It's Not About Liberals Refusing to Compromise: Respect for Marriage Act Edition

Today, the Respect for Marriage Act passed the House by a 267-157 vote. Forty seven Republicans voted in favor of the bill, dwarfed by the 157 who voted against (all nay votes came from Republicans).

Contrary to popular press coverage, this law does not "codify same-sex marriage". It appears to be far narrower, only ensuring that same-sex marriages performed in one state must be acknowledged in other states. As far as I can tell, it does not forbid states from barring same-sex marriages performed in their borders. In effect, what it "codifies" is not Obergefell but Windsor.

Which makes the overwhelming Republican opposition all the more striking.

This bill could not have been more modest in ambition. It does not simply secure the status quo. It secures a significant retreat from the status quo, at the expense of gay and lesbian Americans' basic civil rights. And even still, Republicans voted against it by more than a 3:1 margin, and its prospects for passing a Republican-led Senate filibuster look dim.

It has been suggested that if Democrats were just a little more moderate, a little less all-in, that Republicans would be willing to work with them. It is the liberals' insistence on going all-or-nothing that compels conservative opposition. Alas, conservatives just can't help themselves. Murc's law strikes again.

No. The Respect for Marriage Act was written to be about as timid and "moderate" as one could possibly imagine without simply running all the way back to Bowers v. Hardwick. And still, it probably won't pass, because Republicans remain overwhelmingly opposed to any degree of equality for gay and lesbian Americans.

That's their position. They're not hiding it. They're not reluctantly compelled to vote against these laws because of some mythic liberal overreach. That's their position. Stop pretending that Republicans don't believe what they clearly believe.

Having Your (Masterpiece) Cake and Eating It Too

The Supreme Court  has issued its long-anticipated decision in the Masterpiece Cake case (where a Christian baker refused to make a wedding cake for a same-sex couple). It ruled in favor of the baker by a 7-2 vote, but on exceedingly narrow grounds (I'll get to those in a moment) that provide virtually no guidance to resolving similar cases in the future. On the other hand, given the way oral argument went, I'd say we might have even dodged a bullet.

Basically, Justice Kennedy's majority opinion concluded that certain statements by the Colorado Civil Rights Commission (which concluded that the baker had discriminated against the couple in violation of Colorado law) indicated that they held anti-religious bias. This bias tainted the proceedings in an unconstitutional manner, and hence the ruling had to be set aside.

On that point, there are two comments worth making. First, in the abstract I wholly agree that religious hostility provides a sufficient basis for invalidating a government action even in cases where -- absent said hostility -- the substantive decision might well be constitutional. If a commissioner in a case like this said "I'll be damned if I'm going to rule in favor of some towel-wearing heathen," that to me is an obvious constitutional violation on its own. So to the extent Masterpiece Cake clarifies that point of law, I have no quarrel.

Second, as applied to the facts of this case I think the evidence of anti-religious animus on the part of the Commission is pretty thin. Certainly, it is microscopic compared to the evidence of anti-religious animus in the travel ban case -- though who knows if that will matter. But if the upshot of this case is that governmental decision-makers need to step more lightly around grandstanding declarations when dealing with sensitive areas of discrimination and religious freedom, that's not the worst thing in the world.

In any event, because the Court's decision was based on a finding of religious animus in the administrative proceedings, Justice Kennedy specifically stated that the Court was making no proclamation on how a case with even identical facts (but absent the biased state-level decisionmaker) should be decided. Hence why we get no real guidance on how to handle similar disputes going forward. But the majority opinion actually contains a lot of dictum emphasizing that there are perfectly legitimate anti-discrimination considerations the state has here and can legitimately impose (in a neutral, generally-applicable fashion) onto religious objectors. So to some extent, the tea-leaf reading off this case is considerably better than one might think.

But while much of the attention has focused on the religious freedom aspects of the case, it's the compelled speech issue that I think will be more nettlesome going forward. The Court declined to wade into that issue in this case, both because it was resting on the narrow religious animus ground and because the relevant parts of the record in this case were surprisingly opaque (Justice Thomas made a game effort to argue that the issue was ripe in this case, but I'm unconvinced).

When does selling a cake become a form of (compelled) expression by the baker? On the one hand, simply selling an "off-the-rack" cake should not be viewed as compelled expression by the seller that they approve of the buyer or what the buyer plans to do with the cake (a half-century old Supreme Court case quite quickly dispensed with a claim that a barbeque vendor could circumvent anti-racism laws compelling him to serve Black customers because doing so would communicate the message that he believes in racial equality, in violation of his religious beliefs). On the far other side, consider cake orders with specific messages to be engraved like "Homosexuality is a detestable sin" (the Colorado Commission received complaints when several bakers refused to bake cakes with that message, and dismissed them). There, the compelled speech claim seems stronger. Presumably, that would have to hold in cases where the text was something like "God loves gay people same as straight" -- it's expression, and if someone genuinely doesn't want to express that message, I don't think the government can compel him to do it.

There are any number of cases in the middle. I don't think a custom-cake order necessarily becomes a case of expression (e.g., a cake with no text but where the purchaser wants a specific design) -- but what if it is specifically requested to have rainbow coloration? Or consider more anodyne messages like "Congratulations Jim and Steve". Such cases are going to reflect some difficult judgments, and we still have only dim contours on what the right legal guidelines are.

As for the other opinions: Justice Gorsuch's was predictably terrible. It rests primarily on the somewhat odd belief that there is a distinct product called a "same-sex wedding cake" that is different in-kind from a "wedding cake" (is it something in the food coloring?). Consequently, Justice Gorsuch can deny that there is any discrimination occurring against same-sex couples because the baker presumably would decline to sell both straight and gay customers a "same-sex wedding cake". This is the same logic through which gay marriage bans were not forms of anti-gay discrimination because gay and straight individuals could not perform a gay marriage, and it is eviscerated both in Justice Kagan's concurrence and Justice Ginsburg's dissent. As Justice Kagan aptly put it: "A vendor can choose the products he sells, but not the customers he serves—no matter the reason." A wedding cake is a wedding cake -- it doesn't magically become a different product because of the sexual orientation of the purchaser.

Indeed, one thing that this case made clear for me is that the category "gay marriage" may have outlived its usefulness. In American law, there are no longer "gay marriages" as a qualitatively distinct entity. There are "marriages", which are sometimes entered into by straight couples and sometimes by gay couples. Of course, people in private life are free to maintain the distinction, and sometimes those private views can carry weight (the obvious case being the right of a religious officiant not to solemnize a gay wedding). But these should be seen as areas where we're departing from the general neutrality of the law and accordingly need justification; the default understanding should be weddings are weddings are weddings.

Pluralistic Ignorance: Gay Marriage, Racism, Israel, and Anti-Semitism

I vaguely remember the first time I thought about gay marriage as a political issue. I was either in middle school or early high school (so around the year 2000). As I recall it, my main thoughts on the matter were:

1. I couldn't think of any particular reason to oppose it; and
2. Supporting gay marriage was, descriptively, a fringe position that was outside the bounds of mainstream political discourse.

Being 14 years old or so, the second point was enough to at least keep me quiet on the matter. Who wants to be a non-serious outsider?

A few years later, of course, things had changed. Well before Obergefell, gay marriage crossed over into being at least a plausible political position -- one that people in my circle could openly avow without embarrassment or fears of being shunned or excluded. And once that happened, reason #1 was left alone and asserted itself without trouble. I never looked back.

I suspect that many people experienced an evolution like mine. Most people are reticent to radically break from their social neighbors -- not necessarily something to be proud of, to be sure, but descriptively accurate. And it's not simple bandwagoning -- the privately held position is genuine, but it just doesn't manifest until we are confident that expressing the position won't cause us to be expelled from our relevant social groups. Of course, the "relevant social group" would differ from person to person. The sorts of signals which demonstrate that a position is no longer fringe in legal academic circles, differ from those which provide the same message to judicial elites, versus to Democrats, versus to Mississippians. Nonetheless, I think a story of this sort accounts for the astonishingly rapid shift in attitudes about gay marriage over the course of only a few years. From 2001 to 2015, support for gay marriage gained a whopping 38 points (from net-negative 22% to net-positive 16%).

One way of formalizing the story I just told is through the lens of pluralistic ignorance. Pluralistic ignorance exists when people may personally reject a given social norm but sharply overestimate the degree to which their fellows support it. So I personally have no problem with gay marriage, but I assume all my neighbors do (and many of them, privately, are thinking the exact same thing). Since people frequently won't articulate opinions they believe are unpopular within their peer group, this can result in the maintenance of archaic social norms even when many people privately would be fine with abandoning them. It also explains why, under the right circumstances, these norms can disintegrate with astounding rapidity. If some peer members do articulate the supposedly taboo "dissident" opinion and nothing bad happens to them, then it opens the door for everyone else to articulate their own true views.

 The example I just used is a happy one -- people rapidly changing their minds to favor gay equality. But pluralistic ignorance does not always dam up progressive social reform. A few months ago, I told a story about racism and the Donald Trump campaign that moves to a very similar beat. I hypothesized that a significant swath of Americans had learned to cover up their racial prejudices under the belief that such views would be seen as unacceptable by their fellows. If they expressed them, they would be ostracized and shunned (perhaps by the ever-mythic "PC police"). And then Donald Trump came along and said all of the outrageous, biased, bigoted, racist things these covert racists had been yearning to yell out themselves.

...And nothing happened. Sure, the media fulminated and Trump's opponents cried foul. But it didn't sink Trump's campaign. If anything, it strengthened it. There certainly was no social banishment, no exile to the fringe corners of outcasts and misfits. Instead, the racists found that there were in fact plenty of people who believed the same things they did, that they held a non-trivial swath of public opinion and political power. And once they realized that, the dam broke. All that suppressed racial ressentiment came pouring out in full force and fury, shocking even conservative political pundits. The outlook which had been the joke, the province of fringe lunatics, suddenly was looking like the dominant force in one half of America's two-party system.

This pluralistic ignorance story may apply to views on Israel as well. CNN may have overstated things when it declared that "Bernie Sanders Smashed the Israel Status Quo" -- as J.J. Goldberg and Gershom Gorenberg, among others, has pointedly observed, Bernie lies well within a perfectly recognizable strand of contemporary Israel advocacy that has never been troubled by "criticism of Israel" -- but it was hardly entirely wrong either. In academia, the rise of BDS is perhaps a more clear demonstration of the effect. It's less about whether they win or lose, and more about signaling that positions on Israel hitherto regarding as extreme -- challenging its entire existence, declaring the entire Jewish national project to be a form of illicit domination -- are not in fact fringe ones. Anti-Israel activists like to tell a story about how marginalized and muzzled they are, but in many ways they're experiencing the exact opposite -- they can give their blood libel spiel, spout vicious anti-Semitic slurs, even falsify their data, and they'll still have a loud and raucous band of petition-signers ready to have their backs. Just like the formerly covert racist who attends the Trump rally and discovers that he was not, in fact, exiled to become a complete social outcast, the extreme anti-Israel activists have discovered that there is a place for them in mainstream discourse. And that means that all those who were privately outraged that Jews dared have a state to call their own but assumed such thoughts could not be expressed aloud, now have an accepted public outlet for their fury. Ressentiment rides again.

And what of outright anti-Semitism (which, of course, is distinct from hostile attitudes towards Israel but certainly often comes clothed in anti-Israel garb)? While it is standard-issue nowadays to claim that anti-Semitism is over, that Jews have officially won the anti-discrimination game (look at how well we poll!), there is a potential pluralistic ignorance story to be told here as well. If it is widely assumed that it's "not okay" to hate on the Jews, then most people will not admit to doing so. The question is -- what happens if that consensus is broken? If people express anti-Semitic attitudes, is it viewed as unacceptable? Does it shatter their reputation, the way it is so often assumed to do?

Right now, things stand on uncertain ground. A Stanford student leader says it is important to consider whether Jews really do control the banks and media -- but then again, the reaction by his peers was clear and unambiguous (yet, on the other other hand, will there be any reputation lost for the Stanford professor who wants people to get their news from blood libel advocates?). An Oberlin professor posts a slew of anti-Semitic conspiracy theories, and the university administration seemed barely able to muster up a response. But then a majority of Oberlin faculty did sign a letter denouncing them. But a significant minority of the faculty pointedly refused to do so, expressing "outrage[] at the irresponsible hostility drummed up against [Karega] as a scapegoated target." And round and round we go.

Pluralistic ignorance is by its nature a very speculative story to tell (at least projecting forward). And it depends on the peer groups one inhabits -- liberal college activist groups or conservative white nationalist communities are not every community (and it's worth noting that even in those communities pluralistic ignorance might manifest in its own way -- for example, progressive college students might feel compelled to sign on to far harsher condemnations of Israel than they personally feel are warranted because they jointly assume that is the norm position among progressive college students). But it is one reason I don't think one can rely on the stability of a "norm" against racism or anti-Semitism. It's possible it reflects genuine egalitarian commitments, free from misconceived notions about the attitudes of their peers. But it's possible it doesn't. And if not, the constructed edifice of respect and equality can all come tumbling down very, very quickly.

Compare me to Jesus or GTFO

Rep. Steve King (R-IA): Kentucky county clerk Kim Davis is a latter-day Rosa Parks.

Kim Davis: Don't compare me to that layabout. She "had it easy."

[Note that I'm having trouble verifying whether the latter letter is genuine. Steve King, though, is absolutely being his usual self].

I'm a Celebrity! Roundup

I've been busy basking in the glow of my status as a big magazine contributor. That means that I haven't had as much time to do regular blogging as I'd like, and that means it's time for a roundup.

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* Kim Davis, the Kentucky clerk who refuses to issue marriage licenses to gay couples and has defied court orders requiring her to fulfill her official duties, has been jailed for contempt of court. Will any Republican candidate take a stand for the rule of law here? I can actually respect -- to some degree -- someone whose deeply-felt personal beliefs require them to abstain from certain public activities. But the right choice in such a circumstance is to resign from office, not to demand a public salary while obstructing the law.

* The ADL, incidentally, has just issued a statement that gets this issue 100% right. Good on them.

* Former Shin Bet chief Yuval Diskin has a great column up on the threat post by extremist Jewish settlers. Unlike him, though, I'd rather we not "wait for it to get worse so that it might get better."

* Wouldn't it be hilarious if, after all the sound and fury on the American side, it was Iran's parliament that rejected the deal? Actually, that outcome would probably be the single best thing that could happen for the anti-deal conservatives here in America.

* Dan Drezner urges that Political Science not emulate Economics. Hear, hear (says the political theorist)!

* Local news, but semi-important: Rep. John Kline (R-MN) will not seek reelection. Kline was my representative during college (he represents the area south of the Twin Cities), and his district is trending towards the Democrats. But Kline himself was pretty well-entrenched, so his departure is a big boost to Democratic pickup chances.

* Oh, one more: Virginia Postrel on what's actually driving stressed over-achievers at elite universities. It's not crass desire for fame or materialism, and it's not pushy caricatured Tiger Parents.

* Fine, two more. Shorter PJ Media: If Hillary Clinton is elected, conservatives will break every law that they possibly can and possibly launched an armed revolution. This reflects poorly on Hillary Clinton.

Obergefell Solidifies the Nascent Alliance Between Obama and the Boko Haram! I am not a Crank!

I stated a few days ago my belief that Obergefell will be a Lawrence and not a Roe. By that I mean that I believe Obergefell effectively signals the end of gay marriage being a significant site of social controversy in the United States -- we will see a few months of sputtered opposition (ranging in tone from "impotent fury" to "half-hearted identity performance"), and then it will just be accepted.

But we still have time to enjoy the death rattles. Check, for example, the Federalist's 15-point argument against gay marriage. There are a lot of lovely entries: Gay marriage leads to human trafficking, gay marriage leads to licensing parents, gay marriage "promises a monolithic society of conformity" (what?), but by far my favorite has to be lucky #13:

The United States is already punishing countries and threatening to cut off aid if they don’t accept the LGBT agenda. This is especially true of developing countries, in which the whole idea is foreign to over 95 percent of the population. According to a report by Rep. Steve Stockman, corroborated by a Pentagon official, the administration held back critical intelligence from Nigeria which would have aided in locating girls kidnapped by Boko Haram. The new National Security Strategy recently released by the White House makes clear that the LGBT agenda is a global agenda. And it looks a lot like cultural imperialism of the worst kind.

I hope we've all learned a valuable lesson about listening to Steve Stockman. Anyway, it's off to wave a Boko Haram ISIS dildo-covered flag at a pride parade!

History Will Be Heard

It's an interesting fact about history that nobody cares about process. If, say, the Constitution supplanted the Articles of Confederation while completely ignoring the latter's provision that it could only be amended via unanimous consent, that fact is lost on pretty much everyone. Likewise the "ratification" of the Reconstruction Amendments by southern states -- done at gunpoint following the civil war -- or for that matter the technical question about whether states had a right to secede from the union in the first place. There were many reputable legalistic critics of Brown v. Board when it came down in 1954, but today the importance of abolishing legal segregation completely overshadows any question over whether the decision was "technically" correct. This isn't to say that results are all that matters -- it is a good thing that we pay attention to process. We do care about it, and we're right to care about it. But it is a concern that fades very quickly once the decision has been made. For all the energy it takes up at the time, attention to process is not something that makes it into our historical memories.

It's interesting to think about this in terms of today's 5-4 decision striking down gay marriage bans. The dissenters -- Chief Justice Roberts and Justices Scalia, Thomas, and Alito -- all have perfectly cohesive legalistic arguments on their side (though I'm ultimately not persuaded by any of them). But I am curious how they think history will view them. After the Court struck down parts of the Defense of Marriage Act, the Onion declared "Scalia, Thomas, Roberts, Alito Suddenly Realize They Will Be Villains In Oscar-Winning Movie One Day." That's almost certainly true. Obergefell, I predict, will be a Lawrence and not a Roe. Public opposition to same-sex marriage will rapidly disappear, and in another generation this decision will be seen as an obvious forward step for the cause of justice; the dissenters clearly retrograde and in the wrong. And I think each of the dissenters know that, and thus know that history will not treat them kindly. They are staring history down.

I say this neither as a form of condemnation nor laudation. It's just an interesting question. Is that a conscious choice? Are they okay with the sacrifice? What is it that motivates them to make it, knowing that there is no vindication waiting for them at the end? It is one thing, after all, to stand against society secure in the knowledge that "history will be heard." It is another to do so while knowing that history, too, will pile on yet further; consigning even the exculpatory reasons for your dissent to obscurity and irrelevancy.

Post-Grading Roundup: 5/13/15

Exams are graded and turned in. I've yet to have an angry mob of students assail my office door (or email inbox). And my browser is starting to be overrun. So let's clear some debris, shall we?

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* The always-provocative Northwestern Law Profesor Eugene Kontorovich explores how the international community and international press has reacted to other blockades in situations analogous to the Israel/Gaza conflict (e.g., Georgia/Abkhazia, Sri Lanka/Tamil, and Saudi Arabia/Yemen). In all cases there seem to be few claims that the blockades are illegal (indeed, there seem to be few instances where people pay attention at all).

* Eugene Volokh has the rundown on a really bizarre story out of Canada, where some reports have high government officials threatening prosecution of anti-Israel BDS activists (on "hate crimes" charges), while other officials dismiss those reports as "conspiracy theories." It's unclear what is going on, but if I had to guess the government is not planning to prosecute anyone for mere advocacy of a boycott, but might be indicating its belief that actually carrying out such a boycott would constitute illegal national origin discrimination. But that's really a wild guess on my part.

* Speaking of national origin discrimination and boycotts, a proposed BDS resolution at an Ithaca co-op was rejected after co-op attorney's determined it would put them at risk of liability under New York human rights laws (which prohibit boycotts based on national origin). This interests me, since I've always though the BDS movement was vulnerable to this point of attack, but I hadn't seen it get much traction up until this point. And to be clear: the attorneys are not saying adopting a BDS resolution is illegal, only that it raises a sufficiently colorable risk such that it might (for example) affect their insurance rates. That seems pretty incontestably true.

* A South Africa columnist sharply condemns those rallying around a student leader who expressed admiration for Hitler (the defenders, needless to say, are accusing the student's administrative critics of being "puppets" for the shadowy Jewish conspiracy supposedly funding the university). I'm of two minds on this: On the one hand, the column really is well done and unapologetic in its condemnation of this form of anti-Semitism, even when it (as always) tries to cloak itself as mere "anti-Zionism" (and the author makes abundantly clear that he agrees with the basics of the anti-Zionist position). On the other hand, I feel like if I'm getting excited that a columnist is able to unapologetically condemn praising Hitler, I might be setting the bar too low.

* My latest draft paper is up on SSRN. It's titled The Siren Song of Strict Scrutiny, and explains why the failure of sexual orientation to be elevated to the ranks of a "suspect classification" is actually a very good thing for the gay rights' movement.

8th Circuit Releases Gay Marriage Panel

It won't really matter, because the Supreme Court will have the last word soon enough, but the 8th Circuit has released its panel assignment for the pending challenges to gay marriage bans in Nebraska, Missouri, Arkansas, and North Dakota. The trio hearing the case will be Judges Roger Wollman, Lavenski Smith, and Duane Benton.

The best thing you can say about this panel, if you favor same-sex marriage rights, is that it isn't the worse panel one could draw from the 8th Circuit. Judge Gruender isn't on it, for instance, nor is Judge Colloton or Chief Judge Riley. That said, I think it is very unlikely that this panel will produce anything but a 3-0 decision upholding the bans (unless the Supreme Court instructs otherwise).

All three judges are Republican appointees -- not surprising, since the GOP has an 8-3 advantage amongst active judges. Judge Wollman, a Reagan appointee, is probably the most moderate of the three, while Judge Benton (G.W. Bush) is the most conservative. Judge Smith (G.W. Bush) is in the middle, and has shown a bit of an iconoclastic in discrimination cases in the past. That said, Judge Smith is rumored to have his eye on a Supreme Court nomination if a seat opens up during a Republican administration. And in any event, it would take a more than a bit of iconoclasm for Judge Smith to side with the plaintiffs here, given his voting record and general social conservatism. Basically, while I can imagine a world in which Judge Wollman and/or Smith voted to strike down gay marriage bans, neither seems particularly likely to do so and both of them doing it at the same time seems like a real stretch.

So the 8th Circuit will likely join the minority camp on this issue, and we can only hope that the Supreme Court will correct the error.

Sunday Roundup: Jan. 25, 2015

Just because I'm a big Jewish media star doesn't mean that I don't have time for the little people my loyal readers. Here are some stories I've found interesting that have crossed my browser.

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A powerful story about a lesbian couple in Oklahoma planning their (suddenly legalized) wedding.

I honestly have no idea how someone who presumably identifies as a progressive can write this without it being immediately, blaring, obvious that it is identical to conservative mockery/dismissal of racism claims. Someone get the author a copy of Darren Lenard Hutchinson's Racial Exhaustion, stat.

Interesting piece (to me, at least!) by David Roberts on the proposed Exelon/Pepco merger.

An Israeli Druze student was beaten by a Jewish mob who overheard him speaking Arabic. The student, who recently finished his service in the IDF, had been posted at the Presidential Residence and received a call of support from Israeli President Reuven Rivlin.

As much as "WhatAboutTheMenz" annoys me, no Ruby Tuesday's, you can't just restrict posted bartender positions to women.

Moral Credentialing and Supreme Court Decisions

Noah Feldman has a Bloomberg column up provcatively titled "Obamacare May Die So Gay Marriage Survives". The idea behind it is that conservatives on the Supreme Court will -- unconsciously -- trade a "liberal" result in the seemingly-inevitable gay marriage appeal for a "conservative" vote in the latest Obamacare case. The basic idea is that by producing a high-profile liberal decision (in the gay marriage context), the conservatives can safely deliver a major conservative ruling without sacrificing its legitimacy, or the Justices' own conceptions of themselves as neutral arbiters whose decisions are governed by law rather than politics.

Dale Carpenter is not amused by this line of inquiry.

One can fully accept that political allegiances and the Supreme Court’s own desire to preserve the perception of its legitimacy, which is itself a form of politics, can influence its decisions. But Feldman’s approach calls on us to examine the deep and hidden psychological motivations of the Justices–which he agrees they would deny publicly and privately–without even considering whether there are perfectly reasonable and defensible legal grounds for the way they may rule in a particular case.

I am sympathetic to Carpenter's concerns. But I think some of them may be, if not dispelled, at least allayed if we look into the psychological literature which seems to underlie Feldman's argument (Feldman does not cite this literature, which probably doesn't help matters).

The phenomenon Feldman describes, to my eyes, seems most similar to the idea of "moral credentialing." I discuss this concept a bit in Sticky Slopes, but the basic idea is pretty simple: People have a strong self-conception of themselves as fair-minded and egalitarian; values which genuinely matter to them. But they also are motivated, often subconsciously, to act in unequal and unfair manners (e.g., racial or sexual favoritism). The first element often acts to check the second; when evaluating job applicants, for example, favoring a man over a woman would threaten the egalitarian self-concept. However, if a person has had the opportunity to demonstrate their egalitarian bona fides, that act provides a "credit" which allows them to engage in discrimination without threatening their self-image. Call it the "how can I be racist, I donate to inner-city charities!" effect. Having a salient egalitarian act one can point to makes it harder for observers (or the self) to infer that one makes biased decisions; paradoxically, this makes people more likely to indulge in precisely that sort of bias.

One can easily apply this same logic to judges, who have private "political" motivations regarding case outcomes that exist alongside a genuine commitment to fair and neutral arbitration that rejects the validity of relying on such preferences. For this reason, judges are undoubtedly quite sensitive when their legal rulings "just happen" to match their policy preferences -- it raises the specter that their decisions are actually motivated by politics rather than law. An easy way to dispel those fears is to point to another case which doesn't fit that mold. "If I were the sort of judge who voted on political grounds, how do you explain my vote in X v. Y?" Having this credit, the judge can effectively discount the possibility that he or she is influenced by such political concerns -- and accordingly will be less like to check against the subtle impact such desires have on his or her reasoning. I'll admit to having a similar suspicion regarding the latest health care case, albeit linked not to a gay marriage ruling but to Chief Justice Roberts' vote in the original Obamacare decision. That vote provides the Chief with a "credit" demonstrating that his votes on this subject are law-based rather than motivated by any antipathy to the Affordable Care Act or Obama administration. Consequently, it would be much harder to assert that a subsequent vote against the federal subsidies is motivated by bias -- after all; if he was the sort of judge that would be swayed by such concerns, why wouldn't he have simply struck down the law tout court?

Returning to Carpenter's objections, he complains that Feldman does not account for entirely legitimate, law-based reasons one might vote "conservative" in the health care case and "liberal" in the gay marriage cases. But moral credentialing, like all forms of motivated cognition, operates in the space of ambiguity -- it wouldn't work unless there were credible neutral reasons supporting one's (politically) preferred outcome. No moral credit of racial egalitarianism will enable one to justify hiring a drunk White high school dropout over a Black valedictorian. Rather, moral credentialing comes into play when there are facially legitimate reasons for a variety of different actions: a job opening sought by both a qualified White and Black candidate, for instance, where one could legitimately make a case for either. And so it is with law: whatever credit one receives for crossing "party lines" on a high-profile case -- demonstrating one's neutrality as a judge -- can conceptually only be redeemed in a case where reasonable minds might differ.

It is for this reason that Carpenter is partially correct regarding another one of his arguments -- that the psychological motivation forwarded here is "non-falsifiable." He's right, at least at the level of explaining individual cases. If the male and female candidates for a job are both equally qualified -- if there is a solid, credible case for either party -- non-prejudiced decisionmakers should still hire the man roughly half of the time. Any individual decision to hire a man may be entirely neutral and unaffected by the existence of a prior "credit." Where the effects of moral credentialing start to emerge is when we aggregate cases and see that the percentage of women hired plummets amongst actors who have in their possession a salient anti-sexism credential.

And this hypothesis probably could be put to the test with respect to judicial behavior. Are judges who break with their "side" in a high-profile case more likely to indulge in seemingly partisan or political voting in the aftermath? It seems that, measured across a large number of judicial decisions, this is a hypothesis that could be confirmed or falsified. Someone should get on that.

Judge Kopf Calls It

Though put in the words of a character, I think we can fairly ascribe this as Judge Kopf's prediction regarding how the Supreme Court will handle the gay marriage cases:

Scalia, your former boss, will go ape shit, Kennedy will write something inane, and the liberals will join him and reverse you.

The real question is what cases that line wouldn't describe?

The Shadow of Rule 11 Sanctions

In Arizona, the Republican attorney general has declined to appeal a district court decision striking down the state's gay marriage ban. His reason immediately jumped out at me -- he claimed there was a risk of Rule 11 sanctions (for unnecessarily delaying the conclusion of litigation), given that the 9th Circuit has already rejected identical appeals and the Supreme Court recently denied cert on the same.

This jumped out at me because I have been playing around with the idea of courts sanctioning states for defending patently unconstitutional legislation. The idea is a sort of a check against grandstanding -- it's an expressive snapback by judges against legislators who pass laws that obviously, on face, violate the Constitution.

Now, no matter what one thinks of gay marriage, that is not this case. I think gay marriage bans are unconstitutional, but not obviously so. There are perfectly reasonable, good faith arguments to the contrary. My thoughts went more along the lines of laws banning the construction of Mosques. In any event, while I agree that an appeal by Arizona would prove to be futile, I am highly doubtful that any court would have imposed sanctions on the Arizona AG for filing it. And even under the Attorney General's view, sanctions wouldn't be imposed because his legal argument was intrinsically frivolous, but because it had functionally already been resolved by the relevant courts. Is that a distinction without a difference, though? Isn't a "frivolous" argument simply one which is absolutely, positively, obviously guaranteed to lose?

The point is, regardless of whether this decision is directly on point; I've been on the eye for any indication that Rule 11 sanctions might be factor in constitutional litigation. Even if the context is different, the fact that a state Attorney General viewed such sanctions as a legitimate possibility is very interesting on its own terms.

UPDATE: "Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?" If I do write this article, Howard Wasserman just became my epigraph.

Their Strongest Light

On occasion of the 7th Circuit opinion in Baskin v. Bogan striking down gay marriage bans, and this afternoon's 9th Circuit arguments on the same question, I got to thinking about the types of arguments were seeing in court by defenders of such bans. Other than generic arguments favoring deference to democratic decision-making -- which could be made about any law -- most sophisticated opponents of gay marriage that I know tend to feel that their strongest argument is a sort of souped-up complimentarianism argument advanced by Robert George and his cohorts Sherif Girgis and Ryan Anderson. I've never found much to that argument -- as far as I can tell, it asks the question "how many moral philosophers does it take to spot a naturalistic fallacy" and answers it with "more than three" -- but if you talk to people who oppose gay marriage but want very much to disassociate themselves from crackpots, that's the argument they make.

The reason I bring this up is because that argument really hasn't made much of an appearance, as far as I can see, in the legal briefs filed by the states defending the bans. While friendly amici have raised their claims, I have found only two merits brief that raises this argument: the defendants' motion for summary judgment in Kitchen v. Herbert (D. Utah), and the appellants' brief in DeLeon v. Perry (5th Circuit, challenging Texas' ban). Courts don't feel compelled to respond -- a quick Lexis search did not find a single gay marriage case where George's work was cited in the actual opinion, and indeed the brief in DeLeon spends some time complaining that the district court did not "read some of the many reasoned defenses of traditional marriage--none of which the court so much as acknowledged (let alone refuted)."

Of course this was a quick read, and it's quite possible more states are making this argument (but just not attributing it to George or his colleagues). Nonetheless, and DeLeon notwithstanding, it seems to be the case that the argument that gay marriage bans are justified because marriage inherently and naturally must only encompass a particular type of complimentary bodily union between a man and a woman is not a major part of the defense proffered by the states. Instead, we're seeing contentions that seem to actively degrade the institution, such as Indiana's assertion that marriage is a necessary prison for heterosexual men who would otherwise recklessly impregnate women and flee to their next one-night stand.

Why is this? One answer is that the states have bad lawyers. But that seems unlikely; and in any event this argument is being spoon-fed to them by very well-connected and vocal amici -- it seems odd that they wouldn't jump on it. Another is that they have such confidence in their other arguments that they don't want to resort to more abstract philosophizing -- a possibility that would be more realistic if the arguments they are raising, such as the "prison for heterosexuals" claim, were not being laughed out of court. A third reason is that, whatever its theoretical merits, the argument does not track well to current legal doctrine. It is seemingly dependent on essentialist notions of sex roles, and courts will immediately recognize the tension between adopting such an argument and adhering to the requirements of the equal protection clause as applied to gender. A fourth argument is that the lawyers for the states find the argument of George and his colleagues no more credible than I do -- relying on a bevy of logical leaps and belied by public experience with gay marriage.

The fact that the courts have not felt at all compelled to respond to George's contention lends some credence to hypotheses three and four. Either they don't find it to have any legal purchase, or they don't find it to make any particularly significant normative points, or both. A third option, obviously, is that they are consciously ducking the strongest case that could be made in favor of gay marriage bans so as to artificially buttress their own position. Maybe, but it seems unlikely -- Judge Posner is hardly one to shy from a fight, and it seems to me that if he thought there was any credibility to the complimentarian argument, he'd have addressed it.

Interpretations are what they are, but the fact is that what conservatives take to be their best argument against gay marriage simply isn't getting any traction. It's not capturing the imagination of lawyers, it's not capturing the imagination of judges, and it's not capturing the imagination of the public. As I noted in my own appraisal of George's work, the main goal of his argument is probably not to persuade, but to keep the issue in the realm of "reasonable disagreement", so that 50 years from now, we won't utterly condemn anyone who adhered to a position that it is becoming more and more evident every day is utterly indefensible. The failure of it to gain purchase indicates that it will not succeed even in this more modest effort.

UPDATE: I watched the 9th Circuit oral arguments today in the Idaho gay marraige case. It in some ways verified the above -- the attorney for the state of Idaho started to gesture in the direction of the complimentarian argument, but quickly backed away when pressed; instead, he relied on a theory of "child bonding rights" which allegedly required them to have both their mother and father in their life (coupled with a claim that gay marriage "sends a message" that fathers and/or mothers don't matter and thus will degrade heterosexual marriage). It was obvious he was drawing dead (the panel was Reinhardt, Berzon, and Gould -- one couldn't ask for a better one if you favor gay rights), and it's always interesting to watch someone gamely make their argument when they know they're doomed.

It Is What It Is

New poll data indicates that 50% of Americans believe that the Constitution protects the right to gay marriage (41% disagree). This is of course good news for supporters of gay marriage. I am curious exactly what this figure means, though. Specifically, when non-lawyers hear the question, do they hear "what is the current state of the law with respect to gay marriage being a right under the equal protection clause?" or do they hear "if you were a judge, how would you decide a case arguing that gay marriage is a right under the equal protection clause?"

The question text reads:

Do you think that part of the Constitution providing Americans with equal protection under the law does or does not give gays and lesbians the equal right to marry?

That seems to at least lean toward the latter interpretation (how would you rule as a judge). But of course, that raises the question of how non-legally trained Americans come to a conclusion on that sort of question -- at least assuming that respondents at least profess to believe that there is a difference between one's moral intuitions and legally correct answers. Whether such a distinction actually exists or not, my understanding is there is substantial poll data which indicates that Americans believe this to be true and believe it to be important, so then the question is how they reconcile that belief with coming to legal conclusions when they know they don't have the requisite legal knowledge to "properly" make them.

Blankenhorn Defects on Gay Marriage

Over the past decade, polling on same-sex marriage has seen a dramatic swing. Once a marginal, even fringe position, support for gay marriage has become a mainstream, perhaps even a majority position, The most recent poll I've seen has a plurality in favor (42/40), and I have little doubt that given another few years, support for marriage equality will consistently be the majority position.

Implicit in that shift is that people who used to oppose gay marriage now support it. Many of those are, of course, ordinary citizens who have realized that marriage equality is just the latest permutation of the American credo demanding equal dignity, rights, and respect for all. Some are high profile political and social figures whose shifts have made major headlines (ranging from Barack Obama to Colin Powell to Bill Clinton).

But the announcement by David Blankenhorn (H/T: Dale Carpenter) that he now supports gay marriage may be, in a sense, bigger than all of these. Blankenhorn, obviously, does not have the profile of the President of the United States. But Blankenhorn's career as a public intellectual has been as one of the most prominent opponents of the same-sex marriage. He represents possibly the highest profile defector from that position to the side of equality.

Blankenhorn's reasons for his shift are interesting. He does not recant his belief that there is a positive good in children being raised by their biological parents. But he acknowledges that outside a few lonely voices writing newspaper editorials, the campaign against same-sex marriage has not been characterized by concerns about parenting, but about dehumanizing gays and lesbians. And perhaps even more importantly, from his vantage point, opposing gay marriage has had no discernible impact on any of the tangible ways Blankenhorn had hoped it would strengthen the institution of marriage as whole. His belief that stopping gay marriage would strengthen marriage has been falsified, and so he no longer holds the belief. That is an all-too-rare case of intellectual integrity, and it is worth applauding.

In essence, Blankenhorn now concedes that whatever trivial impacts opposing gay marriage has on strengthening heterosexual marriage (and he, like I, am unconvinced these impacts are real), they are vastly outweighed by the enduring dignitary and de jure harm such bars place upon gays and lesbians. He's right, and his transition represents the crumbling of credible intellectual opposition to the project of gay equality. It's just not that complicated.

But It's a Proud, Family-Owned Brothel

PPP: Sixty-six percent of Nevada Republicans support legalized brothels (same percentage as Democrats), but only 20% of them support same-sex marriage. Now that's some family values!

Jews Are Liberal, Part Eleventy Billion

A new poll finds, once again, that Jews harbor opinions well to the left of the American mainstream on a host of issues. Nearly 70% favor gay marriage. Nearly 90% favor legal abortion in most cases.

And while it is sometimes asserted that Jewish social liberalism is balanced by economic moderation, that's only true as a matter of degree. Two-thirds support tax increases on persons making over $200,000/year, 62% feel that banks and financial institutions pose a "major threat", and 61% say they tend to favor unions over corporations when they hear about a strike (to be fair, when the corporations are run by guys like this, it's easy to root against them).

Oh, and on Israel/Palestine? No surprises there either. Jews tend to think Israel wants peace and Palestinians do not. But perhaps the most striking finding was their opinion regarding a settlement freeze. Though opinions were divided, a plurality of 40% believes that the Israel government should freeze settlements, versus only 22% opposed (39% are unsure).

Same-Sex Marriage as a Make-Up Call

As you may have heard, the 1st Circuit in an opinion by Judge Boudin just struck down Section 3 of the Defense of Marriage Act (defining marriage for purpose of federal law solely as existing between a man and a woman). Good commentary from Dale Carpenter and Ruthann Robson. Of course, everyone (1st Circuit included) expects this to be resolved by the Supreme Court.

And that got me to thinking. The swing vote, as always, is Justice Kennedy (though DOMA raises important federalism issues that theoretically sway some conservative justices -- well, just color me dubious on that). While Justice Kennedy has distinguished himself as a relatively friendly Justice for LGBT litigants -- writing important majority opinions in Romer v. Evans and Lawrence v. Texas -- there is of course no guarantee how he would vote on the motherlode issue of same-sex marriage. However, it strikes me as relevant that these issues are coming to a head around the same time as the PPACA litigation.

Why? Well, the fact that he's got two major historical decisions coming his way in relatively close succession gives him the chance to "split the baby". Let's say he votes to strike down the Affordable Care Act. Liberals are outraged. A year later, a same-sex marriage case comes to the Court, and he strikes down that law too. Suddenly, he's a liberal hero again. The same-sex marriage opinion gives him a chance to cleanse the prior vote -- making up for it and assuring himself that he's "centrist" and "middle of the road". The known prospect of a liberal-friendly SSM decision gives him the cognitive space to make a conservative-friendly decision on the ACA (or perhaps vice versa).

Of course, this is all vague speculation at this point. But part of my read on Justice Kennedy is he likes to regress to the mean. An anti-ACA decision would represent a major slide to the right -- it would not surprise me if he quickly tried to counterbalance it with a counterweight on the left.

Why Even the Best Case Against Same-Sex Marriage is Morally Unsustainable

"To die for an idea," Anatole France once wrote, "is to place a pretty high value upon conjecture." Presumably this goes double for having others die and suffer for one.

I was thinking a bit more about the "strong" case against gay marriage. By strong, I mean ones that try to take seriously the moral equality of gay and lesbian individuals, that claim to not be predicated on homophobic degradation, but instead about maintaining the stability of what they take to be an essential social institution: marriage (folks like Robert George spring to mind, though the way he presented his argument here seems somewhat different). The claim, as I understand it, is that allowing gay marriage weakens the social value and meaning of marriage as a whole. To the extent that a strong social consensus around the value of marriage is important for societal welfare, then gay marriage can justly be opposed as a potential threat to the institution as a whole. As for civil unions, the argument as I've seen it is not adverse to some mechanism for allowing gay couples to secure most (if not all) of the rights accorded to heterosexual couples, but they worry that gays and lesbians won't be "satisfied" with civil unions, and sets us down the slippery slope to gay marriage. Because the bottom of the slope is so dangerous (they argue), we cannot risk setting down the top.

As I said, I was thinking about this, and I just don't find it remotely persuasive. I barely think it even has a claim to moral seriousness, if we unpack it. So, to the extent that this is the best that can be done ... no. Not flying.

The first concern I have when I hear this argument is that the ship may have already sailed. It is not clear to me that we have a unified definition of marriage in this country any more (if we ever did), and what's more, the exclusion of same-sex couples from marriage is doing at least as much to "degrade" the perception of marriage as an institution amongst liberal-minded persons as their inclusion "degrades" marriage amongst traditionalists. Indeed, if anything it seems like the former effect swamps the latter: I do know of progressive-minded folk whom are deeply ambivalent, at best, about marriage, precisely because they see it as a heterosexist and bigoted institution, one that they may not be able to ethically buy into.

By contrast, I've never actually heard a marriage-traditionalist put their money where their mouth is and actually say they feel like their marriage is directly diminished in any way by the inclusion of gay couples, or that they are at all more ambivalent about getting married or participating in the institution of marriage as same-sex marriage spreads. Rather, they posit a considerably more indirect mechanism: They worry that other people -- the unwashed middle -- will progressively lose touch with value and sanctity of marriage, and that this in turn will make all marriages less meaningful.

This raises the second issue I have -- whether the conservative belief is actually falsifiable. If conservatives were making a personal claim -- "If gays are allowed to marry, then marriage isn't worth it for me" -- this wouldn't be an issue; it would simply be a matter of subjective personal preferences. Likewise for various deontological arguments one could make (that celebration of gay commitment is simply wrong, or, for pro-SSM advocates, that access to marriage is an essential component of human dignity). But the claim they seem to be making (about gay marriage's effect on other people's perception of marriage is an empirical one, and, for the reasons stated above, one I'm exceptionally dubious about. I'm exceedingly skeptical that gay marriage actually has any significant detrimental effect on marriage as an institution (if anything, I predict having a positive effect). So suppose 20 years from now we have a mountain of data in front of us, and it tells us that gay marriage exhibits no noticeable effect on the public's reverence and respect for marriage as an institution. Does their opposition melt away? I'm not convinced it does, because I think the tail is wagging the dog here -- the core belief is that gay marriage is bad, and any empirical scaffolding is just an apologia to try and attach the belief to something that at least gestures at respecting gay human dignity. If it falls away, they'll find something else.

But what of the risk I'm wrong? And here's where we return to Mr. France. Is there a non-zero risk that allowing same-sex marriage will have catastrophic social consequences? Sure, in the sense that there's a non-zero chance of essentially anything causing anything (there's also a non-zero risk that not allowing it will have catastrophic social consequences).

But it is conjecture, and thin conjecture at that -- dependent as it is on presumptions of what everyone else (but not me, of course!) will undoubtedly do as gays get married. It's a prediction that gets harder and harder to sustain each year. And in the meantime, that conjecture is weighed against the concrete material deprivations marriage inequality foists upon gay couples right now. We know that gay couples are sharply restricted in the rights and privileges that they can access vis-a-vis heterosexual couples. We know that even half-steps like civil unions are bitterly opposed by anti-gay marriage advocates because of the risk they'll lead to gay marriage -- putting yet further tangible barriers between gay couples and full equal rights. All of this is justified by ... conjecture, and seemingly a rather weak conjecture at that.

In this light, opposition to gay marriage ends up looking kind of like putting up a minefield in one's front yard to guard against a Canadian invasion. Is there a non-zero chance Canada is out to get us? Yes. If the Mounties do come streaming across our northern border, will the mines come in handy? Yep. But for the time being, that conjecture about Canadian intentions is having the tangible effect of blowing up a bunch of neighborhood kids, and in the face of that rather concrete harm one really can't ethically rely upon such thin conjectures.