When the desperate and outraged people of a major American city have finally had enough, and when there’s the right precipitating event – one of their kids dying while in police custody, again, for just running from the police, which any sensible kid would do, given how the local police, given the impossible task of maintaining order in neighborhoods where despair is a way of life, just beat the crap out of anyone at all, and often kill them – the riots in the streets will transfix the nation. How did it come to this?
Everyone will have an opinion, and everyone will have an idea of what should be done about this. These are thugs, destroying private property, sneering at the law. Bring down the hammer – hell, call in airstrikes to take out these neighborhoods. Do what Netanyahu did, to the Palestinians to make them respect what ought to be respected. Level a few buildings. Others will say that’s absurd. It’s about time to address the desperation and despair and outrage that led to a people finally exploding in anger. Hopelessness that seems to stretch out endlessly into the future generates burn-it-all-down anger. Burn it all down. What does it matter, if there’s no future? The people in the street shout “No Justice, No Peace!” They seem to mean that as a threat. It is, but it’s also a descriptor. Life is kind of like that. The one follows the other. People can be driven too far. Don’t let it come to that.
That’s easier said than done, and while everyone was arguing about the events in Baltimore, few noticed the publication of an odd “No Peace, No Justice” manifesto. That would be the Pledge of Solidarity in Defense of Marriage drafted by Vision America’s Rick Scarborough, the Focus on the Family guy James Dobson, and Liberty University law school dean Matt Staver. This is explained at Townhall by Todd Starnes:
“We will not obey.”
That’s the blunt warning a group of prominent religious leaders is sending to the Supreme Court of the United States as they consider same-sex marriage.
“We respectfully warn the Supreme Court not to cross that line… We stand united together in defense of marriage. Make no mistake about our resolve.”
They’ve been driven too far:
“While there are many things we can endure, redefining marriage is so fundamental to the natural order and the common good that this is the line we must draw and one we cannot and will not cross,” the pledge states.
Mike Huckabee signed this. Rick Santorum signed this. So did Franklin Graham, president and CEO of the Billy Graham Evangelistic Association and Samaritan’s Purse. They pledge to break the law:
“We’re sending a warning to the Supreme Court and frankly any court that crosses the line on the issue of marriage,” Staver told me.
He said that once same-sex marriage is elevated to the level of protected status it will transform the face of society and will result in the “beginning of the end of Western Civilization.” …
Dobson said the legalization of same-sex marriage could fracture the nation.
“The institution of marriage is fundamental and it must be defended,” he told me. “It’s the foundation for the entire culture. It’s been in existence for 5,000 years. If you weaken it or if you undermine it the entire superstructure can come down. We see it as that important.”
They won’t burn down Baltimore, but there will be acts of civil disobedience:
“Yes, I’m talking about civil disobedience,” Staver said. “I’m talking about resistance and I’m talking about peaceful resistance against unjust laws and unjust rulings.”
That’s quite a shocking statement. So I asked Mr. Staver to clarify his remarks.
“I’m calling for people to not recognize the legitimacy of that ruling because it’s not grounded in the Rule of Law,” he told me. “They need to resist that ruling in every way possible. In a peaceful way – they need to resist it as much as Martin Luther King, Jr. resisted unjust laws in his time.”
So it’s the same thing, really, and Scarborough is urging pastors across the nation to sign the pledge, because fines for refusing to make a cake for a lesbian wedding and that Washington State florist, facing fines for refusing to participate in a gay wedding, have pushed them over the edge:
“Christians are being declared the lawbreakers when we are simply living by what we have always believed, and by a set of laws that the culture historically has agreed to,” he said. “Right now the courts are changing the playing field and declaring that what the natural eye can see and natural law reveals is not truth. … What will we do, and how will we respond?”
They’ll refuse to obey the law. Those gay folks are using the courts. That will change the law. Now they have no choice. Burn it down, all of it. It’s just like Baltimore, sort of.
So, two presidential contenders have signed a public pledge to break the law. That’s odd, but while Baltimore was tearing itself apart, forty miles south, this was happening:
The Supreme Court on Tuesday was deeply divided over one of the great civil rights issues of the age, same-sex marriage. But Justice Anthony M. Kennedy, whose vote is probably crucial, gave gay rights advocates reasons for optimism based on the tone and substance of his questions.
In two and a half hours of arguments over whether the Constitution guarantees same-sex couples the right to marry, Justice Kennedy sent conflicting signals. At some points, he seemed wary of moving too fast and torn about what to do. But his demeanor was more emotional and emphatic when he made the case that same-sex couples should be permitted to marry. He is also the author of three landmark opinions expanding the rights of gay Americans.
The other justices for the most part played to type…
Justice Kennedy was the issue:
He said he was concerned about changing a conception of marriage that has persisted for thousands of years based on little more than a decade of experience with same-sex marriage in the United States. … Later, though, he expressed qualms about excluding gay couples from the institution of marriage.
“Same-sex couples say, of course: ‘We understand the nobility and the sacredness of the marriage. We know we can’t procreate but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled,'” Justice Kennedy said, strongly suggesting that the reasoning resonated with him.
But he wasn’t the only story:
The day’s arguments, over same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, were divided into two segments. At the start of the first, about whether states must allow same-sex marriage, Mary L. Bonauto, representing more than a dozen gay and lesbian couples, urged the justices to remove “the stain of unworthiness” that marriage bans produce.
She was met with a barrage of skeptical questions from the court’s more conservative justices, as expected. But there were several queries from Justice Kennedy that caused leaders of the gay rights movement who were in the courtroom to squirm.
He asked, for instance, whether “there has not been really time” for “the federal system to engage in this debate.”
Justice Antonin Scalia echoed Justice Kennedy’s language in emphasizing how new same-sex marriage is. “Do you know of any society prior to the Netherlands in 2001 that permitted same-sex marriage?” he asked Ms. Bonauto. She said no, at least as a legal matter.
Chief Justice John G. Roberts Jr. suggested that Ms. Bonauto was asking the court to do something radical.
“You’re not seeking to join the institution,” he said. “You’re seeking to change what the institution is.”
Well, yes, and then the chief justice then brought up something else:
“One of the things that’s truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society,” he said.
Justice Scalia agreed. “The issue, of course, is not whether there should be same-sex marriage, but who should decide the point.” The right answer, he said, was the people or their elected representatives, not the courts.
On this point, Justice Stephen G. Breyer, a member of the court’s liberal wing, had his own reservations.
“Suddenly you want nine people outside the ballot box to require states that don’t want to do it to change what marriage is to include gay people,” he said. “Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?” Later in the argument, though, Justice Breyer indicated support for same-sex marriage as part of basic liberty. “Marriage is about as basic a right as there is,” he said.
The other side’s argument, he said, was that “people have always done it” in a certain fashion.
“You know,” he said, “you could have answered that one the same way we talk about racial segregation.”
The law, then, will change, unless we fight another civil war about those black folks too, but there was this:
The proceedings were calm but for a brief interruption by a protester. “You can burn in hell,” he yelled from the rear of the courtroom. “It’s an abomination of God.”
Courtroom security officers promptly dragged him from the room. Justice Scalia did not seem bothered by the disturbance. “Rather refreshing, actually,” he said.
Jeffery Toobin had a few things to say about that:
It may have been just a joke from the senior Associate Justice on the Court, but what kind of joke – or was it really a joke at all? Scalia probably did think that the directness of the protester was bracing – “refreshing.” Indeed, there’s every reason to believe that Scalia more or less shared the protester’s view of the immorality of homosexuality, and that he regards the Court’s toleration of gay people as one of the great disasters of his nearly three decades as a Justice.
But he may stand alone:
Scalia’s counter-outburst was a notable contrast to the respectful tone of the rest of the argument, including from his fellow-conservatives. It is one measure of the success of the gay-rights movement that all the other Justices felt compelled to phrase their questions in ways that honored the humanity of gay people. Justice Anthony Kennedy gave voice to an issue of real concern when he mused, toward the beginning of the argument, about just how quickly the country was changing, and about the part the Supreme Court should play. “One of the problems is, when you think about these cases and the word that keeps coming back to me, in this case, is ‘millennia.'” By that, Kennedy meant that the definition of marriage as the union of one man and one woman has been around for thousands of years. “This definition has been with us for millennia. And it’s very difficult for the Court to say, ‘Oh, well, we know better.'”
It should be difficult for unelected, unaccountable judges to remove a major issue like marriage from the will of the democratically elected branches of government. No judge should take such a step lightly.
And then there’s Scalia:
In questioning Bonauto, Scalia further established his reputation as the Fox News Justice, who appears to use conservative talking points to prepare for oral arguments. Clearly drawing on a reservoir of outrage about the revision of an Indiana law that would have effectively allowed businesses to refuse to do business with same-sex couples, Scalia tried to pick an example that would motivate his ideological supporters, if not his colleagues. “Is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if, indeed, this Court holds that they have a constitutional right to marry?” he asked Bonauto. “Is it conceivable that that would be allowed?” Bonauto and Justice Elena Kagan shut down this silly idea with dispatch. Under the First Amendment’s free-exercise-of-religion clause, it’s long been clear that ministers can perform weddings (or refuse to perform them) for anyone they want.
Scalia, however, wasn’t the whole story:
Fortunately for the plaintiffs, Solicitor General Donald Verrilli, who was speaking for the Obama Administration, gave a superb argument in support of marriage equality in the mere fifteen minutes allotted to him. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples. It did demeans their children, and it denies both the couples and their children the stabilizing structure that marriage affords.” (“Dignity” is Kennedy’s favorite word, and it’s funny to listen to lawyers pander to him by throwing it in at every opportunity.)
Justice Elena Kagan battered John Bursch, the lawyer for Michigan, with various versions of the same question: What governmental interest was the state serving by excluding gays from the institution of marriage? Bursch’s answer: children. As Bursch put it, “It has to do with the societal understanding of what marriage means. This is a much bigger idea than any particular couple, and what a marriage might mean to them or to their children. And when you change the definition of marriage, to delink the idea that we’re binding children with their biological mom and dad, that has consequences.” Bursch could never really say what those consequences were, nor could he explain why heterosexual-only marriage had to be preserved for the sake of the children when lots of straight people don’t have kids and lots of gay and lesbian people do.
It looks like Huckabee and Santorum will have to break the law:
The most likely outcome still looks like a victory for the plaintiffs and marriage equality in all fifty states. At a minimum, even before the decision is announced, the argument itself was an example of how much the country, and the Court, has changed on the subject of gay rights. On this issue at least, it’s not Scalia’s Court anymore.
And there was this:
Justice Kagan indicated that she hoped the Supreme Court would find a right to same-sex marriage. She said the court has a role in protecting minorities even when majorities made their views known at the polls.
“We don’t live in a pure democracy,” she said. “We live in a constitutional democracy.”
Scott Lemieux addresses that:
John J. Bursch, the lawyer charged with defending the bans, began with the rather strange argument that there was a “fundamental liberty interest” for individuals in giving their states the right to define the institution of marriage. Justice Antonin Scalia, the arch-conservative who is adamantly opposed to same-sex marriage and enjoys making homophobic jokes in court, attempted to state the point in a somewhat more defensible form, drawing a distinction between judicial decisions and popular self-government. When state courts rule same-sex marriage bans unconstitutional, Scalia asserted, “That’s not the people deciding it. It’s judges deciding it.” At other times, Scalia described the argument of the states as “leave it to the people.”
The point has a certain superficial appeal. Given how deeply entrenched the traditional definition of marriage had been – a point the conservative justices returned to again and again, citing millennia of human history – doesn’t it make sense for the change in definition to come from the people themselves, rather than having unelected judges make it?
The appeal of the argument is just that: superficial. It either begs the question or advances a conception of judicial review that no justice of the Supreme Court actually shares.
Making a distinction between “the people” (as represented by legislators) and “judges” is misleading. In the American system of government, legislative enactments, state initiatives, and constitutional amendments are subject to judicial review. The only question is whether judicial review is appropriate in a particular case.
Lemieux argues it is in this case, and arguing otherwise is kind of dumb:
Admittedly, there are a few states where a Supreme Court decision striking down bans on same-sex marriage would be unpopular. But these are also jurisdictions where, absent judicial intervention, ending marriage discrimination would probably take decades. Making gays and lesbians wait that long for their fundamental rights to be recognized in order to prove an almost certainly erroneous point about democratic procedures is not very attractive.
The argument that a judicial opinion striking down same-sex marriage bans is inconsistent with democratic values is not very convincing. And yet, when you consider the other arguments advanced by gay marriage opponents in amicus briefs – an unhealthy stew of illogic, bad science, double standards, and unfounded speculation – it’s the best line of argument they have.
It’s an argument that is overwhelmingly likely to lose, and richly deserves to.
Huckabee doesn’t get it. Santorum doesn’t get it. They both signed that “pledge” to break the law, but Politico reports that they stand alone:
Days before the Supreme Court heard oral arguments Tuesday in a case that could make gay marriage the law of the land, a number of Republican presidential candidates spent the weekend in Iowa, assuring social conservatives that they won’t ever give up the fight.
There’s just one thing: it’s getting harder to believe them.
Sure, they all continue to publicly support “traditional marriage” and some will eagerly throw red meat to their audiences about the assault on religious freedom but, for all but a few candidates, their personal commitment to that position, long a pillar of conservative orthodoxy, is less and less convincing.
Scott Walker told reporters he’s attended the reception for a gay couple after missing the wedding ceremony itself. Marco Rubio said he would go to a gay wedding “in a heartbeat” but believes marriage itself should remain between a man and a woman. Jeb Bush said on Tuesday he’s never been to a gay wedding but that “of course” he’d attend one “if invited.”
There will be no riots in the streets:
Like Bill Clinton explaining in 1992 that he once smoked marijuana but “didn’t inhale,” Republicans are struggling with one of 2015’s first cultural litmus tests, not wanting to offend social conservatives, a dominant force especially in Iowa and South Carolina, or to upset the GOP’s donor class that’s increasingly pushing candidates to better align their position with the nation’s broader, rapidly changing electorate.
“That awkwardness you’re seeing comes from the collision of conviction and calculation,” said John Weaver, a Republican strategist who advised John McCain’s presidential campaigns. “We’re seeing that all of these candidates are uncomfortable when they have to answer what seems like an easy question.”
Look no further than Ted Cruz, who last week told gay donors who hosted a fundraiser for his campaign that he’d love his daughter “just as much” if she were a lesbian; as soon as that statement leaked, he slammed the media for making too much of it and went right back to railing against the cultural forces threatening traditional marriage, asking his audience in Iowa to pray about the Supreme Court case at hand.
And then there’s Jeb Bush:
Beyond communications director Tim Miller, who is gay, Bush’s inner circle of staffers have all expressed strong support for marriage equality, including Mike Murphy, hired to run his messaging shop, who wrote about the GOP’s need to evolve on policy following Romney’s defeat in 2012.
“The Republican challenge is not about better voter-turnout software; it is about policy,” Murphy wrote after the 2012 election. “We repel younger voters, who are much more secular than their parents, with our opposition to same-sex marriage and our scolding tone on social issues.”
Bush’s spokeswoman has already disavowed a statement he made as Florida’s governor opposing special designations and protections for a class of people who engage in what he then termed “sodomy.”
Something is up:
Cruz, who vows to fight on if the Supreme Court rules in favor of marriage equality in June, has moderated his stance, shifting from advocating a constitutional amendment defining marriage as between a man and a woman to one that merely leaves the question to the states.
“Aside from [Mike] Huckabee, [Rick] Santorum, and maybe [Bobby] Jindal, none of the candidates really care about this issue anymore and want it to go away as quickly as possible,” said a Republican staffer inside a major LGBT-advocacy organization who asked not to be identified. “They’ve seen the polling numbers and realize that this one is a lost cause.”
Recent polls show 59 percent of Americans support full marriage equality, including 52 percent of Republicans under 50.
Yeah, well, there is that. When the Supreme Court legalizes gay marriage, if they do, Republicans will move on. Huckabee and Santorum will move on too. Some battles aren’t worth fighting. And then there’s Baltimore.