I’m having some trouble with Judge Feldman’s decision upholding Louisiana’s ban on marriage equality. I’m not a lawyer, though, so perhaps others can correct me.
For instance, in explaining why heightened scrutiny applied in the Loving case but not here, Feldman writes:
Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.
But here’s the first section of that amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It does not “expressly” mention race. Nor does the rest of the amendment.
Feldman then dismisses the argument that the ban discriminates based on gender:
Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders–whether between two men or two women.
He seems to be saying that because the law applies to both genders equally, it does not discriminate based on gender. The odd thing, though, is that in Loving, defenders of the interracial marriage ban tried the same tactic, saying that the ban did not discriminate because it applied to all races — but the Supreme Court expressly rejected that reasoning:
…we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the “integrity” of all races.
So you can’t use Loving to say it’s okay to discriminate “even-handedly.” (It’s striking that Feldman and the Supreme Court both used that phrase.) Further, it’s reasonable to think a gender-based classification of people and their rights would also be repugnant to the Fourteenth Amendment. (And remember, Feldman is addressing gender discrimination in this bit, not orientation-based discrimination.)
Now that Feldman has used this flawed (to my mind) reasoning to justify rational-basis scrutiny of Louisiana’s ban (the easiest level of scrutiny for a law to pass), he looks for that rational basis and finds it in this:
Defendants rejoin that the laws serve a central state interest of linking children to an intact family formed by their biological parents. Of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus. This Court agrees.
Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents. Louisiana’s regime pays respect to the democratic process; to vigorous debate. To predictable controversy, of course.
A couple problems here. First, about that societal interest in ensuring that fundamental social change be cultivated via the ballot or legislature instead of the courts: this is an invitation never to find any law unconstitutional, no matter how great an affront to the Constitution it may be. Feldman hedges his way out of this with the qualifier, “in this case.” But why, in this case? He never explains. The closest he comes is in his comments about linking children to their biological parents. But this is inadequate. Such a policy goal explains why the state permits biological parents to marry. It explains not at all why other marriages should be banned. This is a huge hole in Feldman’s reasoning, and I suspect there really is nothing that could fill it.
There’s quite a bit more in the decision, but this seems to be the core of it. Feldman settles on rational-basis scrutiny by using flawed reasoning and flat-out mistakes about what the Fourteenth Amendment says, and then fails in his attempt to find that rational basis. To my untrained eye, this decision looks easy to challenge on appeal. Any lawyers out there care to comment?
Maybe it’s just because I’m on Vicodin (details below, not for the squeamish), but it’s delicious to listen to the 7th Circuit judges ask Indiana’s attorney general why he wants the adopted children of same-sex couples to be worse off than the adopted children of opposite-sex couples.
Actually, deliciousness is in effect during the whole grilling (and by grilling, I mean holding the AG’s arguments so close to the flame they end up with burn marks!). It comes both from hearing the AG stumble over his words, and also the constant incredulity in the voices of the judges. The brutality starts almost immediately. One of my is when a judge asks the AG for evidence to support a silly argument. The AG says it’s “self-evident” and the judge replies:
Self-ev — I regard it as absurd. You say it’s self-evident. [laughter in the courtroom]
Definitely worth a listen.
About the Vicodin: I had emergency (in-patient) surgery yesterday to fix a retinal detachment. First the doctor plunged a cryogenic probe into my eyeball to freeze the retina back in position by creating scar tissue. Then he pushed a syringe into my eye to inject a gas bubble that applies pressure to hold the retina in place and force out unwanted fluid.
Hence the Vicodin.
I posted this on Facebook the other day, and the reaction was pretty strong, so I figured I’d share it here.
I’m such a white guy, an all-American-looking white guy whom old ladies trust on sight. No cop has ever pulled me over for random questioning on the street. No customs agent has ever asked me to open my bag. I know when a traffic cop pulls me over I can feign helpless incompetence and stand a good shot at nothing harsher than a fix-it ticket. In fact, I once showed up in court because I had a “failure to appear” and I told the judge in my middle-American, educated accent that I simply hadn’t understood what I was supposed to do, and he rolled his eyes and sent me home with no penalty, leaving him free to deal with the people in the room who were not white.
This is privilege. It’s nothing I’ve earned. It’s not even something I can counteract. But I can recognize that some unarmed people are shot in cold blood just because they don’t share my privilege. And I can believe what they tell me about their experience and their lives.
About 120 comments later, after a bunch of arguments about privilege, I got what was intended to be praise from someone dear to me. He wrote:
I may not be able to articulate my thoughts as well as others on this post, but I thought I would chime in.
I would like to make a comparison with my soon to be brother in law and the shooting incident.
Lead by example. This is what I mean.
I admire Rob for being a strong advocate to the gay and lesbian community. He makes posts to start a discussion on gay and lesbian rights. These discussions begin to shed a light on how the community feels and are being treated. What he would like to see change. In a peaceful way.
When the proposition for gay marriage didn’t pass the community didn’t riot and loot. They didn’t hold cities hostage. They put on more parades . They stepped up there presence in the community. As the society began to feel less threatened more people began to open their hearts and minds.
What’s happening in Missouri is not helping the cause for racism. It’s closing off the minds of society and creating more stereotypes. Rosa Parks did more for equality by sitting on a bus then the rioters.
Racism stems for hate of ones self. If you don’t love and accept who you are you tend to lash out at others to make yourself feel better. Love yourself and you will have learned to love others.
Lead by example and others will look up and admire you. Like my brother in law Rob
It’s true that I’m a peace-maker and consensus-seeker at heart (blame it on being the youngest child in family where my older siblings fought hard with my dad), but I had to tell him this, in a series of wine-assisted comments:
I have to take issue with what you’re saying and offer a different perspective. Yes, it’s true that after Prop 8 Will and I and others organized a peaceful candle-lit march in protest, with great coverage from all four local networks, and that was great.
But before that, we participated in shutting down [the intersection at] hollywood and highland. We (and all the protesters) were polite to the police (a recurring theme through all the Prop 8 protests was the repeated thank yous called to police) but Will and I have fantastic memories of that civil disobedience.
But go back earlier and you have Dan White, who killed both the straight mayor of San Francisco and a gay city supervisor. Because he killed a fag, he had legal defense funds set up in his name and he ultimately was acquitted. The gays rioted — and why not! Once your society has announced your life has no value, then what do you have to gain from maintaining that civil order?
I think the same thing is happening in Ferguson. No, it’s not a strategically good move — or maybe it is, if it wakes people up. Personally, I’m not likely to go around setting cars on fire in any circumstance, but if you cast a group out of society, as has happened in my lifetime to both gays and blacks, you shouldn’t be surprised when they react with no regard for the laws of that society.
Drops mic. (and then sneaks off stage when no one claps).
[Correction: Dan White was not acquitted, but was convicted of voluntary manslaughter rather than first-degree murder, and served five years for killing two men.]
My genetics gave me terrible vision. I’ve never met anyone with correctible vision worse than mine. Over the years, I’ve had three surgeries involving scalpels slicing into my eyes, and four surgeries with lasers burning flesh off the surface of my eyes.
Does that make you cringe? I don’t blame you. But at least now I don’t have to poke rigid plastic lenses onto my eyeballs, lenses I could only wear for a few hours at a time, with the only alternative being glasses that made me literally unrecognizable to people back in the days before fancy polymers made coke bottle lenses obsolete.
Even that milder, eye-poking option may have made you scrunch your eyes shut in irrational self-protection. I don’t blame you. I’m not offended. I realize that your visceral response — while quite natural — is not a moral revelation of condemnation against my situation.
By the way, I’m an XY person. I have a penis, and I’ll protect it. If a dozen tennis balls were launched at me simultaneously, I’d cover my eyes with one hand and my flesh-and-blood balls with the other. As just as you might have scrunched up when reading about my eyes, I’d fold inward and cross my legs when hearing about a woman having her balls cut off.
Yes, a woman having her balls cut off.
An ass named Gavin McInnes has published a long, disgusting rant called “Transphobia is Perfectly Natural.” I won’t link to it. Google it if you like. I call it disgusting because it does nothing but play into the same squeamishness you may have felt when I talked about scalpels cutting in to my eyes. His
reasoning argument rant goes mostly like this. He says (sarcastically):
In fact, the only thing more normal than castrating yourself and taking tons of hormones to grow tits is chopping them off.
He’s squeamish, fine. His moral failing, though, is that he raises that squeamishness to level of moral truth. He writes:
By pretending this is all perfectly sane, you are enabling these poor bastards to mutilate themselves.
And in case that wasn’t dickish enough – I mean, douchey enough — God, even our most basic insults revolve around genitalia! And in case that wasn’t repugnant enough (odd that genitalia stand in as synonyms for repugnance, isn’t it?), he even jokes:
And ladies, if you’re a butch lesbian, you’re a lady with a lot of testosterone. Put a dick on a belt and fuck your girlfriend. You don’t need to turn your vagina inside out. You’re not a man. You don’t even know what Turf Builder is.
Not only is the joke lame — really? fertilizer is your symbol of manhood? you might want to take a Freudian look at your own sexuality — but it’s built on ignorance. Being a strong, powerful lesbian does not mean you identify as a man. Wanting to lie back and get reamed doesn’t mean I identify as a woman.
But this person, this Gavin McInnes, has set himself up as a little god. His clenched up little reactions have the force of moral law. But you know what, Gavin? It is perfectly natural for an XY person who identifies as male to clench up when he thinks about a knife cutting up his dick. But that’s not transphobia. Transphobia is when you take your personalized genital clenchiness and turn it into a Great Commandment for the rest of the world. That’s not natural. That’s not brave. That’s not ballsy. That’s just narrow-minded megalomania.
Damn, I don’t know why this pisses me off so much. It just does.
The National Organization for Marriage might just turn into my personal investment guru.
See, NOM is twirling itself around in boycott frenzy these day. It launched one against JP Morgan Chase on July 16, and another against Target on August 7. It’s hard to know whether these boycotts will hurt the companies — oh, who am I kidding? NOM’s been issuing boycotts for a while now and the results are impressive.
Here are the victims of those boycotts, and the dates they began.
Brian Brown recently claimed the Starbucks boycott led “many countries” (which ones? who can say?) to keep Starbucks from entering their markets. That’s a scary message to shareholders, so let’s take on that perspective. Suppose you were an investor who kept hearing about these boycotts, an investor who decided on September 10, 2012, to split $10,000 among these three companies that NOM so bravely took on. Brian Brown, I’m sure, would think you a fool. And how foolish would you have to be?
So foolish that your $10,000 investment in the boycotted companies would now be worth about $19,411, a return of more than 94%.
That’s how foolish you would be.
But, you know, it’s been a great year for stocks in general. What would your return have been if you’d invested in the Dow-Jones index?
In case you were wondering, 24 is less than 94. But there are other stock indices. What about NASDAP? 38%. Standard & Poors? 34%. And you might have heard that real estate is bouncing back, but returns in that market are still less than any of the ones I’ve listed here.
So, good work, NOM. Ever thought about launching a boycott against me? Who knows — I might get a raise out of it.
I had a long, intense twitter exchange with Ryan Anderson! I have to thank Michelangelo Signorile — he started the conversation and I jumped in. I used it as a chance to ask Ryan about his views on religious freedom, racial discrimination, and anti-gay discrimination — a contradictory mess that he and his colleagues have failed to sort into a coherent argument.
Let me recap their dilemma and the resulting incoherence. They oppose discrimination laws protecting gays, but they can’t appear anti-gay, because policy motivated by animus is vulnerable to a court challenge. Instead they speak of “religious freedom” and the principle that no one should have to serve a customer in violation of their beliefs. However, they don’t apply this principle when it comes to race; that would make them pariahs to the mainstream public. They explain this away by saying racism is wrong, but this leaves them open to the charge that they only want to protect the religious freedom of those they agree with, a position they fiercely reject.
It’s a logical swamp.
In our twitter exchange Ryan tried a different justification: that religious liberty is not an absolute right, but must be weighed against other measures of the common good. He directed me to his statement:
Legislators should enact commonsense religious liberty protections that would prevent the imposition of substantial burdens on sincere religious beliefs unless the government proves that imposing such a burden is necessary to advance a compelling government interest (and does so by the least intrusive or restrictive means).
Such religious liberty protections would not justify blanket discrimination, as some wrongly claim. For example, one does not hear of any sincere religious beliefs that would lead a pharmacist to refuse to dispense antibiotics to any patients. Furthermore, it has long been recognized that the government has a “compelling interest” in protecting public health by combating communicable diseases.
That’s reasonable. But it presents Ryan with a couple problems. First, it contradicts what he wrote elsewhere:
Indeed, a regime of free association, free contracts, free speech, and free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage…
Private actors should be free to make reasonable judgments and distinctions — including reasonable moral judgments and distinctions — in their economic activities. Not every florist need provide wedding arrangements for every ceremony. Not every photographer need capture every first kiss.
There’s nothing in that piece about balancing religious freedom against the common good. I do understand that free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage is more bumper-sticker-catchy than: free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage, except for when it shouldn’t, and sometimes it shouldn’t, though sometimes it should, and it, well, it — it depends on a bunch of factors that I won’t go into now.
Except that Ryan isn’t writing for bumper stickers. He’s making a lengthy argument, one that doesn’t align with his other writings.
A second problem is that he merely begs the question, Why does the “common good” override religious liberty when it comes to discrimination based on race but not when based on sexual orientation?
That’s a tricky question. You can’t answer, Because gays are bad! — that lands you in the animus trap, with your law overturned in the court. Instead, Ryan sent me to this:
Today’s debates about religious liberty and marriage are profoundly different [from debates about interracial marriage]. First, as argued above, marriage as the union of man and woman is a reasonable position; bans on interracial marriage were not. Second, as also argued above, marriage as the union of man and woman is witnessed to repeatedly in the Bible; prohibitions on interracial marriage were not.
But these two points are irrelevant, of course, even according to Ryan’s own standards. As he wrote in this piece:
The right to religious freedom is for everyone, not just for those with the “right” beliefs.
So it doesn’t matter whether your racist religious views are reasonable or Biblically sound, because religious freedom is also for the wrong. It’s for everyone.
But things really go awry with his next point:
Third, to be argued below, while interracial marriage bans were clearly part of a wider system of oppression, beliefs about marriage as the union of male and female are not.
But it’s not “argued below.” Or rather, he does argue the point about interracial marriage bans, but never establishes the part about same-sex marriage. Probably because he can’t — probably because it isn’t true.
Our history of blacklisting, imprisonment, official exclusion from federal employment, and lobotomization obviously indicate a history of oppression. Granted, excluding same-sex couples from marriage was not originally a tool of that system; it was the result. Gays were seen as such sick and twisted perverts that few thought about giving us marriage rights. Still, it was part of that system, and it did indeed become a tool of oppression with DOMA and the various state constitutional amendments designed to “protect” marriage from those who don’t deserve it and to express moral disapproval of us deviants.
Frankly, it’s astonishing that Ryan attempts this argument — and that he doesn’t even make a token effort to justify it.
So now we’re back where we started. Ryan still hasn’t explained why religious liberty requires that bakers be free to turn away same-sex couples but not interracial couples, even if their religion condemns them. His reasoning is still an incoherent mess. All he’s done is add yet another layer of contradiction.
Update: Ryan’s only response to this has been to say, “Your criticisms arent persuasive if you cant admit that male & female is quite different than black & white.” That’s a strange non-critique, but here goes. I do declare that “male & female is quite different than black & white.” And of course my rebuttal still stands, because this rather obvious statement does nothing to fix Ryan’s own internal contradictions and false assumptions.
As a blogger I get some weird, random press releases, but this one, well, read it:
Below, please find the product announcement for the one and only Step And Go. Call it a “poop stool,” a “sit-and-shit,” whatever you want – we promise you the thing works and to that end, would be happy to send one for you to review.
The owners of the company are pretty unique – they actually encourage a little mocking of their own product. They know this is a hard one for people to…. Digest.
So please let us know when and where to send product! We look forward to hearing from you soon.
It’s from a real PR company. What do you think? You folks want to see a review?
UPDATE: It appears to be this.
Anti-gays hate the word homophobia, but we need it for those times when someone’s reaction to homosexuality makes them take leave of their senses, lose their ability to think clearly, and fail at creating coherent arguments. These are signs of a debilitating psychological disorder in play, and it’s fair to call it out as such.
For instance, conservative darling Ben Carson is a brilliant man. He’s the former director of pediatric neurosurgery at Johns Hopkins. In 1987 he successfully separated conjoined twins who were joined at the back of the head, in a pioneering 22-hour surgery. The man is extraordinarily gifted.
Within in his field.
At the 2013 National Prayer Breakfast, though, he gave a socially conservative speech that launched him into right-wing prominence, and he’s touted now a possible presidential contender in 2016. He wants to end political correctness and replace it with civil discourse. And he’s unhappy with people who say, “Carson is a homophobe because he believes marriage is between a man and a woman.” He tries to explain why they’re wrong, using a “helpful analogy” that mostly confirms his inability to think clearly when it comes to teh gays.
It’s sort of like a new group of mathematicians that come along, and they say 2+2=5. And the traditionalists say, ‘No, it’s 4, it’s always been 4, it always will be 4.’ And the new ones say, ‘No, we insist that it’s 5.’ So, that the traditionalists say, ‘I’ll tell you what, for you it can can be five; we’re keeping it as 4.’ And then, the new ones say, ‘No, no, it has to be 5 for you, and if it’s not, then you’re a mathosaur or a mathophobe. And basically, that’s the situation we find ourselves in.
Now, these are carefully considered remarks offered in a friendly setting. Nevertheless, there is so very, very much wrong with this analogy.
First, we have a term for mathematicians rely on “tradition” to explain why 2+2=4; we call them not mathematicians. Just as we’d refer to deep thinkers who rely on tradition to oppose same-sex marriage as not deep thinkers. Turns out it’s surprisingly complex to prove 2+2=4, but tradition is not the way to do it.
Second, this business about, “I’ll tell you what, for you it can can be five; we’re keeping it as 4,” is exactly wrong. We’re the ones saying, “I’ll tell you what, some marriages can be a man and a woman, and others can be a woman and a woman or a man and a man.” And they’re the ones saying, “No, no, it has to be a man and a woman, and if you disagree then you’re a name-calling anti-Christian homofascist.”
Finally, of course, we’re not saying that 2+2=5. I don’t want to get too literal, but an analogy ought to at least feel like the thing it’s analogizing. Look at the structure of 2+2=4. It’s about two things coming together to form a unit. That’s an obvious analogy for marriage, and because we’re saying our marriages are real and genuine marriages, we’re saying that our marriages add up to 4 just like Carson’s does.
Which leads to my suggestion for how to counter his analogy — because let’s face it, you don’t want to lecture for three or four paragraphs to make your point. Instead you can just reply:
We’re not saying 2+2=5. We’re saying 2+2=4. And so does 1+3. And 3+1. Different combinations can add up to 4, just like different combinations can add up to marriage. Saying only a man and a woman can create a marriage is like saying only 2+2 can equal 4.
And I think that’s the best way of dealing with these bad analogies. Take them over, make them better, and turn them against the speaker’s original point. There’s something very satisfying about that.
This is fun. I’m working up something on Same-sex marriage is like a square circle, and if you’ve come across any other bad analogies you want to examine, put them in the comments (with a link, if you can).
Gays present mainstream social conservatives with a great dilemma, because they try to hold such contradictory positions. For instance
- They want to oppose laws outlawing anti-gay discrimination by using the rhetoric of liberty, so they don’t look like obvious anti-gay bigots (we’re talking mainstream so-cons, of course).
- They want to avoid the PR disaster of looking like they oppose laws outlawing racial discrimination.
But this trips them up, because to achieve the first goal, they often don’t talk about gays at all. They use code words like religious freedom and freedom of association. But that makes them run afoul of their second goal, as I recently summarized in this graphic:
You can see this conflict in Ryan Anderson of the Heritage Foundation. Now that NOM is nominal force in the culture wars (thanks, Richard Rush!), I pay them less attention and focus it more on Ryan, who represents an influential conservative think tank and edits an intellectual mouthpiece, The Public Discourse.
Ryan has tripped up on this contradiction before, and recently he’s just made it worse. To refresh your memory, Ryan tweeted a while back that “you have no right to have anyone bake you a wedding cake.”
Someone reasonably asked, “Bakeries aren’t able to turn away interracial couples. Why is anti-gay discrimination more acceptable?” And Ryan answered, “racism is wrong. Marriage has nothing to do with keeping the races apart. Marriage is about uniting male and female.”
The problem is that many racists would disagree, and disagree on religious grounds. This forces one to conclude that Ryan is only concerned with freedom for religious beliefs that he approves of, which isn’t religious freedom at all, but a theocracy with Ryan in charge.
Lately, he’s had to alter his message. He wrote a long, long post on 6 steps for moving forward in the battle against our rights; step 2 is “Defend our form of government and our liberties.” He starts with the familiar refrain: Read more…
Mark Regnerus has gotten a lot of flack lately for publicly criticizing a positive Australian report on same-sex parenting, a classic example of the pot calling the kettle incompetent. Hidden in his critique, though, is a little nugget that deserves more attention.
Midway through, Regnerus flogs his notions about the instability of same-sex couples, but then tries to substantiate them by linking to research that proves him wrong — and in doing so, brings to light a study that we should all have bookmarked.
A bit of background. We lambasted Regnerus, of course, for presenting his famous study as research into same-sex parenting even though he did not specify outcomes for kids raised by same-sex parents, mostly because he hardly studied any kids raised by same-sex parents. His defense was that grown-up kids like that are hard to find because families like that seem to be unstable, and then he turned this alleged instability into further criticism of same-sex parenting.
He pushes this theme again in his recent critique:
Children fare better in an environment of household stability. In the NFSS, stability was largely absent when an adult child reported a parental same-sex relationship. Hence, their life experiences were (on average) notably more challenging than those of their peers with married mothers and fathers. Some critics felt this was an “unfair” comparison. But if social reality is unfair, there’s not much that any sociologist can do about that.
But will same-sex parents’ relationships be more or less stable in the future? On the one hand, we know that same-sex relationships in general—across multiple datasets—remain more fragile than opposite-sex ones (and to be fair, no group is performing all that well).
That link is in his original, and with that link we strike gold. Read more…