March 27, 2013

"5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses."

The 2 hours of oral argument in the DOMA case have ended. Adam Liptak summarizes:
“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said....
It should please conservatives to see an opinion based on the lack of an enumerated federal power. Unlike yesterday's Prop 8 case, the legal problem isn't only about constitutional rights. There's a question of congressional power (which should have been addressed 15+ years ago).
Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment.

Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.
Ha ha. That's what I said in my post earlier this morning: "They're lying back waiting for the Court to do the difficult work.... It might be that the Court shouldn't rescue the administration from its politically uncomfortable position." If the matter belongs in the political area, let them sit in their own mess.

AND:

ALSO: If the 4 liberals "see... gay rights" and the 5th vote says there's no enumerated power, there can be a result without an impact on what states can do. The federal government would have to start recognizing same-sex marriages from the states where they are legal, and there wouldn't be any rights-based doctrine applicable to the states. There would be an open question about the part of DOMA that authorizes states to deny recognition to ssms from states that record ssms. The argument for an enumerated power there is somewhat different. If that part of DOMA were stricken down too, there is still an argument that the states could deny recognition to ssms performed elsewhere. In fact, it's an argument DOMA tried to resolve. So somewhere down the line, it's possible that ssm would apply everywhere as long as couples travel to a state that permits them, which would be very easy to do.

80 comments:

Nomennovum said...

If the matter belongs in the political area, let them sit in their own mess.

Does Choom ever sit in a mess of his own making?

BarrySanders20 said...

States' rights!

So if states get to define marriage, then yesterday's kabuki was just for show?

Henry said...

Put me in the camp of those that think DOMA clearly unconstitutional.

And, despite my support for gay marriage, I can't see how the assertion of that right comes out of the constitution.

I'd much rather see it happen legislatively on a state-by-state basis. Hopefully RI will be next.

Jay said...

It should please conservatives to see an opinion based on the lack of an enumerated federal power.

Except this sigular example of using the "lack of an enumerated federal power" is only being done to enforce a policy preference.

The principle of enumerated federal powers matters little to none at all to said person using it as justification.

Oso Negro said...

"Justices Seem Skeptical of Ban on Benefits to Polygamous Spouses"

I burn to see this headline the day when you twoist bigots are cast down by the court. Fairness! Consenting Adults!

Jay said...

I would love, love, love for a ObamaCare supporter who thinks DOMA is unconstitutional to explain the difference between the two.

Factually, that is.

Jay said...

He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples.

How stupid.

A single definition was created for federal purposes.

Not liking the definition doesn't mean one wasn't created.

garage mahal said...

They should release pink smoke out of the Supreme Court when they reach a decision.

edutcher said...

What if a homosexual wants to marry his 16 year old twin first cousins?

A fourfer.

Nomennovum said...

If the matter belongs in the political area, let them sit in their own mess.

Does Choom ever sit in a mess of his own making?


Ever since January of '09, but nobody will tell him it doesn't smell like roses.

RichardS said...

Good to see the CJ following the classic idea that the Court is not the only one of the three equal branches with the right to decide what the constitution means.

BarrySanders20 said...

Oso,

I am a one-at-a-time, humans-only bigot.

Polygamy has a far more solid basis in human tradition and culture than ssm, yet my twoist bigotry prevents me from supporting a multi-spouse lifestyle.

I suppose, though, if some state (Utah?) wanted to pass a law that said the more the merrier for spousal collection, then the states' righters should applaud that on principle.

Oso Negro said...

The smoke will be blown out of their asses in all likelihood, Garage.

Tank said...

It should please conservatives to see an opinion based on the lack of an enumerated federal power.

For those against gay marriage, I suspect it will seem like a cruel joke.

Colonel Angus said...

They're lying back waiting for the Court to do the difficult work

Having someone else do the difficult work is how Obama has lived his whole life.

Oso Negro said...

BarrySanders, fear and common sense constrain me to a single spouse, a love of liberty prevents me condemning the pluralists.

Jay said...

I'm glad the NYT uses the term benefits.

Because that is what this is really about, transferring wealth from middle class laborers to mostly white, affluent, gays in big cities such as New York, Boston, DC, Miami, and San Francisco.

Democrats must be so proud taking money off the backs of middle America workers to lavish benefits onto mostly white, affluent big city residents...

Sigivald said...

It should please conservatives to see an opinion based on the lack of an enumerated federal power.

It pleases this libertarian no end.

If only the Justices would apply that standard in every case... (as Jay says; I have little faith that the Court generally has much respect for enumerated powers; see Raich).

(I'm more or less with Henry; I'd be perfectly happy with the State getting out of it and letting anyone get married to anyone civilly.

And I don't see any plausible way to say with a straight face that the Constitution demands a "right to marriage" for anyone, ever, regardless of the genders involved.

The Constitution is not a magic document that automatically expands to include whatever "We" decide is now a Basic Right at the moment the Court gets asked to decide.

That's what Amendments are for.)

MayBee said...

I hate it that people who are legally married in a state that allows SSM can't use the marital status federally. I'd be happy to see DOMA struck down.

Colonel Angus said...

(I'm more or less with Henry; I'd be perfectly happy with the State getting out of it and letting anyone get married to anyone civilly.

The State can't get out of it if the State has to validate the marriage.

caseym54 said...

So, how exactly would Obama "refuse to enforce" DOMA? Would he direct the IRS to allow SS couples to file joint returns? I truly doubt he can do that without violating a host of other laws, not to mention the prohibition on handing out money without Congressional authority.

Hagar said...

So somewhere down the line, it's possible that ssm would apply everywhere as long as couples travel to a state that permits them, which would be very easy to do.

Seems a lot more onerous than obtaining photo ID.

Jay Retread said...

I wish that the states that are not stuck in the dark ages (New York, Mass, Iowa) will tell states that do not recognize same sex marriages from their states that they will retaliate and not recognize male/female marriages from bigoted states.

MadisonMan said...

The Court should do nothing. Let the Legislature deal with this by repealing -- or re-writing -- the law so that it's (1) Constitutional and (2) Enforceable.

And point out that it's the job of the Executive Branch to enforce the law.

Henry said...

The State can't get out of it if the State has to validate the marriage.

It's the states that can't get out of it.

Here's Mayor Daniel McKee of Cumberland, Rhode Island:

McKee said personal or religious opinions about gay marriage are not relevant to whether gay and lesbian couples should be granted the same marriage rights as straight partners.

"I see it as a classic church and state issue," he said. "When somebody comes to my Town Hall for a marriage ­license, I don’t ask where they are going to get married."


From the article I linked above.

Marshal said...
This comment has been removed by the author.
Marshal said...

It should please conservatives to see an opinion based on the lack of an enumerated federal power.

Quite revealing though that the only time the feds and lefties recognize the relevance of enumerated powers is when the result increases the net powers of government. It never seems to come up when the result is less total government power. What an amazing coincidence.

And how underhanded for people to highlight the effect only on federal. It's like focusing on cash back portion of a credit card but failing to note the 18% interest rate.

Ann Althouse said...

"Because that is what this is really about, transferring wealth from middle class laborers to mostly white, affluent, gays in big cities such as New York, Boston, DC, Miami, and San Francisco."

First, these affluent gay guys you picture would pay more taxes if they were regarded as married.

It's only the couple with a stay-at-home spouse (or much lower-earning spouse) who come out better under the tax law when they're married.

Renee said...

For the purposes of the tax code can the federal go ernment define words one way or the other.As you mentioned marriage is embedded in the federal tax laws.

Brew Master said...

Renee said...
For the purposes of the tax code can the federal go ernment define words one way or the other.As you mentioned marriage is embedded in the federal tax laws.


Penalty = Tax

Sound familiar?

Michelle Dulak Thomson said...

IANAL, but I don't see how Section 3 of DOMA survives analysis under the Full Faith and Credit clause. It seems obvious that a legal marriage in one state is a "public act" of that state. How could anyone think that the FF&C clause doesn't require other states to recognize the marriage, let alone permit Congress explicitly to allow the states not to recognize it? It has always amazed me that Clinton signed this thing.

To me, Section 2, the one all the argument is about, seems much more defensible constitutionally, though not necessarily morally. I don't see anything preventing Congress from defining "marriage" for the purposes of Federal law, particularly as the definition in DOMA would have been utterly uncontroversial at the time most of the law affected was passed. I may want a different definition myself, but how can the Constitution forbid Congress creating one?

Michelle Dulak Thomson said...

Ann,

First, these affluent gay guys you picture would pay more taxes if they were regarded as married.

It's only the couple with a stay-at-home spouse (or much lower-earning spouse) who come out better under the tax law when they're married.


All true, as regards income tax; not true, as regards estate tax. Isn't that what the specific plaintiff in the DOMA suit complained of? That she was hit with a $360K estate tax bill because, in the eyes of the IRS, she wasn't legally married to her spouse?

Robin said...

Michelle Dulak Thomson - read the whole Full Faith and Credit clause. Who is given power to set rules regarding its effect?

Further, there is a long line of Supreme Court cases that state that a state is not required under the FFC to recognize another's states' laws that conflict with its own public policy.

Chuck said...

Dear Professor Althouse,

I was wondering if you had an answer to yesterday's question from Justice Scalia: when did the right to same sex marriage arise?

Of course, Ted Olson answered the question with a question before his ultimate answer. Olson's reactive question was, when did the right to interracial marriage arise, to which Justice Scalia unhesitatingly said 1868. And then Scalia returned the volley back to Olson for an answer. And Olson's answer was "There’s no specific date , this is an evolutionary cycle."

Do you, Prof. Althouse, have a better answer than Ted Olson did?

Michelle Dulak Thomson said...

I should have added that there's nothing impossible about a same-sex couple being "affluent" and at the same time having one partner making much more income than the other, or for that matter having one partner unemployed, voluntarily or involuntarily. There's nothing intrinsic in the "marriage bonus" that wouldn't apply to SS couples exactly as it does to OS couples. The only difference is that many (not all) OS couples choose to have one spouse at home because there are young children to be taken care of; but a great many SS couples also have children.

Michelle Dulak Thomson said...

Robin,

Yes, And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

To my unlawyerly eye, that looks like a stipulation that Congress has the authority to set up rules for deciding, in a dispute between states as to whether said "acts, records, and proceedings" do in fact exist/have in fact taken place, whether they actually have. What it does not look like is a blanket power of Congress to permit any state to ignore any other state's acts on a particular subject, which is what DOMA does.

vanceone said...

So here's the constitutional question I have.

Back in the 1800's, it was held constitutional that Mormons could be thrown in jail for participating in Polygamy.

It was constitutional --by a 9-0 vote, no less-- that Mormons could be stripped of the right to vote just because they believed in polygamy. Even if they did not participate, the act of belief alone was enough to take away their right to vote. Davis v. Beason.

How can any of this be reconciled with SSM? Heck, Utah can never, ever have polygamous marriages. Why? Because as part of their admission to the union, it was put in their constitution that they were not legal--and that part of the constitution was specifically forbidden from being amended. This seems particularly like gays get rights that straights cannot ever get.

I think you could make an argument that if Utah was ever forced to allow polygamous relationships (as the after SSM argument will go) then they are not in the Union anymore, due to various enabling acts, etc.

Freder Frederson said...

All true, as regards income tax; not true, as regards estate tax. Isn't that what the specific plaintiff in the DOMA suit complained of? That she was hit with a $360K estate tax bill because, in the eyes of the IRS, she wasn't legally married to her spouse?

But "middle America workers" are generally not subject to the estate tax. So what the hell is Jay's point?

Renee said...

Brew Master, Exactly! We use the tax code to promote and penalize behavior. Carrot on a stick to encourage heterosexual couples to marry for their offspring and to buy health insurance.

And corporate loop holes as well for campaign favors.

Dante said...

Ann Asserts:

First, these affluent gay guys you picture would pay more taxes if they were regarded as married.

Lots of assumptions there, Ann.

The first question is "What is the compelling reason for gays to get married?" To have a ceremony? They can do that already. To ensure celibacy? On your own blog you have a guy who bragged about going off to make sure he still "has the stuff," despite that he's married to his gay Indian lover in MA.

I think it's money. There really isn't another reason, unless you think the state defines love.

So gays will get married when it makes financial sense, and not when it doesn't.

This isn't the same for heterosexual couples who are seeking to raise a family. Society still applies a premium to fidelity in a marriage, a primary reason for men to marry, and the legal obligations that go into it for a woman.

Michelle Dulak Thomson said...

vanceone,

I wasn't familiar with Davis v. Beason. Golly. "Thoughtcrime" avant la lettre.

From the Wikipedia article on the case:

Justice Field, writing for the Court, condemned polygamy, writing that "Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment." He went on to echo Reynolds v. United States (1878): "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation." He wrote by way of comparison that if a religious sect advocated fornication or human sacrifice, "swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the constitution of the United States."

Little did he know; there have been a variety of religious sects in the succeeding century and a quarter that were rather keen on fornication. (I'm thinking mainly of the followers of Wilhelm Reich of "orgone energy" fame -- there used to be [maybe still is] a sort of orgone ashram in Berkeley, complete with interesting phallic artwork -- but there's also the whole "tantric" sex thing.)

Farmer said...

Althouse: "Why can't conservatives forget the gay marriage stuff and focus on fiscal issues? Harumph!"

Althouse: "Gay couples need tax breaks! It's an issue of fairness! Who cares about the expense?"

Dante said...

Farmer:


Althouse: "Gay couples need tax breaks! It's an issue of fairness! Who cares about the expense?"

She wrote this? That would be obscene.

hombre said...

Freder: But "middle America workers" are generally not subject to the estate tax. So what the hell is Jay's point?

So "middle America workers" don't generally have relatives who leave money subject to existing or aspirational Democrat death taxes? Who knew?

dcm said...

Jay-
The estate tax only applies if the estate is over a million dollars.

dcm said...

And there are many, many ways to avoid the tax. You can give 15k a year to as many people as you want and it won't count. You can set up trusts, you can set up generation skipping trusts.

Michelle Dulak Thomson said...

dcm,

Jay-
The estate tax only applies if the estate is over a million dollars.


And if the tax bill here was $360K, we are talking one very wealthy elderly lesbian, even after the IRS got its cut. But those are the grounds on which the suit was launched, not the right for two gay guys with identical high incomes to get massively dinged by the "marriage penalty."

Lyssa said...

Renee said: We use the tax code to promote and penalize behavior. Carrot on a stick to encourage heterosexual couples to marry for their offspring and to buy health insurance.

I think that if the law at issue were built into the tax code specifically for that reason, there would be a much stronger argument for it. But DOMA isn't tax law, and it's not for the purpose of using the tax code to encourage any behavior. The fact that it impacts taxation is just a side effect of the law itself.

(Insert quip about Justice Roberts *interpreting* it as a tax here.)

Renee said...

Lyssa

Total agreement in regards to why DOMA makes no sense, it hangs there with no function. If I want marriage to mean something, it has to be attached to a purpose.

Lyssa said...

Renee, I love how you and I always start out kind of disagreeing, and wind up basically completely agreeing. :)

Matt said...

Even Bill O'Reilly is coming around granted by being inaccruate in his depiction of the conservative argument against.

"The compelling argument is on the side of homosexuals. That is where the compelling argument is. We're Americans, we just want to be treated like everybody else. That's a compelling argument, and to deny that you've got to have a very strong argument on the other side. And the other side hasn't been able to do anything but thump the Bible."

Renee said...

Father absence is a concern, Bible or not.

Nomennovum said...

I wish that the states that are not stuck in the dark ages (New York, Mass, Iowa) will tell states that do not recognize same sex marriages from their states that they will retaliate and not recognize male/female marriages from bigoted states. - Retread

Sounds like a workable plan. Can it be applied retroactively please? It'll save me millions.

Nathan Alexander said...

I have always said that SSM was discrimination on the basis of behavior, and that it is permissible for people/the govt to do that.

It is very interesrting that the lead lawyer for the pro-SSM agrees with me.

Of course, he only applies that standard to incest, bestiality, and polyamory.

But it is always nice when the lead lawyer for a bogus issue uses his strongest argument and inadvertently admits he's got no case at all.

I just wish we didn't have 4.5 SCOTUS Justices who completely disregard the US Constitution to rule in favor of whatever is the Democrat Fashionable Cause of the Day.

Lyssa said...

Renee Father absence is a concern, Bible or not.

I 100% agree with that, and I think that many would. The problem is that the anti-SSM side has not been able to draw a solid connection between fatherlessness and SSM. SSM didn't cause the current problems with fatherlessness, and there's been no compelling evidence that it could exacerbate them in any significant way.

cubanbob said...

Not that it will but logically if these lines of question are indicative the court will overturn DOMA and proposition 8 as a a federalism issue.

States routinely enforce other state's laws and court judgments so an SSM marriage can be recognized in a state that doesn't allow SSM and the federal government can apply federal issues such as taxation and benefits irrespective of SSM or heterosexual marriage provided there is a marriage contract. The operative term is marriage contract which is legally what a marriage is. As for divorce its not a stretch for an SSM entered in to a state that allows it to be dissolved in a state that doesn't using that state's divorce laws or termination of marriage by death. Taxation, inheritance, benefits and obligations from a federal perspective can be gender blind as long as a valid marriage contract was entered in to to begin with.

Nomennovum said...

SSM didn't cause the current problems with fatherlessness, and there's been no compelling evidence that it could exacerbate them in any significant way.

Can't argue with that, Lyssa! We are just beginning the great experiment now. This is what socialists do all the time, they use us as guinea pigs.

Methadras said...

What's to stop someone from proclaiming they are a homosexual to gain rights only given to homosexuals?

Matt said...

Nomennovum
This is what socialists do all the time, they use us as guinea pigs.

So you're saying socialsm caused fatherlessness? I don't understand? It seems to me divorce is something that everyone from every political type uses. In short, kids have been raised fatherless for quite a long time. You could blame many factors for that. Including war, cancer, or just regular divorce.

Renee said...

So how should states address fatherless without the use of marriage?

Start from scratch?

garage mahal said...

What's to stop someone from proclaiming they are a homosexual to gain rights only given to homosexuals?

Asking for a friend!

Dante said...

So you're saying socialsm caused fatherlessness? I don't understand? It seems to me divorce is something that everyone from every political type uses. In short, kids have been raised fatherless for quite a long time. You could blame many factors for that. Including war, cancer, or just regular divorce.

I was thinking of the AFDC man in the house rule.

Educate yourself.

In this new period the expectations of the Negro Americans will go beyond civil rights. Being Americans, they will now expect that in the near future equal opportunities for them as a group will produce roughly equal results, as compared with other groups. This is not going to happen. Nor will it happen for generations to come unless a new and special effort is made.

Written in 1965 by a liberal, who was pilloried by his fellow leftists for daring to think logically.

Jay said...

Ann Althouse said...

It's only the couple with a stay-at-home spouse (or much lower-earning spouse) who come out better under the tax law when they're married.


I love you leftists gettin' all specific and wonky when it comes to your hobby horses.

Remember when you were all concerned about the over the top, hysterical leftist charges regarding the Bush tax cuts?

Me too!

Jay said...

dcm said...

Jay-
The estate tax only applies if the estate is over a million dollars.


I'm not talking about the estate tax.

I'm talking about the "over 1,000 federal programs available to married couples"

Those programs have costs.

Costs that will be borne by the working stiffs!

Jay said...

Freder Frederson said...
But "middle America workers" are generally not subject to the estate tax. So what the hell is Jay's point?


Remember when you got all specific and wonky when Harry Reid and Nancy Pelosi asserted the Republicans want to give tax breaks to "millionaires and billionaires" paid for by the middle class?

I do too!

That is the point.

Thank you for proving it.

Nomennovum said...

Matt,

No you don't understand.

Reread what I said. I simply agreed with Lyssa that there has been no study on the effects of homosexual marriage on fatherlessness. (I mean, how could there be? This is a brand new thing in the world.) It simply cannot be studied in a lab (which Lyssa's somewhat silly point implies), so there cannot be "compelling evidence that it could exacerbate" fatherlessness. The test will be a real-world one. See?

Regarding your point that conservatives divorce, I am sure leftists everywhere think this is some kind of ultimate gotcha!!! point. How can conservatives say divorce is bad when they themselves divorce??? HMMM???!! This is a profoundly adolescent position concerning hypocrisy.

garage mahal said...

Where were you when ________ happened and ______ said ___________ ??????

!!!!!!

Matt said...

Dante

You took that paragraph out of context. He goes on to say the REASONS that equal opportunities will not happen is because America still had a racist virus and three centuries of 'Negros' being mistreated will not just go away because of civil rights legislation. He is making a very liberal argument on that point, actually.

Nomennovum said...
This comment has been removed by the author.
Nomennovum said...
This comment has been removed by the author.
Nomennovum said...

And get this straight too, Matt. I am in no way saying that gay marriage will result in an increase in fatherlessness. I don't see it having much of an effect, really. Fatherlessness will continue to increase in any event. For reasons no one here wants to hear from me again, I think giving gays the right to marry is fine. I also give away a lot of my bought-and-paid-for possessions every single day. My municipality calls this stuff "garbage." Others may disagree.

Matt said...

Nomennovum

But the fatherless part only applies to lesbians who have kids. I don't know the stats but fathers - besides being two fathers! - would have to be figured in.

I will agree that a stable two parent home is important for kids. But if the choice is two daddies or two mommies vs one daddy or one mommy then I'm going with the former.

More importantly this real world test you speak of is not something that would [or should] be considered from a legal stand point. No judge would throw out gay marriage because it would lead to 'fatherlessness'.

Matt said...

Nomennovum

Okay, I see you commented when I did. Fair enough.

Renee said...

How does the state address fatherless and encourage fathers to be dads? They're more then sperm donors and child support, they have a positive social impact on their children.

We can not specifically state that each child has a biological mother and father as a matter of law.

Children should not be denied there other biological parent, because one parent is gay. A straight mom can not deny her child to bio dad if they are separated, so why being gay gives this right to deny a child their rights?

Renee said...

If gay marriage does not increase it decrease fatherless, then what will decrease it.

Oso Negro said...

Matt - he is indeed making a very liberal argument. I re-read the paper about a month ago. What is historically under-discussed, to my mind, is the expectation on the part of Negroes of equality of outcomes. Liberty just wasn't good enough.

Andy Freeman said...

> Here's Mayor Daniel McKee of Cumberland, Rhode Island:

> "I see it as a classic church and state issue," he said. "When somebody comes to my Town Hall for a marriage ­license, I don’t ask where they are going to get married."

Oh really? I'm pretty sure that the marriage licenses that McKee issues aren't good for marriages performed outside the state.

Which reminds me, why aren't CCWs good in other states? Full-faith and credit and all that. Plus, the relevant right actually is in the constitution.


Nomennovum said...
This comment has been removed by the author.
Dante said...

Matt:

You took that paragraph out of context. He goes on to say the REASONS that equal opportunities will not happen is because America still had a racist virus and three centuries of 'Negros' being mistreated will not just go away because of civil rights legislation. He is making a very liberal argument on that point, actually.

You need to read the whole thing.

kimsch said...

If the federal government has no business in marriage, then the federal courts would have no business with Prop 8. So Prop 8 stands (state power - people voted) and the feds get out of the marriage business.

Actually, I think the government should get out of marriage all together. Civil unions for all, marriage belongs with your religion of choice.

Marriage has been diminished for quite some time for several reasons: Hey, it's a-okay to go out and have kids (with several different baby mamas or baby daddies - the more the merrier!) without benefit of marriage. No problems there. If it feels good - do it! Then divorce was made easy. Don't like him or her anymore? Grass greener on the other side? No problem.

But then we get into First amendment issues. Freedom of religion and free association. Churches being forced to serve when it's against their tenets.

It's already happened. IIRC in New Jersey a Methodist Church was sued for refusing an SSM reception in their hall. The court said they had to comply with the request to use the hall. You see, the Church has rented the hall to secular groups before, so not renting to this same sex couple was discrimination.

Christian churches perform outreach to anyone and everyone. Because they offer services to those that aren't necessarily the same religion, any religion at all, or even the same denomination shouldn't lose them their First amendment religious rights. They choose to associate with those that are different from themselves but they still retain their rights to freely exercise their religion.

Christian lay people and business owners also retain those rights. Choosing to run a business doesn't deprive one of those rights.

And the photographer in NM who didn't want to take pictures at a same sex commitment ceremony. By refusing the couple, she was discriminating. She is appealing the NM "Human Rights" committee meeting on Freedom of Expression grounds since she's a creative artist with the photographs. I think it should be Freedom of Association. The government should get rid of the anti-discrimination laws and the "public accommodation" classifications. Businesses who are considered to be discriminatory will be punished or rewarded by the market.

When I was first married in Germany, we had to have a civil ceremony for it to be legal. Church services were for God and family. They weren't legal for the State. Pastors, Rabbis, Imams, what have you couldn't legally marry anyone. The only legal officiant was at the clerk's office.

If we have civil ceremonies for all (make everyone's current marriage retroactively civil and all future unions civil then same sex and heterosexual couples will go get "married" in the religion of their choice where their clergy member agrees to perform a marriage.

But this would also entail holding clergy who refuse to perform a same sex marriage harmless for refusing. There will be no lawsuits to try to sue to force the establishment to perform the ceremony. That goes for businesses too.


Nathan Alexander said...

If the fed or state govt gets out of the marriage business, the left will complain that the bigots would rather nit have marriage at all than share it with gays.