals have decided that punishing individuals for their personal politics is OK because those who hold opinions contrary to their own are not only wrong but so hateful that their mere presence undermines the efforts of those associated with them.

That this is rank hypocrisy is so obvious that it barely needs to be said. If, say, a liberal business executive were to be ousted from a similar position at a Fortune 500 company because a lot of the shareholders or executives at the business didn’t like the fact that he or she was a supporter of gay marriage or had donated to prominent liberal candidates for office, you can bet your stock portfolio and your mortgage payment that the mainstream media and every left-wing pundit in creation would be anointing such a person for sainthood rather than twisting themselves into pretzels in order to justify Eich’s defenestration, as so many have already done.

But in doing so, some on the left have, albeit unwittingly, stumbled into some truths about First Amendment rights that undermine their positions on an important case under consideration at the U.S. Supreme Court.

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The forced resignation of Mozilla CEO Brandon Eich over his support for an anti-gay marriage referendum continued to provoke bitter debate over the weekend. After an initial burst of revulsion even from liberal pundits like Andrew Sullivan over the purge of a businessman from a company over his political beliefs by pro-gay thought police, many on the left have recovered their bearings and are reminding themselves that freedom of speech for me but not for thee has always been their guiding principle. Though some are a bit shame-faced to do so, some liberals have decided that punishing individuals for their personal politics is OK because those who hold opinions contrary to their own are not only wrong but so hateful that their mere presence undermines the efforts of those associated with them.

That this is rank hypocrisy is so obvious that it barely needs to be said. If, say, a liberal business executive were to be ousted from a similar position at a Fortune 500 company because a lot of the shareholders or executives at the business didn’t like the fact that he or she was a supporter of gay marriage or had donated to prominent liberal candidates for office, you can bet your stock portfolio and your mortgage payment that the mainstream media and every left-wing pundit in creation would be anointing such a person for sainthood rather than twisting themselves into pretzels in order to justify Eich’s defenestration, as so many have already done.

But in doing so, some on the left have, albeit unwittingly, stumbled into some truths about First Amendment rights that undermine their positions on an important case under consideration at the U.S. Supreme Court.

Some, like the Guardian’s Mary Hamilton, rightly point out that the First Amendment doesn’t entitle Eich to a job at Mozilla. That is true, and I don’t believe any serious conservative critic of the Mozilla lynch mob has said any different. Mozilla and any other company have a perfect right to hire or fire anyone they like. Anti-discrimination laws don’t require liberals to hire conservatives or vice versa even though injecting political litmus tests into job searches are not conducive to hiring the best people. But when New York Times columnist Farhad Manjoo wrote that Eich had to be ousted from his position because Mozilla isn’t an ordinary company, that should have unsettled some on the left who have been mocking the idea that corporations have First Amendment rights. If Mozilla should be able to fire Eich because of his politics, how can liberals also argue with a straight face that Hobby Lobby should have to pay for abortion drugs?

The upshot of Manjoo’s piece was to say that rather than a soulless instrument of the technology business, Mozilla is a unique sort of company with a raison d’être that rises above mere commerce and must be nurtured by an individual who shares a vision of inclusiveness that excludes defenders of traditional marriage and other non-liberal concepts. By refusing to “recant,” as Farhad put it, he had demonstrated his inability to lead the company. As Michelangelo Signorile, the editor-at-large of the HuffPost’s Gay Voices wrote, “It’s about a company based in Northern California that has many progressive employees, as well as a lot of progressives and young people among the user base of its Firefox browser, realizing its CEO’s worldview is completely out of touch with the company’s — and America’s — values and vision for the future.”

That Mozilla’s employees and board members actually think it is consistent with American values or even “freedom of speech” (in the words of the company’s disingenuous announcement of Eich’s departure) to hound out of their midst someone who, though a supporter of gay rights in other respects, may disagree with them about marriage or support conservative candidates says something awful about such a group. But if that’s how they feel, then it’s their right to do so even as many on the outside of their cozy left-wing bubble enclave jeer at a version of “inclusiveness” that demands ideological conformity.

Ironically, Slate’s Mark Joseph Stern thinks conservatives are the hypocrites to complain about this because of the Hobby Lobby case. He thinks conservatives are only for protecting the First Amendment rights of companies when they allow people like the religious owners of the Hobby Lobby chain to oppose the Health and Human Services mandate that would force them to pay for abortion drugs for their employees but not for Mozilla to burn Eich at the stake. Wrong.

Conservatives have been consistent about the rights of corporations. It is the left that has always mocked the notion of First Amendment rights applying to corporations, principally in campaign finance law cases. Conservatives have correctly argued that individuals do not give up their right to political speech when they incorporate or engage in commerce. By claiming, as they now do, that the special culture of Mozilla requires it to root out all unbelievers in gay marriage or supporters of conservatives, but deny that Hobby Lobby has the right to protect its particular culture or the beliefs of its owners, liberals are the ones that are engaging in hypocrisy.

It would be nice if liberals were sufficiently self-aware of their inconsistency to cause them to “recant” and grant Hobby Lobby—which has an individual business culture just as special as the one at Mozilla—the same respect it demands for the Torquemadas who rule the roost in the high-tech sector. But I’m not expecting that to happen. The real problem here isn’t hypocrisy but a liberal mindset that views conservatives as not merely wrong, but evil. Eich’s fate shows that the decline of civility in our political culture may have become irreversible. But that makes it all the more important for the courts to defend the Constitution against the left’s crusade against the First Amendment with respect to political speech and faith.

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‘Big Love’ Vindicated: Polygamy and Privacy

Once you blow up a societal consensus it cannot be easily reconstructed to protect only those practices or beliefs you like while still banning those you think ought to be kept beyond the pale. That’s the upshot of a case decided late on Friday in a Federal District Court in Salt Lake City, Utah that essentially decriminalized polygamy. The case, Brown v. Buhman, which was brought by the stars of Sister Wives, a TLC cable channel reality show depicting the life of a man with four wives and 17 children, who challenged the Utah statute that not only prohibited marriage with more than one spouse but said it was illegal for a person to cohabit with someone who was not their legal spouse. Citing the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling that struck down state laws that prohibited sodomy, Judge Clark Waddoups heeded the plaintiffs’ argument that said Utah’s law violated their right to privacy.

While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.

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Once you blow up a societal consensus it cannot be easily reconstructed to protect only those practices or beliefs you like while still banning those you think ought to be kept beyond the pale. That’s the upshot of a case decided late on Friday in a Federal District Court in Salt Lake City, Utah that essentially decriminalized polygamy. The case, Brown v. Buhman, which was brought by the stars of Sister Wives, a TLC cable channel reality show depicting the life of a man with four wives and 17 children, who challenged the Utah statute that not only prohibited marriage with more than one spouse but said it was illegal for a person to cohabit with someone who was not their legal spouse. Citing the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling that struck down state laws that prohibited sodomy, Judge Clark Waddoups heeded the plaintiffs’ argument that said Utah’s law violated their right to privacy.

While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.

It should be specified that the federal court decision doesn’t get us quite there yet. Utah’s polygamy law is still on the books, but hanging by a thread. As the Salt Lake Tribune explained:

Utah’s bigamy statute technically survived the ruling. However, Waddoups took a narrow interpretation of the words “marry” and “purports to marry,” meaning that bigamy remains illegal only in the literal sense — when someone fraudulently acquires multiple marriage licenses.

But by saying that the Utah law violated the plaintiffs’ right to free exercise of religion guaranteed by the First Amendment as well as infringing on their right to privacy—the legal principle that served to take down state laws prohibiting contraception and homosexuality—Waddoups has merely taken the next logical step toward legalized polygamy that will, sooner or later, allow polygamists the same rights as other married people.

There are reasons to worry about this. As Stanley Kurtz wrote in the Weekly Standard back in 2006, there is an inherent contradiction between the patriarchal model of polygamy where the husband has authority over his various wives and democracy. Kurtz argued that the 1879 U.S. Supreme Court ruling in Reynolds v. United States that supported the right of states to restrict polygamy not only protected traditional marriage but democratic norms. Prior to the Mormon Church’s renunciation of polygamy, Utah was for all intents and purposes a theocracy. In a society where husbands rule over families like ancient Eastern potentates, freedom isn’t likely to thrive.

According to Kurtz:

Marriage, as its ultramodern critics would like to say, is indeed about choosing one’s partner, and about freedom in a society that values freedom. But that’s not the only thing it is about. As the Supreme Court justices who unanimously decided Reynolds in 1878 understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.

When Kurtz wrote his piece, the debate over polygamy was just starting to bubble up in no small part because of the premiere of the HBO series Big Love which ran from 2006 to 2011. The show contrasted the “good polygamy” of its protagonist Bill Hendrickson, an upwardly mobile Viagra-popping entrepreneur who just happened to have three highly attractive wives with the “bad polygamy” of the cult living in a remote compound dominated by an evil “prophet” and his son, a repressed homosexual. If one ignores the religious dimensions of the argument between the LDS church and fundamentalist Mormons that was part of the subtext, the series presented the choice of plural marriage as one that ought to be encompassed by the promise of American liberty.

Indeed, that’s the point made by Georgetown University law professor Jonathan Turley, who represented the plaintiffs in the Utah case. As the New York Times reports, Turley believes that the Utah case is about “privacy rather than polygamy” but also noted:

Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.

In 2006, Kurtz cited Turley’s writings in the wake of Lawrence as a sign that the country was heading toward “a final slide down the slippery slope.” He was right about that, at least as far as gay marriage and polygamy were concerned. But it remains to be seen whether his worries about the future of democracy are similarly prescient. Even in rural Utah, polygamy is something practiced by only a small minority. It is difficult to make the case that either the fictional Hendricksons or the reality stars of Sister Wives present much of a challenge to American democracy. Nor, as Turley rightly argued in court, is there any reason to cite abuses, especially of minors, by cults as unique to polygamy since incest, mistreatment of children, and welfare fraud can also be found in sectors of society that purport to support monogamy.

But liberals like Turley still refuse to acknowledge that Justice Antonin Scalia was right when he predicted in his dissent in Lawrence that the demise of sodomy laws would lead to the legalization of some things that advocates of gay rights wanted no part of. If we have “evolved” to the point where marriage by any two consenting adults of either sex should be recognized by the state, then there isn’t any logical or legal rationale for prohibiting the same privilege for any number of citizens cohabiting to claim the same right.

All that is needed is a little candor on this issue on the part of critics of the dwindling band of opponents of gay marriage. The floodgates have been opened, and if that makes some of us uncomfortable, especially those who understandably view polygamy as synonymous with the exploitation of women, then we should be honest enough to acknowledge that it is merely part of the price that had to be paid to give gays the same right to marry afforded to other citizens.

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Christie’s Gay Marriage Punt and 2016

On its face, Governor Chris Christie’s decision not to go down fighting the legalization of gay marriage in New Jersey was merely bowing to the inevitable. Though he has always opposed gay marriage and even vetoed a bill authorizing it that came out of the legislature, Christie told his attorney general to drop a planned appeal of a state Supreme Court ruling that had refused to delay the start of gay marriage in New Jersey. Given the unanimity of the court and the wording of the preliminary decision, Christie was right to think that even if he continued to fight it, the court was going to do what the legislature had failed to do: overrule the governor and institute gay marriage. But, as Politico notes, there are going to be some conservatives who will add this decision to a list of reasons why they will oppose a Christie run for the Republican presidential nomination in 2016.

Yet as with the governor’s recent flip-flop on in-state tuition benefits for illegal immigrants, Christie is clearly not approaching policy questions demonstrating any worry about appealing to conservative Christian voters who play a large role in GOP presidential primaries. Indeed, as Politico notes today, Christie may have already decided that gestures toward pleasing that group may do his prospects more harm than good. Even though comparisons with Rudy Giuliani’s disastrous 2008 presidential candidacy are unfair since Christie is far more conservative on social issues than the former New York City mayor, Christie is clearly acting as if the same forces that doomed that moderate’s hopes cannot do the same to him.

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On its face, Governor Chris Christie’s decision not to go down fighting the legalization of gay marriage in New Jersey was merely bowing to the inevitable. Though he has always opposed gay marriage and even vetoed a bill authorizing it that came out of the legislature, Christie told his attorney general to drop a planned appeal of a state Supreme Court ruling that had refused to delay the start of gay marriage in New Jersey. Given the unanimity of the court and the wording of the preliminary decision, Christie was right to think that even if he continued to fight it, the court was going to do what the legislature had failed to do: overrule the governor and institute gay marriage. But, as Politico notes, there are going to be some conservatives who will add this decision to a list of reasons why they will oppose a Christie run for the Republican presidential nomination in 2016.

Yet as with the governor’s recent flip-flop on in-state tuition benefits for illegal immigrants, Christie is clearly not approaching policy questions demonstrating any worry about appealing to conservative Christian voters who play a large role in GOP presidential primaries. Indeed, as Politico notes today, Christie may have already decided that gestures toward pleasing that group may do his prospects more harm than good. Even though comparisons with Rudy Giuliani’s disastrous 2008 presidential candidacy are unfair since Christie is far more conservative on social issues than the former New York City mayor, Christie is clearly acting as if the same forces that doomed that moderate’s hopes cannot do the same to him.

To argue that Christie’s decision will enable his opponents to label him pro-gay marriage seems a stretch. After all, Christie has been a firm opponent of the measure and even now says he believes the court was wrong to impose its view on the state rather than to let it be subject to the usual constitutional process for legislation. If anything, this chain of events enables Christie to make an argument about the destructive impact that activist judges have on the country, something that should appeal to conservatives.

There will be some who will claim that he should have gone down fighting preventing gay marriage. But though he has an impeccable pro-life record, he will never outdo some of his prospective conservative rivals in that respect. More than that, Christie may feel that the culture is changing on attitudes to gays so quickly that the issue won’t be a real factor even in a Republican primary. That’s especially true if the conservatives will be battling each other for the same social-issues voters while Christie has, as was the case with Mitt Romney in 2012, little competition for more moderate Republicans.

That said, no one should underestimate the hard feelings against Christie that are brewing on the Republican right. While Christie can rightly claim to be a tough-minded critic of liberals and their institutions, such as teachers’ unions, as well as having governed as a conservative in a blue state, some Tea Partiers seem to think of him as a creature of the left. In a political atmosphere that has grown more toxic as the GOP tears itself apart in the wake of the government shutdown, Christie may well become the hard right’s piñata and, along with Senator Mitch McConnell, their favorite scapegoat for all conservative defeats.

The expectation all along has been that once Christie is safely reelected next month, he will begin the process of drifting to the right in order to set up a presidential campaign. But his gay marriage decision may be one more piece of evidence that Christie has already made his peace with the fact that the right will fight his candidacy in 2016 and that he believes he can beat them anyway.

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On Turning Political Opponents into Moral Monsters

I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

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I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.

It’s worth pausing over what Justice Scalia is saying here, which is that we’re all susceptible to weaving narratives that are black and white, that truth is often more complicated than that, and that it’s hard to admit that one’s political opponents are not monsters, especially in a struggle like this one.

I’ve written in the past about this phenomenon. We often deny to those with whom we disagree any benefit of the doubt, since we assume they see facts, events and justice just as we do. This makes their differing conclusions from us very nearly impossible to comprehend–and in turn makes it easy to characterize one’s opponents as pernicious. It would help our political culture if we understood that every one of us has an imperfect angle on reality; that our perception of justice is always at least a bit distorted; and that all of us see through a glass darkly and know things only in part. 

To be sure, this is not an argument against spirited and intense disagreements (I’ve been involved in a few of those myself over the years). Nor do I mean to imply that some people aren’t closer to perceiving truth and wisdom than others. It’s simply to say that Justice Scalia is correct; in politics, in judicial and theological disputes, and in life generally, it’s sometimes hard to admit that our political opponents, while they may be wrong, are not monsters. They are, in fact, fellow citizens. Which is probably worth remembering on days like this and in the aftermath of decisions like this.

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A Ruling Without Reason

This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

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This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism,” the majority writes–and not because the state has exclusive sovereignty over the regulation of marital relations. Rather, according to the majority, the power of the state is central because in this case New York State passed a statute of which the majority approved. The recognition by New York State of same-sex marriage “enhanced the recognition, dignity, and protection of the class in their own community.” According to the majority, the federal government snatched away that “recognition, dignity, and protection” in a fit of homophobic animus with the Defense of Marriage Act. “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

This is starting to look like an equal protection argument until the majority again veers off course. It does not engage in a rigorous equal protection analysis based on an established standard of constitutional scrutiny–the rational basis test, which seeks some legitimate government interest underpinning a statute, or the strict scrutiny test, which seeks some compelling government interest supporting a statute, or even the heightened scrutiny test, which is an intermediate level of review. Instead, the Court declares DOMA a violation of the Fifth Amendment’s equal protection component demanding “careful consideration.”

Careful consideration of what?

The Court does not say. To wit, careful consideration is a standard of review conferred upon menus, brochures, and resumes, not constitutional claims for equal protection of the laws. So while supporters of same-sex marriage celebrate the outcome in United States v. Windsor, the victory may well prove pyrrhic. The degree of constitutional protection to which homosexuals are entitled is no more clear today than it was on the day that DOMA was enacted in 1996. What is more, proponents of federalism have cause for concern. By refusing to hold categorically that the states are sovereign over the regulation of familial relations within their boundaries, the Court left open the possibility of future federal legislation in that field. The Court’s decision in Windsor has neither vindicated gay rights nor championed federalism. Rather, with what Justice Scalia scathingly characterizes as a “disappearing trail of . . . legalistic argle-bargle,” the majority has presented the nation with a policy choice clothed in tatters of doctrine.

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On DOMA, SCOTUS Follows the Culture

Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

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Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

While Justice Kennedy derided the willingness of Congress to step into what most Americans consider a point about morality and to, in effect, discriminate against gay couples, the question of whether such discrimination is legal or not has always tended to be based on popular opinion as much as law. This is a key point because as Justice Antonin Scalia pointed out in his dissent in the 5-4 vote on DOMA, Congress has always considered itself to have the right to legislate on morality. But that is only true so long as there is a consensus about what is moral and what is not. In the 1990s, the long held consensus that the traditional definition of marriage is the only one the government should recognize still held. If that is no longer true, and it is obvious that this is the case, then it is inevitable that the law will follow the culture.

For example, even today as much of America celebrates the newly enshrined concept of marriage equality, few seem to have any problem prohibiting two or three women from marrying the same man and in treating such “Big Love” marriages as being beyond the pale of the law’s protection. Under the logic of the DOMA decision, that ought not to be true. But even to ask the advocates of gay marriage if their victory should extend to polygamous spouses would probably be viewed as a provocation rather than a reasonable question. Perhaps that will no longer be true in a generation, but unless the entertainment industry is prepared to start including more “plural marriage” characters in its situation comedies, I wouldn’t bet on it.

The defenders of traditional marriage can console themselves that the majority in the DOMA case did not overreach in the manner of the authors of the Roe v. Wade decision and have not attempted to mandate gay marriage throughout the country. They have wisely left the decision about whether to legalize such unions to the states. Doing so reaffirms the basic concepts of federalism and allows those states that refuse to accept gay marriage to go on doing so. That may change if Hillary Clinton is elected president in 2016 and is able to replace some of the court’s conservatives with liberals. At that point the court may strike down all state laws or constitutional amendments that do not conform to this standard, which is something they refused to do in the California Proposition 8 case today where they merely said the plaintiffs had no standing to defend the statute.

But the point here is that gay marriage advocates won the legal war because they first won the culture war. Those conservatives who hope to avoid the same outcome on other issues would do well to remember that. 

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The Gay Marriage Debate

I certainly agree with Peter Wehner and Jonathan Tobin that the sudden shift in public opinion in favor of same-sex marriage is quite remarkable and surely portends that in another generation, same-sex marriage will be about as controversial as votes for women. That is, as long as the court doesn’t hand down another Roe v. Wade and take the issue out of the political arena where issues such as this are properly settled.

Let me add just one thing regarding the main conservative reasoning for upholding DOMA. As the Wall Street Journal editorial today sympathetically put it:

Mr. Clement responded to Justice Kennedy that Doma merely defined marriage for the purposes of federal law, such as Social Security benefits. After the Hawaii supreme court had legalized gay marriage and upset the traditional definition, Congress in 1996 naturally adopted a uniform rule for federal benefits but allowed the states to debate and adapt to changing social mores.

This is nonsense.

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I certainly agree with Peter Wehner and Jonathan Tobin that the sudden shift in public opinion in favor of same-sex marriage is quite remarkable and surely portends that in another generation, same-sex marriage will be about as controversial as votes for women. That is, as long as the court doesn’t hand down another Roe v. Wade and take the issue out of the political arena where issues such as this are properly settled.

Let me add just one thing regarding the main conservative reasoning for upholding DOMA. As the Wall Street Journal editorial today sympathetically put it:

Mr. Clement responded to Justice Kennedy that Doma merely defined marriage for the purposes of federal law, such as Social Security benefits. After the Hawaii supreme court had legalized gay marriage and upset the traditional definition, Congress in 1996 naturally adopted a uniform rule for federal benefits but allowed the states to debate and adapt to changing social mores.

This is nonsense.

State marriage laws have always diverged, and significantly so in some cases. For instance, 19 states and Washington D.C. allow first-cousin marriages, 25 states forbid them, and six states allow them with restrictions (usually with reference to the age and/or fertility of the partners). The federal government had no problem with these divergences before 1995. For over 200 years, if you were legally married in the eyes of the state where you lived, then you were legally married as far as the federal government was concerned, no questions asked.

Then the Hawaii Supreme Court legalized same-sex marriage and Washington politicians all of a sudden “naturally” rushed to adopt a “uniform rule for federal benefits.” It was, of course, uniform in only one way: the marriage partners had to be of opposite sexes. And the law that “merely” set a uniform rule for federal benefits isn’t called the Uniform Rule for Federal Benefits Act, it’s called the Defense of Marriage Act.

Lawyers are paid to win the argument, not find the truth, of course. But if you buy Mr. Clement’s argument here, I have a really handsome bridge over the East River I’d like to sell you.

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The Stunning Public Shift on Same-Sex Marriage

The velocity of change in public attitudes on same-sex marriage–from being unimaginable not long ago to being fairly commonplace today and probably dominant tomorrow–is extraordinary, even unprecedented.

One obvious indicator of that is public opinion polls; another is the number of elected officials who are reversing their past position on gay marriage. We’re now at the point where embracing federalism–letting states rather than the Supreme Court decide the issue–defines the most reliably conservative position. Republicans who support same-sex marriage, from former Vice President Richard Cheney to Senator Rob Portman, (thankfully) aren’t in danger of excommunication. In fact, I know of almost no critic of gay marriage who relishes talking about the issue. 

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The velocity of change in public attitudes on same-sex marriage–from being unimaginable not long ago to being fairly commonplace today and probably dominant tomorrow–is extraordinary, even unprecedented.

One obvious indicator of that is public opinion polls; another is the number of elected officials who are reversing their past position on gay marriage. We’re now at the point where embracing federalism–letting states rather than the Supreme Court decide the issue–defines the most reliably conservative position. Republicans who support same-sex marriage, from former Vice President Richard Cheney to Senator Rob Portman, (thankfully) aren’t in danger of excommunication. In fact, I know of almost no critic of gay marriage who relishes talking about the issue. 

What explains this seismic shift? Books will be written examining this question. My own sense, more impressionistic than based on careful research, is that several factors are responsible for it. Changing mores is part of it, as is marriage having been delinked from certain past teleological assumptions. So are family members and friendships with people who have come out as gay. Much of it is generational, with huge majorities of young people supportive of gay marriage. And it’s undeniably true, I think, that the arguments advanced by people like Jonathan Rauch and Andrew Sullivan have carried the day, at least if you judge winning by persuading people to agree with your point of view.

I also believe that a central explanation for what we’re witnessing–and one related to the ingenuity and power of the Sullivan and Rauch arguments–is that they helped reposition the gay rights movement from libertine to conservative, from gays being a threat to our social order and institutions to wanting to be a respected part of them. They didn’t want to uproot marriage, they wanted to share in its blessings.

Once that shift occurred–once many Americans believed that the gay movement was de-radicalized and domesticated–much of the opposition to gay marriage began to dissipate. Not all at once, of course, and many Americans still oppose same sex marriage. (Ron Brownstein argues that that for the near future, “the nation appears locked onto a trajectory in which almost all reliably blue states will establish gay marriage (or civil unions) and possibly not a single reliably red state will follow.”) But because of the generational differences when it comes to gay marriage, there is little doubt where this issue is headed, regardless of what the Supreme Court decides.  

There will still be important issues to sort through, including how religious institutions and people of faith who oppose same sex marriage are treated. For example, will orthodox Christian churches and educational institutions, if deemed to be bigoted based on their opposition to gay marriage or homosexual conduct, eventually be treated in law like racist organizations? Will mainstream evangelical colleges one day be dealt with in the same way we did Bob Jones University? (In the early 1980s Bob Jones University lost its tax-exempt status because of its ban on interracial dating.) That may not happen. But if it were to occur, the debate could quickly shift in a different direction, from being seen by many as a celebration of individual rights to one that is viewed as an attack on religious liberty. 

For now, though, what has occurred is a stunning social shift, quite unlike anything we’ve ever seen.

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The Court, Marriage, and Federal Power

After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

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After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

Let’s first acknowledge that the culture war about homosexuality has been convincingly won by gays. Twenty years ago the already widespread acceptance of openly gay figures in pop culture had not transferred to the political sphere. Indeed, as recently as 2008, a staunch liberal like Barack Obama had to swear his opposition to gay marriage in order to be considered a mainstream political figure. But that is no longer the case. While national attitudes are still far from unanimous, anyone who would argue that the trend toward its acceptance is not accelerating to the point where opponents are becoming a beleaguered minority has not been paying attention. While defenders of traditional marriage can still put forward coherent arguments about the assault on the institution, appeals to the basic libertarian instincts of most Americans are winning the day for the pro-gay marriage point of view. Nor do the claims that gays marrying would materially damage straight marriages seem to have much traction. A political environment in which most people see the issue as one of equal rights for all citizens, as opposed to one about the distortion of the meaning of an institution to suit the whims of a minority, is not one that is sustainable for gay marriage opponents.

That is exactly why the courts can and should defer to the legislative process to sort out this issue.

It may be that the argument put forward that denying gay marriage is a violation of the Constitution’s 14th Amendment equal protection guarantees is accepted by most Americans. If the high court were to unilaterally rewrite the meaning of the Constitution in that way, it might please not only the media and the pop culture world but perhaps a majority of the country. But such a broad stroke would create other problems that are best avoided.

While seemingly harmless, the rush to codify gay marriage as a constitutional right contains within it the possibility of creating a genuine danger of discrimination against religious faiths that oppose the idea. Catholic institutions (already under assault from federal mandates on reproductive issues) as well as Orthodox Jews, the Greek Orthodox and a host of evangelical Protestant denominations could be put in the awkward position of not just being labeled as bigots but as possible law breakers because of their beliefs due to new requirements to recognize and grant benefits due to spouses. If there is to be a right of gay marriage it must be enacted with stipulations that exempt religious institutions as well as clergy from any repercussions from a refusal to go along with the new consensus. That is the sort of sensible compromise that is far more likely to be brought about by the legislative process than a top-down court ruling.

Gay marriage advocates argue in reply that civil rights cannot be subject to the majority vote but rather must be protected by the law regardless of the whims of the mob, as the founding fathers would have understood the issue. They point to the struggle for racial equality in this country in which the courts played a necessary role in both protecting liberty and in prodding the legislatures and public opinion to catch up with what was right. But however much this issue is represented as one that can only be understood as a question of equality, the creation of a new right via the redefinition of an institution is not quite the same thing as righting the wrongs of slavery. The pro-gay marriage side must understand that it is asking the federal government to go into uncharted waters in that respect, as well as by taking this issue away from local institutions that have always governed interactions between the state and married couples.

Change is best achieved when it is accomplished via the democratic process and with respect for the rights of individual states to sort these things out according to the beliefs of its citizens.

If gay marriage advocates are confident, as they probably should be, that time and public opinion are on their side, then they should concentrate their efforts on winning their battle in the legislatures. That is something they have been doing with increasing success in recent years. Were the court to short-circuit that struggle it would set off a new and bitter struggle over the issue that would distort our politics and roil the culture for years and perhaps decades to come.

While the temptation to enact an all-or-nothing proposition in response to the baffling choices before it may entice some of the justices, they should listen to the voices of caution and avoid such a solution. That might mean punting on the California case, in which it can be argued that Prop 8’s supporters don’t have the standing to argue against its invalidation by state courts, as well as by striking down DOMA as a wrongful federal interference with a state matter.

That would disappoint conservatives who hope the court might save the country from the drive to enshrine gay marriage in various states. But in these cases, as in so many other issues, the greater wisdom always rests in restraining the power of the federal government to impose its will on the states and the people. If America is truly “evolving”—as liberals would have it—toward acceptance of gay marriage, then let it do so by the democratic process and not by a court eager to stay ahead of or get out of the way of public opinion.

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Moral Presuppositions and Politics

In an essay that appears in a book he edited, Imaginative Apologetics, the theologian Andrew Davison tells about being in India and coming across a person with leprosy. As a Christian, he saw the leper and felt compassion and aided him, though much to the unease of Indians. It then struck him that those who believe in karma and reincarnation, as Hindus do, see a leper as someone atoning for past sins and doing what needs to be done for a future, and better, reincarnation. So they interpreted aiding the leper as doing something inappropriate.

Davison wrote, “We do not first see neutrally, and then interpret. The leper is seen as unfortunate, as someone upon whom to show pity, or seen as a miscreant, as someone to be reviled. Axioms operate at this very direct level as well as in more discursive reasoning.”

Professor Davison uses this illustration to show how our worldviews shape our interpretation of events and reality, to demonstrate how people can see the same situation and react to them in wholly different ways. 

This doesn’t mean there is no such thing as objective truth. I’m not post-modern enough to believe that reality is something that is simply shaped by, and objectionable actions can be simply excused by, interpretation. But Davison’s illustration can help civilize our politics just a bit. Let me explain what I mean.

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In an essay that appears in a book he edited, Imaginative Apologetics, the theologian Andrew Davison tells about being in India and coming across a person with leprosy. As a Christian, he saw the leper and felt compassion and aided him, though much to the unease of Indians. It then struck him that those who believe in karma and reincarnation, as Hindus do, see a leper as someone atoning for past sins and doing what needs to be done for a future, and better, reincarnation. So they interpreted aiding the leper as doing something inappropriate.

Davison wrote, “We do not first see neutrally, and then interpret. The leper is seen as unfortunate, as someone upon whom to show pity, or seen as a miscreant, as someone to be reviled. Axioms operate at this very direct level as well as in more discursive reasoning.”

Professor Davison uses this illustration to show how our worldviews shape our interpretation of events and reality, to demonstrate how people can see the same situation and react to them in wholly different ways. 

This doesn’t mean there is no such thing as objective truth. I’m not post-modern enough to believe that reality is something that is simply shaped by, and objectionable actions can be simply excused by, interpretation. But Davison’s illustration can help civilize our politics just a bit. Let me explain what I mean.

Most of us assume people see issues – abortion, same-sex marriage, gun control, higher taxes on top income earners, entitlement reform, illegal immigration, climate change, judicial originalism, criminal justice, enhanced interrogation techniques, drone strikes, the Iraq war, and many others – through essentially the same prism we do. But it’s rather more complicated than that. 

Our interpretative frame and intellectual and moral tropisms are the product of many factors. The philosopher Cornelius Van Til once said that there is no such thing as a brute fact. Our presumptions alter the way we interpret things, including justice. For example, if one views abortion entirely through the lens of a woman’s right to choose, then restricting abortions is a gratuitous offense. If one views abortion through the prism of the rights of an unborn child, on the other hand, then subsidizing abortion is a grave transgression.

Or take same sex marriage. Some believe championing gay marriage places one on the side of equality, tolerance, and human dignity, as heirs of the civil rights struggle. On the flip side, opponents of gay marriage often root their views in their understanding of male-female complementarity, procreation and the health of the institution of marriage. They are acting to defend what they believe are traditional and necessary social norms. The differences on this issue can be explained by reasons other than bigotry on the one hand or wanting to rip apart our social fabric on the other.

What happens is we tend to deny to those with whom we disagree any benefit of the doubt. We assume they see facts, events and justice just as we do, which makes their differing conclusions from us very nearly inexplicable. This in turn makes it easy to characterize one’s opponents as malignant. Only a cretin could hold views at odds with ours. See Paul Krugman’s attitude toward those who differ with him for more.

It really would help our political culture if we understood that every one of us has an imperfect angle on reality and that our presuppositions refract truth. That our perception of justice is always distorted, even just a little bit. All of us see through a glass darkly and know things only in part. 

That doesn’t mean that some people aren’t much closer than others to apprehending truth, beauty, and goodness. Nor do I believe for a moment that efforts at persuasion are fruitless. I just happen to believe that Professor Davison’s illustration is a good one to bear in mind from time to time. If we did, our politics might be characterized by a touch more grace, a bit less anger, and a little more sympathy. There are worse things in the world.

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GOP Can’t Be the Party of Old White Men

Mitt Romney did not lose the presidency last night because he was too “moderate” or because he was “severely conservative.” He did not lose because hurricane Sandy stopped his momentum or because he coasted to the finish line or because he did not press harder on questions about Benghazi. Romney lost because the Democratic Party enjoyed a six-point advantage in party identification last night, nearly as wide a gap between the parties as its seven-point advantage in 2008. Whether this is the emerging Democratic majority that John B. Judis and Ruy Teixeira predicted eight years ago, or whether it is merely an ad hoc coalition in support of Barack Obama’s unique candidacy, is a question that only time (and another election or two) can answer.

What is clear is that the Republican Party has painted itself into a demographic corner. Hispanics have turned decisively against it, and the young have too. On Fox News last night, the Democratic pollster and consultant Pat Caddell said the Republicans’ “branding problem is reminiscent of the Whigs.” Exactly so. If the party does not adapt to the shifting demographics of the American electorate, it will become a permanent minority, if not extinct.

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Mitt Romney did not lose the presidency last night because he was too “moderate” or because he was “severely conservative.” He did not lose because hurricane Sandy stopped his momentum or because he coasted to the finish line or because he did not press harder on questions about Benghazi. Romney lost because the Democratic Party enjoyed a six-point advantage in party identification last night, nearly as wide a gap between the parties as its seven-point advantage in 2008. Whether this is the emerging Democratic majority that John B. Judis and Ruy Teixeira predicted eight years ago, or whether it is merely an ad hoc coalition in support of Barack Obama’s unique candidacy, is a question that only time (and another election or two) can answer.

What is clear is that the Republican Party has painted itself into a demographic corner. Hispanics have turned decisively against it, and the young have too. On Fox News last night, the Democratic pollster and consultant Pat Caddell said the Republicans’ “branding problem is reminiscent of the Whigs.” Exactly so. If the party does not adapt to the shifting demographics of the American electorate, it will become a permanent minority, if not extinct.

The party—and the conservative movement for which it serves as the electoral arm—must be reformed. But where to begin? I am only a poor literary critic, not a political pundit, but I have some ideas. The Republicans are the party of married churchgoers at a time when marriage and churchgoing are in decline. Hence (at least in part) its declining share of the vote total. It can’t suddenly cease to be the party of married churchgoers without betraying itself and its core constituency. Marriage and churches are among the “mediating institutions” that conservatism most warmly affirms, because they stand between the individual and the encroachments of the state. To defend them is to defend freedom. (Calling the GOP the party of married churchgoers is just another way of calling it the party of freedom). Besides, to change course at this stage of history, to abandon the party’s core, is hardly guaranteed to arrest the decline.

If the Republicans are going to be the party of married churchgoers, though, they need to change their tune on two key issues. They must drop their opposition to same-sex marriage, and they must quit obsessing over illegal immigrants. These two issues alone are almost entirely responsible for the Republicans’ image and reputation as the party of old white men.

What conservatives do not seem to grasp is that same-sex marriage is not an issue for gays only, but also for the young, who support it overwhelmingly, without question. And if the GOP really is the party of marriage, shouldn’t it be in favor of extending the goods of marriage to as many as possible? If marriage is everything we conservatives say it is, why should we want to deny its moral benefits to gays? The point is to stand for marriage, for an institution that promotes human freedom, and not to barricade ourselves behind the status quo ante. That’s how the party of freedom becomes the party of reaction.

So too on immigration. What many on the right have failed to understand is that demands to tighten the border, loud howls of outrage over any proposal to grant amnesty to “illegal aliens,” are deeply offensive to Hispanics and likely to estrange them from the Republican Party for a generation. Tom Wolfe explains why. Like many on the right, he had always assumed that

Mexicans who had gone to the trouble of coming to the United States legally, going through all the prescribed steps, would resent the fact that millions of Mexicans were now coming into the United States illegally across the desert border. I couldn’t have been more mistaken. I discovered that everyone who thought of himself as Latin, even people who had been in this country for two and three generations, were wholeheartedly in favor of immediate amnesty and immediate citizenship for all Mexicans who happened now to be in the United States. And this feeling had nothing to do with immigration policy itself, nothing to do with law, nothing to do with politics, for that matter. To them, this was not a debate about immigration. The very existence of the debate itself was to them a besmirching of their fiction-absolute, of their conception of themselves as Latins. Somehow the debate, simply as a debate, cast an aspersion upon all Latins, implying doubt about their fitness to be within the border of such a superior nation.

The voices of immigration restrictionists on the right have pushed Hispanics into identifying with their ethnic group rather than encouraging them to identify themselves as something else instead—as churchgoers, for instance.

The Republican Party cannot win by playing the Democrats’ game of identity politics, but perhaps it might improve its chances by emphasizing a different kind of identity altogether—not identification with the special-interest groups that make up an unsteady coalition, but with stable institutions like marriage and church that enable men and women to be free.

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Could Gay Marriage Amendment Tip Minnesota to Romney?

That was George Will’s prediction on ABC’s “This Week” yesterday (h/t Jeff Poor): 

The anti-gay marriage amendment will bring religious voters out to the polls, but will it be enough of a margin to swing the vote for Romney? A couple of recent polls, including PPP’s yesterday, found that more voters oppose the anti-gay marriage amendment than support it. But if that’s the case on election day, it will be unprecedented — gay marriage has lost in all 32 states where it’s been up for a vote. If that changes in Minnesota tomorrow, it could mark the beginning of a political shift. 

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That was George Will’s prediction on ABC’s “This Week” yesterday (h/t Jeff Poor): 

The anti-gay marriage amendment will bring religious voters out to the polls, but will it be enough of a margin to swing the vote for Romney? A couple of recent polls, including PPP’s yesterday, found that more voters oppose the anti-gay marriage amendment than support it. But if that’s the case on election day, it will be unprecedented — gay marriage has lost in all 32 states where it’s been up for a vote. If that changes in Minnesota tomorrow, it could mark the beginning of a political shift. 

Beyond that, the polls are all over the place for Romney in Minnesota. Saturday’s poll by the conservative American Future Fund found the race a dead-heat. But yesterday’s PPP poll found Obama up by eight points, and today’s Survey USA found him leading by double-digits. So if Romney does win Minnesota, it would be a major upset, and not just because it would be the first time in nine presidential elections that the state went for a Republican.

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A Vote For Obama Isn’t a Vote for Gay Rights

As we know by now, five days before the election, President Obama is unable to run on his record, and has chosen not to run on a plan for the next four years. The president has instead been dependent on scare tactics–probably because he himself is quite scared. With the polling numbers coming out of swing states that were once reliably blue, like Minnesota, Pennsylvania and Michigan, he should be nervous about his looming possible unemployment. 

Only six months after Obama’s “evolution” (read: flip-flop) on gay marriage, he’s now basing a large portion of his campaign messaging on the subject. Hollywood elites have finally come in line with giving him some endorsements and have thrown fundraisers for the president, albeit not nearly as enthusiastically as they did four years ago. In the swing state of Wisconsin, a 20-something friend told me that for every ten ads she hears on her Pandora radio station, eight have been purchased by Obama’s reelection campaign. Many of these ads, she’s told me, implore her to vote for the president lest they find themselves unable to look their gay friends in the eye after election day. How could they vote against their friends’ own civil rights and liberties? Today on the Huffington Post a similar message appears,

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As we know by now, five days before the election, President Obama is unable to run on his record, and has chosen not to run on a plan for the next four years. The president has instead been dependent on scare tactics–probably because he himself is quite scared. With the polling numbers coming out of swing states that were once reliably blue, like Minnesota, Pennsylvania and Michigan, he should be nervous about his looming possible unemployment. 

Only six months after Obama’s “evolution” (read: flip-flop) on gay marriage, he’s now basing a large portion of his campaign messaging on the subject. Hollywood elites have finally come in line with giving him some endorsements and have thrown fundraisers for the president, albeit not nearly as enthusiastically as they did four years ago. In the swing state of Wisconsin, a 20-something friend told me that for every ten ads she hears on her Pandora radio station, eight have been purchased by Obama’s reelection campaign. Many of these ads, she’s told me, implore her to vote for the president lest they find themselves unable to look their gay friends in the eye after election day. How could they vote against their friends’ own civil rights and liberties? Today on the Huffington Post a similar message appears,

If I hear one more person explain how, even though they believe in gay rights, they’re voting for Romney, I’m going to lose my mind. We need to find ways to reach these people who say they love us and call us friends.

That’s a pretty heavy gauntlet. The bottom line for that writer is that a vote for Romney is a vote against your gay friends and family. But is it?

Unlike Obama, Romney has barely uttered a word about social issues, steering clear of gay marriage and abortion and instead focusing on encouraging voters to consider his economic and foreign policy plans. A vote for Romney, for many, isn’t a vote against gays, but instead a vote for providing for their families and keeping their country safe from the very serious risks posed by countries like Iran, China, and yes, even Russia. 

Like he has been for the last four years on many other issues, President Obama is a lot of talk and very little action on gay rights, aside from reversing the draconian Bush-era policy of Don’t Ask Don’t Tell… Wait. Oh, that was written and enacted by the Clinton White House? Well, it’s a good thing Obama has repudiated that bigoted former president. Except that he hasn’t, and Clinton has instead been one of Obama’s most effective surrogates, both at the DNC and on the stump. The only change in the last four years that Obama has attempted, let alone executed, for gay rights is to reverse a policy enacted by his Democratic predecessor. Back in April, before his gay marriage flip-flop, President Obama had the ability to enact an executive order to protect gay and lesbian government contractors from workplace discrimination. Instead, in the Washington Posts words, “he punted.”

And what about the next four years? What strides will Obama make for gay rights? Released just last week, the President’s plan “Forward” contains zero promises or pledges to the gay community. Despite relying heavily on gay and lesbian couples for fundraising efforts, it appears they should expect nothing in return. 

As Obama’s actions both before and after his gay marriage flip-flop have shown, his commitment to gay rights appears to be merely one of convenience. Four years ago, it was politically expedient to be against gay marriage, thus President Obama made statements to that effect. In May, after Vice President Biden blurted out his previously unmentioned support of gay marriage, President Obama found it politically necessary to either repudiate his own vice president or change his stance, and chose to do the latter. He was rewarded with a flood of donations and a boost with youth voters who were unenthusiastic about going to the polls for a president who accomplished very little of what he promised four years ago. We now know what Obama believes, but we’re again left wondering, what is he going to do about it? If the last four years and his own reelection campaign promises are any indication, very little. 

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Chicago and Boston Chose Liberalism Over First Amendment

Last week, I discussed liberal intolerance of those in opposition of their particular viewpoints, and almost on cue, Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino came onto the scene today to embody the ideals of modern-day liberalism: tolerance of only those with whom they already agree. Both mayors expressed support for same-sex marriage and not only expressed their personal opposition to Chick-fil-A’s social conservatism, but also those of their cities.

In a public letter to Chick-fil-A’s President Dan Cathy, and carbon copied to the owner of a property that it appears Chick-fil-A would occupy, Mayor Menino expressed his opposition to the chicken restaurant’s plans to locate in Boston. The strongly worded letter reads in part, “I was angry to learn on the heels of your prejudiced statements about your search for a site to locate in Boston. There is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.”

To be clear, Chick-fil-A discriminates against no one, not employees and not customers; its policies expressly forbid it. Chick-fil-A and its president have expressed their support of the traditional family and Christian values, which are not by definition anti-gay. Their charitable organization, WinShape, has donated money not only to organizations that support traditional marriage, but also to foster homes, college scholarships and international relief efforts. Chick-fil-A’s other charitable contributions are irrelevant to those who view anyone who is not with them on the quest to redefine marriage as a bigot who must be taken down at any cost.

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Last week, I discussed liberal intolerance of those in opposition of their particular viewpoints, and almost on cue, Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino came onto the scene today to embody the ideals of modern-day liberalism: tolerance of only those with whom they already agree. Both mayors expressed support for same-sex marriage and not only expressed their personal opposition to Chick-fil-A’s social conservatism, but also those of their cities.

In a public letter to Chick-fil-A’s President Dan Cathy, and carbon copied to the owner of a property that it appears Chick-fil-A would occupy, Mayor Menino expressed his opposition to the chicken restaurant’s plans to locate in Boston. The strongly worded letter reads in part, “I was angry to learn on the heels of your prejudiced statements about your search for a site to locate in Boston. There is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.”

To be clear, Chick-fil-A discriminates against no one, not employees and not customers; its policies expressly forbid it. Chick-fil-A and its president have expressed their support of the traditional family and Christian values, which are not by definition anti-gay. Their charitable organization, WinShape, has donated money not only to organizations that support traditional marriage, but also to foster homes, college scholarships and international relief efforts. Chick-fil-A’s other charitable contributions are irrelevant to those who view anyone who is not with them on the quest to redefine marriage as a bigot who must be taken down at any cost.

Not to be outdone, Chicago’s Mayor (and Barack Obama’s former chief of staff) Rahm Emanuel announced support of a Chicago alderman’s refusal to approve a building permit for Chick-fil-A in one of Chicago’s wards. The Volokh Conspiracy explains just how unconstitutional this move is:

But denying a private business permits because of such speech by its owner is a blatant First Amendment violation. Even when it comes to government contracting — where the government is choosing how to spend government money — the government generally may not discriminate based on the contractor’s speech, see Board of County Commissioners v. Umbehr (1996). It is even clearer that the government may not make decisions about how people will be allowed to use their own property based on the speaker’s past speech.

And this is so even if there is no statutory right to a particular kind of building permit (and I don’t know what the rule is under Illinois law). Even if the government may deny permits to people based on various reasons, it may not deny permits to people based on their exercise of his First Amendment rights. It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law — but Alderman Moreno, Mayor Menino, and, apparently, Mayor Emanuel (if his statement is quoted in context), seem to either not know or not care about the law.

Of course, if Chick-fil-A actually discriminated in their serving or hiring decisions in Chicago in a way forbidden by Chicago or Illinois law, they could be punished for this violation, and possibly even denied future permits based on such illegal behavior. But the stories give no evidence of any such actions, and suggest that the city officials’ statements are based on the Chick-fil-A president’s speech, not any illegal conduct on the company’s part. Finally, note that the government may generally insist that, when it hires people to communicate a government message, those people use that government money only for the government-selected speech (see Rust v. Sullivan (1991)); but that power of the government to control its own speech is far removed from the government’s attempt in this case to retaliate against businesses for their owners’ speech.

Imagine, for a moment, if Governors Rick Perry or Chris Christie banned the sale of Ben & Jerry’s from their states because of that company’s support of same-sex marriage. What if, as his first act as president, Mitt Romney banned the Muppets from government-funded PBS after the Jim Henson company expressed their opposition to Chick-fil-A? You can just hear the wails of the editorial pages of the New York Times and Washington Post, the anchors of every major news station (including Fox) crying “FASCISM!” They would be absolutely correct in their charge. Using the government’s power to restrict commerce based on a personal vendetta is a chilling next step in a culture war that has turned business owners, job creators and people of faith into public enemies.

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There’s More to the “Flip-Flopper” Label

In March 2010, Jim Geraghty published what was, to that point, “The Complete List of Obama Statement Expiration Dates.” It listed about 25 or so promises the president broke in his first year in office, plus an addendum of about 20 promises that “expired” during the campaign. In the two years since, there have been more, which Geraghty has documented as well. And the most recent of these has also become the most famous: President Obama’s self-proclaimed “evolution” on the issue of gay marriage.

Unlike his opponent, however, the media has resolutely refused to trifle the president with the appropriate label: the president is quite clearly a “flip-flopper.” Why the double standard? There is more to it than the obvious media bias.

As the Washington Post notes in an interesting article on the subject (please ignore the Post’s unforgivable headline), since John Kerry and, to a lesser extent, Al Gore, were cast as craven opportunists, it is not enough that Romney is a Republican and Obama a Democrat. But those party tags do actually factor into it, the article finds, though not simply because of the visible press bias. The article describes a new study based on an experiment testing voters’ reactions to flip-floppery, in which they are asked to react to one political type who promises to change his positions as the people do, and the other who promises to stay true to his principles:

These candidates represent a classic argument in political philosophy between the view of John Stuart Mill, the British philosopher who said that democratically elected officials should reflect constituents’ views, and that of Edmund Burke, the Irish-born political thinker who argued that we elect representatives with strong values so they will follow their principles.

Voters who preferred Candidate B — Burke’s view — responded much more negatively to candidates who changed their minds on issues, said Barker, director-designate of the Institute for Social Research at California State University at Sacramento. Those voters generally prefer conservative Republicans and are more likely to rely on religious faith to guide their political choices.

Voters who preferred Candidate A — Mill’s view — were much more accepting of candidates who flipped on issues. These voters, mostly drawn to more liberal, Democratic candidates, tend to be more secular and believe that as the people’s views shift, so should their leaders’.

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In March 2010, Jim Geraghty published what was, to that point, “The Complete List of Obama Statement Expiration Dates.” It listed about 25 or so promises the president broke in his first year in office, plus an addendum of about 20 promises that “expired” during the campaign. In the two years since, there have been more, which Geraghty has documented as well. And the most recent of these has also become the most famous: President Obama’s self-proclaimed “evolution” on the issue of gay marriage.

Unlike his opponent, however, the media has resolutely refused to trifle the president with the appropriate label: the president is quite clearly a “flip-flopper.” Why the double standard? There is more to it than the obvious media bias.

As the Washington Post notes in an interesting article on the subject (please ignore the Post’s unforgivable headline), since John Kerry and, to a lesser extent, Al Gore, were cast as craven opportunists, it is not enough that Romney is a Republican and Obama a Democrat. But those party tags do actually factor into it, the article finds, though not simply because of the visible press bias. The article describes a new study based on an experiment testing voters’ reactions to flip-floppery, in which they are asked to react to one political type who promises to change his positions as the people do, and the other who promises to stay true to his principles:

These candidates represent a classic argument in political philosophy between the view of John Stuart Mill, the British philosopher who said that democratically elected officials should reflect constituents’ views, and that of Edmund Burke, the Irish-born political thinker who argued that we elect representatives with strong values so they will follow their principles.

Voters who preferred Candidate B — Burke’s view — responded much more negatively to candidates who changed their minds on issues, said Barker, director-designate of the Institute for Social Research at California State University at Sacramento. Those voters generally prefer conservative Republicans and are more likely to rely on religious faith to guide their political choices.

Voters who preferred Candidate A — Mill’s view — were much more accepting of candidates who flipped on issues. These voters, mostly drawn to more liberal, Democratic candidates, tend to be more secular and believe that as the people’s views shift, so should their leaders’.

That conservatives were more drawn to a Burkean philosophy on governing isn’t too surprising. Far more interesting is the finding that liberals are much less likely to object to flip-flopping in the first place.

This helps explain why someone like John Kerry–a starkly unlikable figure for whom the label “flip-flopper” seemed particularly apt–could win the Democratic nomination despite all the obvious red flags of his candidacy. It also helps explain why Mitt Romney had such difficulty winning the Republican nomination even though he had a four-year head start and aside from Rick Perry, who possessed a strong record but who stumbled badly in the debates, the path seemed clear for Romney. He struggled not against other strong candidacies but the popular composite candidate known as Not Romney.

It is conservatives, therefore, who branded Romney a flip-flopper long before he had the chance to face John Kerry’s fate of being so labeled during the general election. The right, not nearly so tolerant of unprincipled politicians as the left, immediately flagged what seemed like Romney’s politics of convenience.

The other key takeaway from this is that it surely depends on which issues a candidate flip-flops. The Post article, to emphasize this, begins with Abraham Lincoln’s flip-flop on federal intervention to free slaves. But here is how the Post frames the other element in choosing the “right” issue on which to evolve:

In the end, voters are especially willing to accept a shift in politicians’ positions “if it’s an issue where the public has evolved in its own thinking,” Garin said.

With this in mind, it’s useful to look at two of the candidates’ more controversial changes. Obama’s switch on gay marriage, polls indicate, show him to be swimming with the tide. The public on the whole may not be overwhelmingly in favor of gay marriage, but the trend is toward wider acceptance. It is logical to expect those who have undergone similar “evolutions” on the policy to give the president the benefit of the doubt here.

Romney’s more controversial change, however, is on abortion. It’s true that he has embraced the pro-life position, but voters–especially those on the right–remain skeptical. As such, he may be swimming with the tide–self-identified pro-life voters are increasing, while pro-choice voters are decreasing–but conservative doubt prevents him from fully capitalizing on the switch.

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