In my recent Defining Ideas column, “Hard Questions on Same-Sex Marriage,” I sought to explore some of the intellectual cross-currents and difficulties in the Supreme Court’s opinion in Obergefell v. Hodges. There were two basic points in the article. First, I sought to explain the difficulties in finding a constitutional right to gay marriage, even though most of the standard arguments against same-sex-marriage tend to fall flat as a matter of social and political theory. The article was in no sense an effort to rally religious conservatives to stop the powerful political juggernaut that has resulted in a surge in public approval for same-sex-marriage.
The second point was my deep uneasiness that the same-sex-marriage movement is moving sharply from its defense of gay unions towards a massive intolerance of those individuals who, for religious reasons, oppose the practice and wish to conduct their own personal lives and business activities in accordance with their own beliefs — beliefs that I hasten to add are not my own. The recent hysterical screed against my column by Slate’s Mark Joseph Stern, laden as it is with abusive epithets, shows just how rapidly that form of intolerance is taking over the gay rights movement more generally.
It is a sign of a sloppy author that he takes isolated words out of context in an effort to discredit his opponent. So here is what Stern writes:
Epstein begins by disputing the legitimacy of Obergefell, claiming that same-sex relationships “undercut” the “social imperative” to have children. He states that “historically,” government prohibition of same-sex conduct has “found a constitutional home.” These allegedly “ancient roots” of anti-gay sodomy bans, Epstein says, form the basis of Bowers v. Hardwick—“whose historical accuracy remains unquestioned.”
His distortions begin with the second word: “begins.” In fact, I began the article with the explanation given above, explaining why the moral campaign against same-sex-marriage has fallen flat. I chose to begin in that fashion precisely to dispel the view that I have taken either a religious or socially conservative opposition to same-sex marriage. In fact I did neither. I am a libertarian, not a social conservative, a distinction that Stern does not seem to grasp.
But it gets worse. Stern clips three words to create the following sentence: “’undercut’ the ‘social imperative’ to have children.” But the full passage tells a different story:
Nonetheless, this response [we allow marriages to couples that will not or cannot have children] underestimates the role of procreation in defining marriage. Historically, procreation was widely regarded as the essential purpose of marriage. Indeed, the words in Genesis 1:28, “be fruitful and multiply and fill the earth and subdue it,” read as much like a command as a blessing. Within this framework, same-sex relationships are different: They can never add offspring to society, but they can reduce them by taking both men and women out of the reproductive market, and thus undercut that social imperative. The preservation of society through reproduction is strongly tied to traditional marriage, but not to same-sex marriage. So why condemn the traditional view as arbitrary when it tends to advance a desirable societal end?
The point here was to explain the traditional connections, and to use that as an explanation to say that the fundamental issue of procreation is a point of distinction between traditional and gay marriages. It is also worth adding that nothing in Loving v. Virginia upsets that balance. Removing the restriction on interracial marriages did nothing to upset the traditional definition of marriage as a relationship between one man and one woman; nor did it raise any novel questions on the procreation issue.
Stern then goes on to say that I am wrong to point to Bowers v. Hardwick for its examination of the morals head of the police power, which was used to invalidate all forms of sodomy and, of course, polygamy. He then insists that the “famed historian’s brief in Lawrence v. Texas” (the case that decriminalized all forms of sodomy) debunked everything that I had to say. But the brief does nothing of the sort.
What it does do is trace the evolution of the ban of various forms of sodomy in order to show that many of the explicit bans on homosexual behavior were of relatively recent origin. But at no point does it give a single instance where any such ban was struck down on constitutional grounds before Lawrence, which was the only point that I wished to establish.
To be sure, Justice Kennedy relied on that brief to support his general view that “The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.” But at no point does he show any earlier case in which such bans, for whatever reason, were struck down on either equal protection or due process grounds.
Justice Kennedy then made the further (true) observation that the movement to legislatively repeal these statutes had gained steam since the 1950s. Kennedy wrote: “The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.” Well and good. But that point could be read to acknowledge that the question of sodomy was always a legislative question, not that it was protected by some sweeping claim of liberty that has an uncertain constitutional stature.
The historical compilation of the various laws on this subject was indeed unquestioned. And note that, to the extent that the Texas statute involved an equal protection challenge to a same-sex sodomy law, it did not block the institution of a universal prohibition that covers any two individuals. It was only when it was recast as a liberty claim that it hit all forms of sodomy. We may not like the state of play as it existed before Lawrence, but that itself is no justification for the falsification of the historical record on this problem.
The same can be said of another strand in Lawrence, which talks about the inability of the state to intrude into private sanctuaries in which various sexual actions take place. Here again, the point is correct, but it is still a leap from the decriminalization of activities to the state recognition through marriage. Justice Kennedy, at least in the 2003 version, understood that point by confining his actions to decriminalization. In my view, it is hard to insist that activities cannot be criminalized but are nonetheless subject to various kinds of disability. The argument here is that, when the state exercises its monopoly power, it is not defensible in principle for it to confer its favors on one group but not on another, a position that I took explicitly in 2004 in writing about the “covert libertarianism” of the United States Supreme Court in Lawrence:
Here, it seems to me that Scalia’s prediction that same-sex marriage will become a constitutional right should be correct, politics apart, if Lawrence is rightly decided. The crux of the problem is that the state has the monopoly power over whether individuals are entitled to marry. That monopoly power is something that cannot be exercised (or not so) at the whim of the state. Rather, the doctrine of unconstitutional conditions attaches, such that it becomes imperative for the state to decide why one set of unions receives sanctification from the state when another does not. Stated otherwise, the equal protection component of the analysis makes it hard to see why the marriage license should be denied to a set of applicants when it is granted to another. If it be objected that this rationale allows for polygamy or even marriages of sorts in which three men marry four women, then so be it. The harm that others have from disliking the institution is no warrant for stopping its application to all persons who want the privileges of some particular estate so long as it is granted to others.
The point remains correct today. Either the morals head of the police power requires both results or it requires neither. Obergefell just closed the circle.
This also goes directly to the second set of points that are raised by Stern, who attacks me for dealing wrongly with Martinez v. Christian Legal Society, a terrible decision on a case in which Hastings Law School denied the Christian Legal Society some benefits that were given to other organizations because of its stance on homosexuality.
Stern insists that I misstated the ruling in the case because it held that on-campus organizations had to open their doors to all persons in order to receive school funding. But that is exactly what I said: CLS was denied “full benefits,” not all benefits. But the key point is: why allow the denial of even some benefits? Should we really have wanted the state forcing the NAACP to admit Klan members into its ranks in the late 1950s when, in 1958, the Supreme Court, in NAACP v. Alabama, rightly protected the NAACP’s membership rolls from disclosure to the state Attorney General?
The standard imposed upon any organization that receives state funds, raised by taxes imposed by force on all persons, is the same as that imposed on any monopolist: It cannot use its powers to impose restrictions on parties that it could not impose by direct regulation. The state here could not tell the Christian Legal Society not to conduct its services. The decision to “decline funding” is in fact a form of discrimination by telling them that they had to forego some school benefits unless they opened their membership to all students, including those who held beliefs antithetical to theirs. Could one imagine that this form of discrimination would go uncorrected under Title VII of the Civil Rights Act (dealing with employment) if done against some protected group? The correct rule, as I have argued at length elsewhere, is that all religious organizations should be entitled to the free exercise of their faith, even within the confines of Hastings.
It is quite clear that the doctrine of unconstitutional conditions does not apply only to cases of total exclusion, but also to the imposition of other additional burdens, which is what is happening here. It is also the case that the danger lurks in decisions like Bob Jones University, where the decision was made to remove the tax-exempt status of organizations that banned interracial dating, even though the university did not exclude any students from enrollment. Once it is conceded that the free exercise of religion constitutionally allows Bob Jones to prescribe its dating policies, the differential tax on it should be regarded as an unconstitutional condition that forces it to choose between tax benefits and its religious beliefs.
It is incorrect to say that allowing them to conduct their business as they see fit requires others to “subsidize” discrimination. It is not as though Bob Jones’s students and supporters do not contribute to general tax revenues as well. What is intolerable is that they should be required to subsidize other organizations who do not have a reciprocal duty to them. The key point here is that the state can choose to subsidize both or subsidize neither. It cannot pick and choose between them.
For his final point, Stern claims that I have badly misfired because “the LGBTQ community’s request for freedom from discrimination has been rebranded by the right as anti-Christian persecution.” In this passage, he does not respect the line between competitive and monopoly industries. He also ignores the free exercise claim and any ordinary claim of freedom of association, which today receive all too little constitutional protection.
Instead, he wrongly personalizes the point instead of seeing it as a general claim that is intended to protect all groups, including LGBTQ groups, from state coercion. As a general matter, I think that all anti-discrimination laws in private competitive markets are a mistake, and that their operation, like that of the doctrine of unconstitutional conditions, should be confined against those institutions (e.g., the state, public utilities and common carriers) that exercise monopoly power over some portion of the market. It is to my mind inexcusable that any person, for any reason, should ever be forced to provide against his or her will services to other individuals when those services are freely available elsewhere in a competitive market. It would be wrong for a Christian organization to insist that gay or lesbian individuals provide them with services, just as it is wrong the other way around.
Note that with the ACLU’s current flip-flop on The Religious Freedom Restoration Act, we now face precisely that risk. Those who refuse to supply services that others can get elsewhere are now branded as criminals for “imposing their will” on others. But the real imposition runs in the opposite direction.
It is not acceptable for any group, for any reason, to say to another person or firm “either you serve me or you go out of business.” The whole point here is that the competitive market gives any customer a wide range of alternatives. The command to either comply or go out of business is far more draconian, and shows a gross disrespect and intolerance for the dignity and autonomy of those whose beliefs are different from your own. We will become a truly intolerant society if any group can bring other groups to heel by using state power in this fashion.
My position is deeply libertarian, for I fiercely oppose any efforts of a religious majority to impose its beliefs on those who disagree with it, just as I resist the same impositions when they place people of faith in the crosshairs. Live-and-let-live is the only solution for individuals who have fundamentally different worldviews. The rising intolerance of intellectual know-nothings like Stern shows how easy it is to create an oppressive climate of opinion. His ugly form of self-righteous intolerance should be rejected by everyone of good faith of all political persuasions.