Slate’s Rising Intolerance on Gay Rights

 

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.

Published in Law, Marriage, Religion & Philosophy
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  1. user_517406 Inactive
    user_517406
    @MerinaSmith

    AIG–have the poll numbers on abortion remained the same or changed over the years?  In what direction?

    • #31
  2. Jim Kearney Contributor
    Jim Kearney
    @JimKearney

    Merina Smith:AIG–have the poll numbers on abortion remained the same or changed over the years? In what direction?

    http://www.pollingreport.com/abortion.htm

    • #32
  3. user_517406 Inactive
    user_517406
    @MerinaSmith

    Jim, the point is that they don’t only go the direction you say they will go, even if they go up and down over time.  If you have a moral stance on abortion or marriage, you can’t change it just because of poll numbers or you have no moral stance.  We are playing the long game here, which means that even if the wrong side wins for awhile, eventually biological reality will assert itself or our culture dies.  It may die, but I’m not going to be on the side that bets on killing babies and deliberately depriving children of their parents even if it does mean losing elections.  We have to fight for the truth as we see it.  I get it. You think our moral stance is foolish.  Truthfully, that  doesn’t matter much to me.  Sure, I want to win elections, but the way I see it, not at the cost of my soul.

    • #33
  4. Jim Kearney Contributor
    Jim Kearney
    @JimKearney

    Merina Smith:I get it. You think our moral stance is foolish.

    No, Merina. I just provided — without comment — a comprehensive collection of long term polling data in response to your request.

    I don’t think your moral stance is foolish. I respectfully disagree with it.

    Foolish are the (sizable % of) people who don’t even know what Roe was about. It’s difficult to respect low information voters. Don’t know how they feel about abortion rights, but now that so many do vote I just hope they’ll realize they can vote Republican no matter how they feel about abortion rights.

    • #34
  5. user_348483 Coolidge
    user_348483
    @EHerring

    If acceptance is what they seek, they will be disappointed for the chances of that is being frittered away by the bullying and Takei-ing of respectable folks.  When they extend the war to the churches, they will lose.  People will get the answer they couldn’t provide before as to how who others marry affects them.

    • #35
  6. AIG Inactive
    AIG
    @AIG

    Merina Smith: Jim, the point is that they don’t only go the direction you say they will go, even if they go up and down over time.  If you have a moral stance on abortion or marriage, you can’t change it just because of poll numbers or you have no moral stance.

    Again, this isn’t about agreeing, disagreeing, or changing your mind. Nowhere did I say that the “conservative” position was wrong, or right. I could care less about these issues, as a matter of fact.

    This is a about not recognizing that the argument put forth by “conservatives” is just as “weak” as the other side.

    This is about recognizing that if you don’t come up with some better arguments, you’re going to keep loosing. People ain’t buying what you’re selling, even if you think what you’re selling is the greatest thing since sliced cheese.

    Blame “the evil elites” all you want. That’s a looser’s argument.

    • #36
  7. user_517406 Inactive
    user_517406
    @MerinaSmith

    Oh please, AIG. Some people buy what we are selling and some don’t. Most of them haven’t thought about many of these issues at all, mostly because the media does all it can to not let people hear the other side.  My daughter was talking to two knee-jerk liberal friends after the marriage decision and telling them some very basic stuff, and they were saying, “Really?  I didn’t know that!  Maybe I need to rethink this!”  And they are young professionals living in DC.

    Buy anyway, what is your message?  Take the position that wins the votes no matter what you believe?  All kinds of stupid stuff has come and gone in history.  I’m going to put my money on the thousands of years of history instead of the last 10, the Kennedy’s of the world notwithstanding.

    • #37
  8. user_517406 Inactive
    user_517406
    @MerinaSmith

    Jim Kearney:

    Merina Smith:I get it. You think our moral stance is foolish.

    No, Merina. I just provided — without comment — a comprehensive collection of long term polling data in response to your request.

    I don’t think your moral stance is foolish. I respectfully disagree with it.

    Foolish are the (sizable % of) people who don’t even know what Roe was about. It’s difficult to respect low information voters. Don’t know how they feel about abortion rights, but now that so many do vote I just hope they’ll realize they can vote Republican no matter how they feel about abortion rights.

    Thanks Jim. I respectfully disagree with yours too.  I hope people will vote for Republicans too!

    • #38
  9. AIG Inactive
    AIG
    @AIG

    Merina Smith:Buy anyway, what is your message? Take the position that wins the votes no matter what you believe?

    Have I not said that it isn’t so, about 3 times in a row already?

    Merina Smith: Oh please, AIG. Some people buy what we are selling and some don’t. Most of them haven’t thought about many of these issues at all, mostly because the media does all it can to not let people hear the other side.

    This is a looser’s argument. “The media”, “the elites” etc etc. The whole world is conspiring against us.

    If you ain’t in “the media” and in the “elites”, then you’ve already lost.

    • #39
  10. user_517406 Inactive
    user_517406
    @MerinaSmith

    AIG–It’s loser.  Looser is what you need when your pants are too tight.

    You have to finesse the argument.  It’s time not to abandon our principles, but to make a big deal about leftist overreach, which is a very easy thing to do these days.  Let’s trumpet from the rooftops the story about the family in Oregon that has been fined $130,000. for not baking a cake, lost their business and been issued a gag order from a judge,  denying them free speech. There are lots of cases like this and Americans don’t like it.  Let’s get the African-American pastorate on our side and speaking out about marriage.  There’s more than one way to skin a cat.

    • #40
  11. AIG Inactive
    AIG
    @AIG

    Merina Smith: AIG–It’s loser.  Looser is what you need when your pants are too tight.

    I don’t speak English.

    Merina Smith: but to make a big deal about leftist overreach, which is a very easy thing to do these days.

    Yeah, what everyone left of Rick Santorum wants to hear these days is more “conservative” wailing about leftist overreach. People love that stuff.

    Merina Smith: There’s more than one way to skin a cat.

    The way you proposed is the same way you already tried, and failed.

    George Will gets it stop on here:  http://www.washingtonpost.com/opinions/what-is-the-supreme-courts-duty/2015/07/01/c78a5a2e-1f51-11e5-aeb9-a411a84c9d55_story.html

    • #41
  12. user_517406 Inactive
    user_517406
    @MerinaSmith

    AIG:

    Merina Smith: AIG–It’s loser. Looser is what you need when your pants are too tight.

    I don’t speak English.

    Merina Smith: but to make a big deal about leftist overreach, which is a very easy thing to do these days.

    Yeah, what everyone left of Rick Santorum wants to hear these days is more “conservative” wailing about leftist overreach. People love that stuff.

    Merina Smith: There’s more than one way to skin a cat.

    The way you proposed is the same way you already tried, and failed.

    George Will gets it stop on here: http://www.washingtonpost.com/opinions/what-is-the-supreme-courts-duty/2015/07/01/c78a5a2e-1f51-11e5-aeb9-a411a84c9d55_story.html

    They don’t trust the media and many don’t know the extent of the overreach, as my daughter has learned among her lefty friends.  They don’t love that stuff, it makes them angry as heck.  George will doesn’t care about social issues.  I don’t think that is very wise of him, but he is blind in this area.

    What language do you speak?

    • #42
  13. AIG Inactive
    AIG
    @AIG

    Merina Smith: They don’t trust the media and many don’t know the extent of the overreach, as my daughter has learned among her lefty friends.  They don’t love that stuff, it makes them angry as heck.  George will doesn’t care about social issues.  I don’t think that is very wise of him, but he is blind in this area.

    If you think you can change their minds, go for it. But evidence seems to point to the contrary.

    At some point, empirical observation has to play a role.

    Agree or disagree with George Will’s stance on the issue, he’s got a very good point why the reaction by some GOP candidates is “unhinged”. I’d say it’s also the opposite of what “conservatism” actually means (perhaps not in its social-conservative meaning, but that too implies something).

    • #43
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