Supreme Court’s Big Gay Pandora’s Box
The idea that we should make gay marriage the law of the land and yet refuse to force businesses to follow that law is unjust and absurd.
Everybody’s up in arms about Mike Pence, Mike Pence, Mike Pence. My arms are up too. In fact I have anti-Pence cred going way back, to his chairmanship while in the House of the Republican Study Group, which played a key role in dragging the whole House GOP caucus hard to starboard. Indeed he was a protean figure in the lower chamber, a man ahead of his time, in whose breast dwelt deeply reactionary tendencies driven both by fiscal malevolence and alleged Biblical prophecy. There weren’t nearly as many of those in his day, so he was worth noticing, and to longtime Pence students, this law he’s signed is as unsurprising as a thing can be.
But I suggest to you, friends and comrades, that we also concern ourselves with the Supreme Court here. The High Court started all this, with the Hobby Lobby decision, and it’s the court that is steering us into some potentially dark and dangerous waters here.
Consider this. As we all know, the court is set to release its decision on same-sex marriage, probably at the end of its term in June. Virtually everyone thinks that a five-justice majority is going to uphold a federal right for same-sexers to marry. That would consist, of course, of the court’s four liberals plus Anthony Kennedy.
Okay, that’s great, if it happens. But remember: This is the same court that just said that it is okay, on the basis of religious conscience, for businesses to discriminate against gay people and refuse to photograph or cater or be-flower their wedding ceremonies. (The court actually ruled that privately held corporations could discriminate, but I guess since corporations are people, the various red-state legislatures have extended the principle to smaller enterprises.) So if the court rules for same-sex marriage this June, it will have said, in the space of exactly one year: Same-sex marriage is the law of the land, but refusing to honor same-sex marriage is the law of the land, too!
Does this make any sense? To your average person I would reckon it makes no sense at all. What kind of court says X is the law, but disobeying X is also the law? Ah, but see, you’re just a regular person, not a legal scholar. And you’re clearly not Anthony Kennedy, the justice who will singlehandedly have made this predicament a reality (if it ensues) by having ruled for religion-based discrimination in Hobby Lobby and for same-sex marriage. Because to legal scholars and Anthony Kennedy, it all makes sense.
If we could ask Kennedy how he defends this, I would imagine he would insist that his position is not simply a valid one but in fact the only valid one, the one that holds two competing and legitimate points of view in perfect equipoise. The one interest is anti-discrimination, the other interest is religious freedom of conscience. Both, Kennedy would say, can be simultaneously advanced and defended.
There’s a phrase for this in the legal discourse, which is the brainchild of Mark Graber of the University of Maryland School of Law. The phrase is “Lockean Compromise,” and it means that “persons ought to be allowed to discriminate…as long as doing so does not burden others.” You can read more about it here (PDF), in a highly informative law review article by Samuel Bagenstos of the University of Michigan Law School.
What does the Lockean Compromise mean in real life? Something like this: Jane and Helen live in Ann Arbor and want to get married. They approach Rosemarie the florist, but Rose, being a conservative Catholic, gives them the stiff arm. But thanks to old John Locke, who developed certain theories about property and sharing and such, we stop, and we realize that there are scads of other florists in Ann Arbor willing to do their arrangements, and so Jane and Helen go find one of them, and they get their flowers, and Rose loses no sleep. No harm, no foul.
Yeah, well… if the legal experts assure me that this is okay, I guess it’s okay, but I have to say it sticks in my craw. What if Jane and Helen live not in Ann Arbor, but in Luverne, Alabama, where no florist will accommodate them? Well, in that case, they are being harmed, so the discrimination would presumably be unlawful. But the wedding date would long since have come and gone before the courts could sort that out, and the cultural-politics scimitar would rend the civic fabric of dear Luverne for some time.
Now, as a practical matter, they’d probably just go to Montgomery, where they’d eventually find a gay-friendly florist. There must be one, anyway. And this leads a lot of people to say, “In real life, this just isn’t going to come up all that often.” I’m not so sure about that. But whether it happens once or 1,000 times, I find the principle weird and disturbing. There is little, or no, precedent for it in our history. That is, there was no religious-conscience exemption when we were changing our racial laws. Loving v. Virginia (1967) lifted the ban on racial intermarriage. And boom, that was it—it was the law. Imagine if there had been such an exemption back then, and be honest: How long would it have taken for interracial marriage to be accepted in a certain region of our great nation that shall remain nameless? Progress would have come slower’n a bread wagon with biscuit wheels.
We all used to believe this. The law was the law. Then, in the late 1980s, two Native American men who consumed peyote as part of a religious ritual were fired from their jobs, and they sued, claiming that their religious beliefs made their illegal behavior all right. It went all the way to the Supreme Court—but they lost. Americans could not defy laws of “general applicability” and use religion as an excuse. The justice who penned the majority opinion wrote: “To permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Quite right, say I. That was Antonin Scalia. Of course, that was back when the petitioners were red men who wanted to use drugs. Now that the petitioners tend to be conservative Christians, he’s seeing matters a little differently. Anyway, it was after that peyote business that Congress first passed the Religious Freedom Restoration Act, and now we’re up to our noses in bigoted idiocy like Mike Pence’s.
I guess I’m just a relentless secularist, but I think laws are laws, and I think if you run a flower shop and weddings are a big part of your trade and now men can marry men and women can marry women, well, you just roll with it. It’s. The. Law. And by the way, if you’re a liberal atheist proprietor of a B&B, and that nut from the Westboro Baptist Church brings his posse to your reception desk because they’re holding one of their “God Hates Fags” rallies nearby, you have to let them stay. The 1990 Scalia was right.
With any luck—and here is where I remind you that the next president will probably nominate three and maybe even four Supreme Court justices and yes you love Elizabeth Warren and yes you’re down on Hillary but Warren isn’t running and Clinton is and no she’s not perfect but please just deal with it and if nothing else think about a liberal majority on the Supreme Court for the next 30 years and counting all right?—we might get back to that understanding some jurisprudentially provident day.