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Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

On Censorship, Same-Sex Marriage, and a Cartoon Rat

photograph of tv screen displaying an Arthur episode

On May 13th, the children’s television program Arthur, based on the popular storybooks featuring anthropomorphic animals, premiered its 22nd season with an episode titled “Mr. Ratburn and the Special Someone.” Alabama Public Television refused to broadcast it, citing concerns about its inclusion of a same-sex wedding. In the story, Arthur and his friends learn that their teacher, Nigel Ratburn (a staple character for decades), is engaged to be married, but they worry about what that will mean for their future when they see him with a grumpy, unfamiliar woman. Eventually, the children realize that the woman is Mr. Ratburn’s sister who is in town to officiate the ceremony – Nigel’s actual partner is revealed to be Patrick, a kind chocolatier introduced in the episode. In the show’s closing moments, the children celebrate their teacher’s happiness as one comments “It’s a brand new world,” before they all chuckle at Mr. Ratburn’s embarrassing attempts to dance.

The notion that homosexuality is scandalous and demands censoring for younger audiences is not new, but the majority of Americans actually claim to support same-sex marriage, particularly since its federal legalization in 2015. A Gallup poll from May of last year indicates that as many as two-thirds of U.S. adults say that gay marriages should be legally valid and, although the numbers in the South are lower, a majority (55%) still support marriage equality. Nevertheless, APT explained its decision to not air Mr. Ratburn’s wedding as a matter of free choice: “Our broadcast would take away the choice of parents who feel it is inappropriate,” explained programming director Mike McKenzie.

Initially, Alabama was not alone in its decision: the Arkansas Educational Television Network similarly cited content concerns about the story, saying, “In realizing that many parents may not have been aware of the topics of the episode beforehand, we made the decision not to air it.” This sentiment reflects the position of Christian advocacy group One Million Moms, a division of the American Family Association which stated on its website, “Just because an issue may be legal or because some are choosing a lifestyle doesn’t make it morally correct. PBS Kids should stick to entertaining and providing family-friendly programming, instead of pushing an agenda.” AETN later reversed its decision and plans to air the episode at the end of May.

Censorship is (perhaps a bit ironically) a topic long-discussed in political philosophy: ever since Socrates was put to death for his “impious” words, the Western philosophical tradition has harbored a certain wariness about the notion of silencing discussion or debate prematurely. Towards the end of the second chapter of On Liberty, John Stuart Mill lists four reasons why he considers the unrestrained dissemination of ideas within society important (all other things being equal):

  1. Silenced opinions might turn out to be true,
  2. Only the “collision of adverse opinions” can root out the actual truth,
  3. People will only come to authentically believe a truth if that truth is honestly discussed, and
  4. Silencing dissent turns true opinions into irrational dogmas.

The only sort of censorship that Mill even hints at supporting is that of “vituperative language” against minority positions (in the interest of encouraging further discussion) – and, even then, he clarifies firstly that it should be a censorship of presentation, not content, and secondly that it would be accomplished via social stigma, not formal law. From Mill’s position, the decision to prevent the dissemination of a playful children’s program (which, it might be noted, never actually explicitly discusses Mr. Ratburn’s sexuality) seems difficult to defend.

Of course, one might then ask: does this mean that nothing can ever be censored? Should PBS follow the latest Arthur episode with a news report filled with graphic footage of the day’s disasters? This seems wrong for an entirely different set of reasons. Tactfulness and discerning the appropriate context within which a topic can be properly discussed is a matter of skill that does not come easy to everyone; we’ve all had experiences where someone has “overshared” personal information in professional meetings or referenced something disgusting over what had previously been a polite meal. The public television stations in Alabama and Arkansas held that a cartoon is an inappropriate setting for a gay marriage celebration, even one as subdued as Mr. Ratburn’s (the scene itself never actually shows the technical ceremony and neither Patrick nor Mr. Ratburn speak).

Two questions, then, remain – one universal to the matter of censorship and the other more specific to this case:

  1. Will people be harmed by the presentation in question?
  2. Should the silent indication that a character is heterosexual be treated differently than the silent indication that one is not?

Regarding (1), consider how security issues might well require that some information be kept quiet (about, for example, the travel plans of a state official) or how, for the sake of the mental stability (or even physical safety) of given members of an audience, some topics should be avoided or ignored – the so-called matter of “deplatforming,” as when white nationalist Richard Spencer decided to cancel his speaking tour last year after persistent protests. If the concerns of (1) are severe enough, the pro-censorship side can defend its position as a matter of safety, not ideological purity, thereby avoiding Mill’s concerns.

To answer the second question affirmatively is simply to express a bias against any relationship that is not heterosexual – something which might actually indirectly violate (1) and which is itself up for legal review by the SCOTUS with a ruling expected next year.

But it seems like the position of APT and AETN was that airing “Mr. Ratburn and the Special Someone” could potentially provoke harmful situations in homes that do not affirm same-sex marriages and would, as a consequence of the program, need to explain such things to young family members – that is, the stations based their decision on (1), not (2). Certainly, by calling it “agenda pushing” and labeling it as something other than “family-friendly programming,” One Million Moms explicitly thought the episode to be harmful in some way. If one works with a sufficiently broad definition of “harm,” then the uncomfortable tenor of some household conversations might well qualify – but, that’s ultimately no different than saying “not everyone is going to like this thing that I’m talking about” and unanimous approval is an impossibly high bar for permissibility. At this point, we seem perilously close to former Supreme Court Justice Potter’s famously ad hoc inability to describe ‘obscene speech’ – but his insistence that “I know it when I see it.”

PBS Kids spokesperson Maria Vera Whelan explained, “We believe it is important to represent the wide array of adults in the lives of children who look to PBS Kids every day” and Marc Brown, the creator of Arthur, told People magazine that “We all know people who are gay, who are trans, and it’s something that is socially acceptable. Why is there this discomfort that it takes a leap into our national media?” Particularly given the general support for same-sex marriage across the country, this discomfort is curious indeed. Same-sex relationships have been around far longer than the Obergefell v Hodges precedent and pretending otherwise only serves to perpetuate unnecessary ignorance.

After all, as one conservative pundit likes to frequently remind his fans, “Facts don’t care about your feelings.

The Ethics of the Masterpiece Cake Shop Decision

Photo of cakes in a display case

On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple.  The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision.  One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons.  The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

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Thomas S. Monson and the Politics of Obituaries

A portrait of Thomas S. Monson

Thomas S. Monson, President of The Church of Jesus Christ of Latter Day Saints, died on January 2 of this year. Monson led the LDS Church for almost a decade.  On January 3, The New York Times published an obituary for Monson that was not well received by many members of the church.  They felt that it was politically biased and did not paint the life and work of their much-loved leader in a positive light.  

Continue reading “Thomas S. Monson and the Politics of Obituaries”

Same-Sex Marriage: A Libertarian Perspective

The dust is just now beginning to settle on same-sex marriage in the United States, since the Supreme Court’s recent ruling in Obergefell v. Hodges established the unconstitutionality of state-level bans on such marriages. Though the law of the land has been established, all the legal and sociocultural effects remain to be seen (for example, can elected officials receive a religious exemption from performing certain job-related duties).
Is same-sex marriage a victory for freedom? It’s hard to say, and depends on who you ask. The ability to marry a partner of the same sex at the same time both expands the life possibilities for many citizens, while also bringing them into the fold of semi-coercive social norms regarding what a proper long-term romantic relationship and family look like. The Supreme Court let “love win,” but that love is now an increasingly institutionalized one.
To those who we could call “rule of law” libertarians, the most important consideration is fairness and impartiality under the law. This perspective comes down in favor of same-sex marriage for obvious reasons having to do with fairness and equal protection. End-the-state libertarians, on the other hand, strongly disapprove of government in marriage to begin with (on the grounds that it invites and normalizes the meddling of government in private affairs), and object to its expansion (even to same-sex couples) as more of a bad thing. Some in the LGBTQ community (who may or may not be libertarians or anarchists) share this concern, believing that marriage is a kind of well-meaning but ultimately pernicious encouragement towards the conventional domesticated lives they don’t actually want.
No principled libertarian objects to gay marriage for specifically moral reasons, having to do with “marriage” being reserved for the permanent bond between a man and a woman, for instance. Whether it is un-libertarian to have reservations about progressive views regarding the malleability of sexuality and family is a trickier question (certainly progressive, libertine, and conservative libertarians have basically always co-existed in libertarianism’s big tent).
Libertarians do reasonably worry that same-sex marriage will lead to the abridgment of other liberties, namely freedom of religion and freedoms of association, especially through commerce (see, for example, the fight over whether religious bakers must bake a wedding cake for a same-sex couple). However it is certainly nothing new in principle that some values in a plural society would necessarily become pitted against others. And it does not seem to be the goal of same-sex marriage proponents to use that position strategically for the purpose of dismantling other liberties, though the possibility is real and conspiracy theories abound.
Could there be other libertarianism-consistent reasons to oppose same-sex marriage? Not really. Allowing only straight marriage in order to “strengthen the nuclear family” runs afoul of the libertarian goal of making minimalist policy that is as value-neutral as possible. Even if same-sex marriage and parenting somehow did in fact weaken family life overall (it’s complicated, and family stability may matter more than gender), that would be a less important consideration for even most socially conservative libertarians than establishing state neutrality in marriage. In any case, there are relatively hands-off ways for the government to fight childhood poverty and provide opportunity to families, like properly-structured earned income tax credits and basic food support, that do not necessarily require discriminating on the basis of the biological or adoptive parents’ sexuality.
Similarly, slippery slope arguments against same-sex marriage don’t seem to be consistent with libertarianism. The threat of a slippery slope from same-sex marriage to multiple partner marriage (polygamy) is real. However, that move only seems like a pernicious slippery slope if one assumes that legally-sanctioned marriages must be between one man and one woman in the first place. Rule-of-law libertarians would likely reject that assumption.
In the end, it is not really up for debate – from a libertarian perspective – whether people of the same gender should be allowed to marry conditional on the fact that government is in the marriage business in the first place. Since marriage, in the civil-legal light, is about distributing the benefits and burdens of a particular form of citizenship, that form of citizenship should be in some strong sense available to all.
It’s a separate issue as to whether the government should require private businesses that cater to heterosexual weddings also to cater to same-sex weddings. The primary values at stake here are economic freedom versus non-discrimination, but the situation is much more narrow than the marriage question in general (which necessarily has broad and far-reaching consequences over many citizens’ whole lives). Whether a libertarian, or anyone, should trade some economic freedom in the attempted pursuit of non-discrimination is, however, a topic for another time.