Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
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
Professor Epstein, welcome to our world, if not our belief system.
In Colorado, marijuana laws reign supreme. The group that pushed through these laws, were satisfied for about 10 minutes. It was still against the law to smoke in public. Now that same group is circulating a petition to allow smoking in bars and other public places. Just like gay marriage, they get their foot in the door, then they knock down the door. It’s insidious.
The same-sex-marriage movement isn’t moving “sharply” at all. Finding a club to bash people who have deeply held religious convictions was the goal all along.
The Left doesn’t care about gay rights; it just hates Christians.
Thank you, Prof. Epstein. This clarity is badly needed at present. I only hope reason prevails, but somehow suspect it will wilt in the face of zealotry as to this latest received wisdom of the secular forces.
Couple things:
Why do you feel constrained to hasten to add? As you’ve made plain throughout your articles, here and elsewhere, your arguments don’t indicate that you believe one way or another; more, as you’ve also made plain, your personal beliefs aren’t relevant to the matter.
It seems to me that getting into such defensive crouches only invites further ad hominem or otherwise wholly illogical attack.
Secondly, the nature of the Slate piece–its lack of logical foundation, its disregard for the facts either of the matter generally or of the argument it claims to oppose–is not unique to a gay rights or SSM movement. This is how anyone and any group make their “case” when they cannot make it rationally, with logic or fact.
What we need to do is to stop centering our arguments on things like this; that just surrenders the initiative and control over the discussion to such as these. We need, instead, to make our case, and separately from theirs, with perhaps a concluding remark about how their position is obviated by our argument. Let them respond to us. Let them answer facts and logic as best they can. Or fail publicly.
Eric Hines
You thought you were having a nice, calm rational discussion; an exchange of ideas undergirded by a mutual respect in the societal value of such discourse.
They said SHUT UP.
Or,
Or, more accurately, Shut up, they explained.
Closely reasoned OP which will doubtless be very comforting to Aaron and Melissa Klein who have been fined $135,000 for refusing to bake a cake for a lesbian wedding, and have now been banned from talking about it.
Maybe Prof. Epstein can do some pro bono work for them.
Since the 1964 Act, Americans have become conditioned to think that anti-discrimination law applies generally, rather than only to monopolists. With that informing a good portion of the public mind, restoring the idea of live and let live, and its complement in the liberty of association will be very difficult.
Fascism, despite the Soviet propaganda triumph, is of the Left…
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.
Bravo, Professor Epstein. Please stick to your guns. I hope someday soon the Supreme Court is composed of three conservative textualists, three liberals, and three libertarians like you to balance the scales of justice.
Thank you for writing this, Mr. Epstein. I’ve always found the ‘public accommodation’ concept to be troubling, but it seems like the horse is already out of the barn on that one.
Well but the Oregon Политический Руководитель has spoken.
Eric Hines
This situation has me quite depressed. There is absolutely no allowance for conscientious objectors.
Who is Mark Joseph Stern? And on what planet does he even think he is qualified to hold Prof. Epstein’s (legal) jock? (paging EJ Hill…work some Photoshop magic on that image.)
The left has turned into everything they said they hated years ago. Anti free speech. Pro authoritarian. Utterly conformist. Straight up bullying tactics.
I still don’t see why supporting redefined marriage is really a libertarian position. Professor Epstein says in his argument that limiting marriage to heterosexual couples is an understandable position because that is the way new citizens in the form of children, the only real reason the state has an interest in marriage, are brought into the world. The law always discriminates and has to–which is why blind people cannot drive but can vote. So why is it discriminatory to limit marriage to heterosexuals in the libertarian playbook? This is not in any way a religious reason to do so.
Did he say that?
The interests of the State are also served when married partners look after one another, becoming less burdensome to the State. Couples without children stabilize society in many ways.
Wives civilize men, who would otherwise roam the land behaving in an even more disorderly fashion.
And the presence of a husband can … wait, I’ll come up with something … save women a fortune in cat food purchases!
Mark Joseph Stern criticizing Richard Epstein is like that moronic college student giving comedy lessons to Jerry Seinfeld in the Huffington Post. It would be funny if it weren’t so sad.
He articulates the position in this way:
He has made clear that it isn’t his position, though he understands the argument. He has included the Bible in this passage, but you wouldn’t need to. You can make the argument this way: marriage is the way that families are perpetuated across the generations, a definition that includes both those who have children and those who don’t as part of the family chain as aunts, uncles, cousins, nieces, nephews, children and grandchildren, and so on. So marriage basically has two levels, the private one that, to the couple especially, is about love and a personal relationship, and the larger purpose, which is about creating not just nuclear families but extended families.
The problem with bringing gay couples into this is that they are not infertile as a couple by choice, accident, or age, they are infertile by nature. Now, if all gay couples adopted, as some do, that wouldn’t necessarily upset the apple cart because children are brought into families by adoption all the time since bad things happen that separate children from parents. But any other way gay couples obtain a child (and this is equally bad for heterosexual couples who obtain a child through third party reproduction unless they use their own genetic material) a child is purposely ripped from and denied his or her family chain. This is deeply immoral, against the higher purpose (which is also the public interest) of marriage and undermines what marriage has always told people, which is that it is your duty to love, care for and raise the children you engender.
How will this affect genealogy sites, like ancestry.com, in the future?
Much as feminists are motivated not by compassion or concern for other women, but rather by hatred and resentment of men, libertarian useful idiots who supported same-sex marriage but who are now aghast at the intolerance shouldn’t be surprised that a similar resentment and hatred has been the motivating principle behind this latest phase of “gay” “liberation” from the beginning.
The more at variance with reality, the more explicitly Captain Ahab the left becomes.
More important that the flaws in the Left’s narrative or interpretation, which are numerous…is the flaws in the “conservative” arguments. Which Richard Epstein also highlights in his piece.
I don’t see a very serious debate between “conservatives” in trying to overcome these flaws.
So I’d pay more attention to what Epstein is saying about why conservative arguments fall flat, than why the Left one’s do (or don’t, since they’re clearly winning)
The left’s arguments are winning, to the extent that they are, because of liberal elites using their power to force those arguments down the throats of the general population. Only 3 states approved of homosexual marriage by popular vote. Only 8 state legislatures voted to approve it. That’s a total of 11. There had been an additional 26 states where a court ruling compelled same-sex marriage regardless of what the state legislature or voters had said. Now a court by a 5-4 vote has forced the remaining states to adopt same-sex marriage.
That’s hardly what I would call “winning the argument.” The left are winning only in the sense that they wield the levers of power in the courts and the media.
This is not to say that same-sex marriage is a bad idea. That is a whole other discussion. But it simply is ahistorical to ignore the way in which the tide of opinion has been turned. If the courts had not been so liberal the issue would look very different today.
-you never appease those on the left…you only energize them
-they are bullies and that will be their undoing
-I hope they don’t undo us before they undo themselves.
All through history all kinds of bad ideas temporarily win. Does that mean we need to support them?
Even if you buy, for the moment, that the state has an interest in heterosexual marriage – then how does that same interest (in whatever form it takes) apply to gay marriage?
What I mean to say is that’s where the state’s interest, for me, falls apart. I’m not interested in what the state’s interests are, which seem to only be increasing the size of the debt ladled onto unborn generations and intruding into every aspect of our lives. If the state’s original interest was in pro-creation, great – but that’s none of the state’s business. The state cannot command me to procreate and generate fresh new taxpayers because it has an interest in continued funding of the National Endowment of the Arts or cowboy poetry festivals.
Either let everyone get married, in whatever form they want, or disallow it, or get the hell out of “licensing” people to live their lives. I don’t want, need, or require a dumpy schlub in Washington’s permission to do whatever it is I choose to do. It’s like the government telling me I’m allowed to go for a run after work, as long as I run the required number of miles and in a place designated by the approving authority.
Nuts to that, and them.
And this is a perfect example of bad arguments from the conservatives.
It’s not about supporting or not supporting. It’s about seeing that your arguments aren’t convincing anyone, and are actually not very good to begin with.
And that’s another really bad argument that “conservatives” always fall back on. The evil elites and their conspiracy!
Well, first of all, what does this say about “conservatives”? It says you’ve got no one on the “elite” level. That should mean something in itself.
Second, what else does it say? It says that the “elites” are making arguments which are convincing (not forcing; no one is forced to believe something) more people than the “conservatives”.
Hence, doesn’t this imply something wrong with the “conservative” argument?
If you keep making up excuses for why you always fail, you will always keep failing.
According to Gallop, 54% support gay marriage in the US. 78% for under 30s. Heck, 45% even among those over 65. (and these are numbers from prior to the latest decision. I’d assume they have only gone up since then)
That’s about as much “winning” as it gets.
I can’t agree with the conclusions you draw from this. Far fewer people who vote support gay marriage. I don’t doubt your poll numbers, and it’s likely that gay marriage will have more support as the years go by. But that doesn’t mean that the electorate is supportive of it now. They are not, as the actual voters have demonstrated, as opposed to people who answer pollsters’ questions.
Conservatives could “win” the debate over the issues and still lose the legal battle when courts overturn what the people have decided for themselves. Anthony Kennedy wasn’t swayed by the Gallop numbers, but by his own view of morality. He doesn’t give a damn what you or I think. One man, that man, could have switched his vote (as the Constitution demands) and I suppose you would be saying that the conservatives have the winning argument.
Legal arguments aren’t moral arguments. This is why “we” lose.
The poll numbers are of “likely voters”. Your argument is that in particular states, this isn’t the case. Sure. On a national level, however.